Elaine D. Kolish is Vice President and Director of the Council of Better Business Bureau’s Children’s Food and Beverage Advertising Initiative (CFBAI). She spent 25 years with the Federal Trade Commission in several positions, ultimately serving as head of the Division of Enforcement in the Bureau of Consumer Protection.

CFBAI is a voluntary self-regulation program comprising many of the nation’s largest food and beverage companies. The Initiative is designed to shift the mix of foods advertised to children under 12 to encourage healthier dietary choices and healthy lifestyles. It filed comments with an Interagency Working Group which has proposed a set of principles that can guide voluntary self regulation of “child-directed” advertising. Ms. Kolish addresses some issues raised in CFBAI’s comments here.

The Legal Pulse: Generally speaking, what are the goals and benefits of a self-regulatory program like that advanced by CFBAI as compared to government regulation of commercial speech? 

Elaine Kolish: Self regulation is known for its ability to respond quickly and deftly to issues in ways that can reduce or eliminate the need for government regulation or litigation, complement government regulation, or advance positive societal goals. These aims can be achieved without the downsides of potentially heavy-handed, inflexible dictates that cannot adapt rapidly to changing environmental conditions. The Council of Better Business Bureaus’ (BBB) National Advertising Division is the classic example of a self regulation program that earns accolades from both businesses and the Federal Trade Commission (FTC) for the expert and timely way that it adjudicates truth-in-advertising disputes that might otherwise end up being litigated by the government or the parties in court.

The CFBAI builds upon this and other BBB self-regulation programs by providing a way for responsible companies to address societal concerns about food advertising to children. Even though there is no evidence that advertising causes obesity, the CFBAI’s participants are committed to acting in socially responsible ways and being responsive to the marketplace’s desire for healthier products.  BBB’s CFBAI is a trusted third-party that provides leadership, transparency, and accountability for the participants’ commitments to be a part of the solution by limiting their child-directed advertising to healthier products.

The Legal Pulse: CFBAI’s comments on the federal agencies’ report note that the proposed principles proceed based upon a failure to appreciate the changes that have occurred in child-directed food and beverage advertising. How have things changed and what role has CFBAI played in those changes?

Ms. Kolish: We were gratified that the agencies acknowledged that progress and change in food advertising to children have occurred under the CFBAI’s leadership. But we also thought, at least in their written document, that they did not seem to fully appreciate the significance of the participants’ efforts. Given the landmark changes that have occurred in just a few short years – changes that would not have occurred but for CFBAI’s leadership and the companies’ willingness to transform how they do business, we thought they could have been more fulsome in their acknowledgment.  It’s easy now to take for granted that food companies will limit what they advertise to children to products that meet meaningful nutrition criteria. But, in 2006 that was a new and innovative idea. After all, we’re talking about advertising to children for products that are legal to sell and product that parents, not children, actually purchase!

One immediate and dramatic change was that several leading candy companies decided to stop advertising to children.  Other companies reformulated existing products to meet nutrition standards, or stopped adverting (and in some cases even stopped selling) certain products. New products with a healthier profile also came to market. None of these accomplishments were easy or cheap. It took the participants’ hard work and commitment of time and money (lots of money!) to make them happen.  It’s important that these efforts be acknowledged not only for changing the products advertised to children, but changing the attitude and expectations about what can and should be advertised to children. The original 10 participants have grown to 17, reflecting the increasing industry sentiment that voluntary action and self regulation in this area is prudent and positive.  Our participants represent the vast majority of child-directed advertising on television, which is still the primary channel for reaching kids. 

Additionally–as the agencies know, but which bears repeating–the program itself is a dynamic one that has grown and expanded as it has matured from its birth in late 2006. The original requirement that 50% of participants’ child-directed advertising be for healthier products has changed to a 100% requirement (or no child-directed advertising); the option for complying through healthy lifestyle messaging has been dropped; the program now covers newer and emerging social and digital media, in addition to traditional measured media; and the varying company-specific definitions of child-directed advertising have been substantially harmonized.  The CFBAI participants’ ground breaking agreement in July to use newly developed CFBAI category-specific uniform nutrition criteria reflects the most recent positive development. These tough but realistic standards will replace company-specific nutrition standards at the end of 2013.  We have, in far less time than it generally takes the government to propose and promulgate a rule, not only created comprehensive, meaningful program requirements, we’ve significantly expanded them several times. As a result, we have a voluntary program that has changed and continues to change the landscape of food advertising to children in observable and noteworthy ways.

The Legal Pulse: What concerns does CFBAI have with the Interagency Working Group’s definition of “child-directed advertising” and the age range under which advertising is considered child-directed?

Ms. Kolish: Our comment advised the IWG that it was inappropriate to use definitions of child-directed advertising that sweep in advertising and promotional activities that clearly are not child-directed. We also advised that trying to encompass advertising to adolescents is inappropriate.

We also took issue with the IWG’s assertion that its proposed definitions had been “tested” because the FTC had used them for information gathering purposes for reports on marketing to children. It was surprising that the IWG took this view and used those definitions because the FTC itself was aware that those definitions were problematic. Companies that had been required to respond to the FTC’s requests for information repeatedly had advised the FTC that they were being asked to report on non-relevant activities (e.g., promotional activities that were mom or family-directed, not child-directed). Indeed, the FTC even noted in its 2008 Report on Marketing Food to Children and Adolescents that companies had objected to its definitions.

 Definitions that sweep in, for example, packaging that may be “child-appealing,” and hence of interest to parents who shop for their children and who, along with other adults, represent the vast majority of visitors to grocery stores is not the same as “child-directed.According to a 2009 TNS Shopper 360 study, most shoppers do not bring their children grocery shopping.

In contrast, we’ve worked hard with our participants to strike the right balance to cover advertising that is primarily directed at children under 12, and thus minimize the impact on others of the participants’ voluntary restrictions on advertising. Focusing on advertising primarily directed to the under 12 age group reflects a thoughtful and proportionate response by responsible food marketers who participate in self regulation. Expanding self regulation to address adolescents age 12-17, as the IWG proposed, is neither necessary nor appropriate. Our society recognizes that seven-year olds are different from 17 year olds. Adolescents are emerging adults and as such have a greater capacity than children to understand the world around them, including advertising. Accordingly, our society grants adolescents meaningful privileges and responsibilities including the ability to be employed, pay taxes, be licensed to drive vehicles, marry (before 18 with parental consent throughout the U.S., and at 15 without parental consent in one state), be held criminally responsible for their actions in some circumstances, and enlist in the armed services (at age 17 with parental permission). Asking food companies to restrict food advertising to this group is inconsistent with the U.S. practice of treating adolescents more like adults than children. It’s simply ridiculous to propose that adolescents who can drive and handle weapons shouldn’t be allowed to see ads for chocolate chip cookies or French fries.

The Legal Pulse: In what ways do you feel the proposed “voluntary” limitations on food and beverage marketing will be counterproductive for consumers and the goal of improved dietary choices?

Ms. Kolish: In issuing a report, even one that purports to provide only advice for future, voluntary industry action, the government must be mindful of the power and impact of its words and “recommendations.” We were gravely concerned that, because the IWG’s proposed principles were so unrealistic, they would discourage rather than encourage innovation. Government action that could chill new product development and reformulation efforts is not good for consumers.

We analyzed the impact of the IWG’s proposal on products that meet the participants’ CFBAI nutritional commitments and found that only 14% of their CFBAI-listed products (ones they may advertise to children) meet all of the IWG’s proposed principles, using its interim sodium criterion, and only 7% meet all of its principles using the final criteria. These are products that already meet solid, science-based nutritional standards, so the results of our analysis illustrate the extreme nature of the IWG’s propose nutrition principles. Our focus, however, was on whether those principles provided a realistic roadmap for future product changes. Based on our experience working with our participants, we advised the IWG that they did not.  

The IWG’s specific goals for nutrients to limit and for food groups to include exceeded what reasonably can be accomplished within five years, and the longer term goals presented even greater problems. Accordingly, it was highly questionable whether, across the spectrum of foods that are advertised to children (and teens), foods that would meet the IWG’s limits could be produced and, if they could, whether they would be safe, affordable or tasty. No matter how healthy, unless foods taste good, children won’t eat them. Uneaten food is not going to improve their diets. Further, in a period of rising food costs and rising food insecurity, the significance of affordability cannot be overlooked. The importance of safe foods (i.e., ones that are microbiologically stable) is obvious.

We were gratified that the IWG invited the submission of viable alternatives. As part of our comment, we included the new CFBAI category-specific, uniform nutrition criteria that present challenging, yet feasible, goals. Approximately one-third of the products currently advertised to children—which are products that already meet meaningful, science-based, company-specific nutrition standards—do not meet the new uniform criteria. The participants also have agreed to a challenging implementation date of December 31, 2013. After that date, these new criteria will require CFBAI participants to reformulate or stop advertising products that do not meet the uniform criteria.

We are pleased that the importance of these new criteria is being recognized. For example FTC Chairman Jon Leibowitz has stated,

The industry’s uniform standards are a significant advance, and are exactly the type of initiative the Commission had in mind when we started pushing for self-regulation more than five years ago.  The Interagency Working Group should carefully consider this, as well as other stakeholder comments, as we develop the final recommendations required by Congress.  Our agency is committed to playing a role in reducing childhood obesity – and doing it in a pragmatic, nonregulatory way – and we applaud industry for making healthy progress.”

The Legal Pulse:Critics of industry self-regulation often summon the “fox guarding the henhouse” analogy to explain why government oversight is needed. What carrots and sticks can self regulation of advertising utilize to ensure that standards like those created by CFBAI are met? 

Ms. Kolish: The CFBAI principles and its oversight of its participants’ commitments are transparent. We publish our principles, our participants’ pledges, an easy-to-read summary of their nutrition standards, a list of the products that meet their standards, and an annual report that details how we monitor compliance and how the companies are doing on meeting their commitments (which is great). All of those things are “carrots” as they allow the participants’ commitments to be seen and measured. On the other hand, being called out publicly for not meeting those commitments is the proverbial “stick.”  As I’ve mentioned, we’ve accomplished a huge amount in a few short years and changed not only what products are advertised to kids, but the expectations about what should or should not be advertised to kids. To borrow a humorous phrase from David Vladeck, the Director of the Bureau of Consumer Protection at the FTC, the critics “might want to switch to decaf.”