Chapter 3

Protecting Children from Obesity: A History

of Television and Internet Food Advertising
Regulation in the United States

Its just hard not to listen to TV: its spent so much more time
raising us than you have.
(Bart Simpson, Quotes on the Media and Children n.d.)
And somebody asked me: Lucy, is that ethical? Youre
essentially manipulating these children. Well, is it ethical?
I dont know. But our role at Initiative is to move products,
and if we know you move products with a certain creative
execution, placed in a certain type of media vehicle, then weve
done our job. They are tomorrows consumertomorrows adult
consumerso start talking with them now, build that relationship
when theyre younger, and youve got them as an adult.
(Lucy Hughes [from The Corporation], IMDB.com 2013)
Companies have moved away from exaggerating the product
characteristics to a whole new form of advertising, which is
symbolic advertising. The product is pushed not on the basis of
what it can do, or how it tastes, but of its social meaning. So
kids are taught to want candy, or sugared cereals, or soda
because its cool. It will define them as an individual. What you
buy is who you are.
(Juliet Schor, IMDB.com 2013)

This chapter examines one important aspect of the national problem of obesity
among American children and the attempts to resolve it by political means. While
there are many root causes to the epidemic in childhood obesity, this chapter focuses
on only one of them: advertising by food companies to children in their homes,
which many researchers believe entices children to eat the wrong kinds of foods in
excessive quantities. Enticement is a strong word, but it is applicable in this case.
Low-nutrient food advertising uses images of coolness and fun, free games, well-
known characters from television and movies, prizes, and other means to influence
W. Aspray et al., Formal and Informal Approaches to Food Policy, SpringerBriefs
in Food, Health, and Nutrition, DOI 10.1007/978-3-319-04966-3_3,
William Aspray, George Royer, Melissa G. Ocepek 2014

23

24

3 Protecting Children from Obesity: A History of Television

Relation between eating fast-food and

obesity

Spencer, Frank, and McIntosh 2005;

Rosenheck 2008; Chou, Rashad, and
Grossman 2008; Malik, Schultze, and Hu
2006; Pereira et al. 2005

Advertising rather the sedentary practice of

watching television that mainly contributes
to obesity

Zimmerman and Bell 2010

Insufficient cognitive maturity to evaluate

an advertiser's claims or possibly not
recognize the difference between
advertising and other programming
Constitutional rights of children as a
vulnerable population

Harris, Bargh, Brownell 2009; Connor

2006; John 1999; Chernin 2008;
Livingstone and Helsper 2006
Harris et al. 2009

Fig. 3.1 Related scientific literature on children, television watching, food, and obesity

a young population, some of whom do not have the cognitive maturity to evaluate
an advertisers claims or possibly not even recognize the difference between advertising and other programming. Thus, the overall story presented here is one about a
vulnerable population (children) and the efforts by adults to protect this population
from these enticements by political means. Figure3.1 provides some of the background scientific literature on children, television watching, food, and obesity that
underpins this discussion. (For an alternate and decided by minority approach to the
causes of childhood obesity, see Cornwell and McAlister (2011).)
The concern about the harmful effects of food advertising on childrens health is
similar in many respects to concerns about gambling, violent video games, alcoholic
drinking, and especially cigarette smoking among children; it is a part of a larger narrative concerning the politics of enticement in America. Figure3.2 presents examples
of the research literature on advertising these other enticements to children. The literature
on cigarettes is by far the largest, and there are many parallels between the advertisement to children of nonnutritious foods and the advertisement of cigarettes.
The analysis in this chapter is presented in five parts, following a roughly chronological account. The first section discusses efforts in the 1970s in which U.S. federal
agencies attempted with limited success to regulate food advertising to children on
televisionfirst proposed to resolve an epidemic of tooth decay rather than an epidemic of obesity. The second section focuses on the following quarter century, during
which the political climate had generally moved away from federal regulation.
Practically the only regulation of food advertising during this era was self-regulation
by industry. This period was characterized by weak regulatory efforts and growing
problems with childhood obesity. The third section discusses the efforts during the
first decade of the twenty-first century to find new ways to fight childhood obesity as
it became increasingly apparent to the scientific community and the general public
that the nation faced a serious problem. The final two sections examine two major
risks to any of the proposed solutions to regulation of food advertisingone section
discusses the argument by industry that companies have a First Amendment right to
free commercial speech based on court decisions appearing between 1976 and 2001;
the other section discusses the issues that arose as food advertising expanded into the
new medium of the Internet. A short final section offers some conclusions.

3 Protecting Children from Obesity: A History of Television

Cigarettes

Alcohol

Violent video
games
Gambling

25

Schor and Ford 2007; Courtney 2006; Frieden, Dietz, and Collins
2010; Brownell and Horgen 2004; Montgomery and Chester 2009;
Sargent, Gibson, and Heatherton 2009; Kline et al. 2006; Nelson 2006;
Hanewinkel et al. 2010; Morrison, Krugman, and Park 2008;
Krugman and King 2000; Bayer and Kelly 2010; Celebucki and
Diskin 2002; Luke et al. 2011; DiFranza et al. 1991; Shadel, TharpTaylor, and Fryer 2009; Hawkins and Hane 2000; Charlesworth and
Glantz 2005; Sebrie and Glantz 2007; Forsythe and Malone 2010;
Gostin 2009; Capella, Taylor, and Webster 2008; Sung and
Hennink-Kaminski 2008; King et al. 1998; Blum 2010; Pierce et al.
2010; Givel 2007; Hoek et al. 2010; King and Siegel 2001;
Goldstein et al. 1987; Henriksen 2010; Ciolli 2007; McCool et al.
2012; Freeman et al. 2009; DiRocco and Shadel 2007; Kelly, King,
et al. 2011;Carter, Mills, and Donovan 2008; Pollay et al 1996;
Henrikson et al. 2008; and Botvin et al. 1993
Goldfarb and Tucker 2010; Hebden 2011; Anderson et al. 2009;
Nelson 2010; Gentry et al. 2011; Gunter, Hansen, and Touri 2009;
and Barry and Goodson 2010
Barlett and Anderson 2007; Bijvank et al. 2009; Rose-Steinberg
2010; Chang 2010; Hunter, Lozada, and Mayo 2011; Strasburger
2009; Wojciechowski 2010; Kenyota 2008; Becker-Olsen and
Norberg 2010; and Collier, Liddell, and Liddell 2008
Monaghan, Derevensky, andSklar2008

Fig. 3.2 Research literature on advertising other enticements to children

An important theme running throughout this chapter is that the efforts to regulate
television advertising have been shaped by the general attitudinal climate toward federal
regulation of industry among the American public. At times, the public has believed that
industry is too powerful and acts in its own self-interest in ways that must be reined in
by federal regulation. At other times, there has been greater public trust in industry and
a belief that regulation inhibits competition and decreases economic efficiency. In these
times of antiregulatory sentiment, industry has pushed for the replacement of government regulation with industry self-regulation and voluntary compliance.
The public move toward government regulation of industry has been cyclical. The
greatest period of regulation was during the Progressive Era in the early twentieth
century. Proregulatory sentiment died off during the 1920s but returned as part of the
New Deal legislation to overcome the social effects of the Great Depression. Concern
about abuse of government regulatory power led to new limitations on the policing
powers of federal agencies after the Second World War. However, support for federal
regulation picked up once again during President Johnsons Great Society program in
the 1960s, but by the 1970s there was again a move toward less regulation of industry.
In the 1980s, the Reagan administration attempted substantive deregulation of industry and placed new restrictions on the right of agencies to regulate. There has been a
long run of popular support for deregulation since the 1980s. The exceptions during
this era have been made selectivelyto return to regulation of specific areas precipitated by scandals such as the savings and loan crisis and failure of Enron while leaving

26

3 Protecting Children from Obesity: A History of Television

deregulation in place in other spheres. Even today, the U.S. population still largely
favors deregulation. (Cyclical American attitudes toward industry regulation and its
implications for childhood obesity were noted by Alderman etal. (2007), who points
the reader to a strong literature on the history of industrial regulation in America:
Croley 2003; Estlund 2005; Glaeser and Schliefer 2003; Hanson and Yosifon 2003;
Kahn 2002; Rabin 1986; Rose-Ackerman 1990; Rubin 2005.)
The first efforts to regulate television advertising of food to children occurred in
the 1970s, led by government bureaucrats who had been installed in their jobs when
federal regulation of industry was ascendant. However, just at the time the Federal
Communications Commission (FCC) and the Federal Trade Commission (FTC)
began to consider regulation of advertisements of nonnutritious foods on childrens
television, public sentiment was turning against government regulation.
Antiregulatory sentiment has continued ever since, and the only thing that has
enabled a stronger government hand in controlling industry has been the overwhelming evidence that there is a worsening epidemic of childhood obesity in
America, which became apparent around 2000. The large number of cases of childhood obesity makes this an exceptional case, much like the savings and loan crisis.
The overarching theme of this book is the interplay between formal and informal
approaches to food policy. The complexity of this interaction can be appreciated by
simply listing the major players in the policy area covered by this chapter, viz., the
regulation of food advertising directed at children appearing on television or the
Internet. On the formal policy side, there are the federal agencies (FCC, FTC,
Department of Health and Human Services) and Congress (which passed various
relevant pieces of legislation including the Childrens Television Act, FTC
Improvement Act, Childrens Online Privacy Protection Act (COPPA), American
Recovery and Reinvestment Act). The Institute of Medicine has an interesting position. It has such a positive reputation in Washington that it is often treated as part of
the formal policy-making process even though it and the other arms of the National
Academies of Science are actually private, nonprofit organizations. On the informal
policy side in support of less federal regulation, there are media companies (Disney),
media trade associations (National Association of Broadcasters), food companies
(McDonalds, Kraft Foods), advertising trade associations (National Advertising
Review Council), general business trade associations (Council of Better Business
Bureaus (CBBB)), and industry associations put together for a specific purpose in
this food policy battle (Childrens Advertising Review Unit, Childrens Food and
Beverage Initiative, Sensible Food Policy Coalition). On the proregulatory side of
these policy battles are private foundations (Robert Wood Johnson Foundation), professional associations (American Psychological Association, American Academy of
Pediatrics), and public interest nonprofits (Action for Childrens Television; Center
for Science in the Public Interest Consumers Union; Committee on Childrens
Television; Council on Children, Media, and Merchandising).
It is beyond the scope of this chapter to try to differentiate political action
among industries (e.g., broadcast versus food) and among players in a given industry (e.g., difference among individual firms within the food industry and between
the firms and their industry trade associations). While occasionally an individual

3.1Television Advertising of Food to Children: Early Efforts at Regulation

27

company will act out of step with the rest of its industryand we mention a few
instancesthere is a great deal of uniformity within the corporate sector involved
with advertising food to children on television and the Internet. (For more on corporate action, see Hillman etal. 2004; Scholzman 2011; Schuler etal. 2002.)

3.1 T
 elevision Advertising of Food to Children: Early Efforts
at Regulation by the FCC and the FTC
Much of the public concern and policy response to childhood obesity has surrounded
the advertising to children of low-nutrient foods high in fat and sugar, especially
sugared drinks, sweetened cereals, and fast food meals. Advertising on childrens
television programming has been identified since the 1970s as a major factor contributing to the high frequency with which these low-nutrient foods appear in the
diets of American children.
When the public first began to become concerned with television food advertising to children, there was only one major television show directed at preschoolers,
Captain Kangaroo. It showed on network television from 1955 to 1984. However,
several major changes occurred to make childrens television ads more prevalent
and hence of greater concern. During the decade of the 1960s, the national television networks regularized their programming to show cartoons every Saturday from
8:00a.m. until noon. This concentration of childrens programming was designed
mainly to attract advertisers. With the growth of cable television in the United States
in the 1970s came the rise of cable networks directed at children. Nickelodeon,
providing daytime childrens programming, was founded in 1979. In 1985
Nickelodeon created Nick at Night, offering in the evenings and overnight family
programming (also of interest to children) such as reruns of Bewitched and the Mary
Tyler Moore Show. Competition appeared on cable and satellite television, such as
the Disney Channel (1983) and the Cartoon Network (1992). (For a discussion of
branding on childrens television networks and its influence on children, see Preston
and White 2004; Connor 2006; Robinson etal. 2007.)
The amount of television watched by children grew steadily over the final three
decades of the twentieth century. The number of television sets in American households grew, and increasingly television receivers were placed in childrens bedrooms, where they could be watched without parental supervision. By the year
2000, children spent more time (1,250h per year on average) watching television
than they spent in schoolin fact more hours than they did doing any activity other
than sleeping (Byrd-Bredbenner 2002; Byrd-Bredbenner and Grasso 2000; Holt
etal. 2007; Desrochers and Holt 2007).
During the last three decades of the twentieth century, the frequency of food
television advertising also increased. This is not surprising, given that the food
industry is the second largest advertiser in the United States, after the automobile
industry (Story and French 2004). One-eighth of all consumer dollars are spent on
food purchases; given that food is a repeat purchase and highly branded, there is

28

3 Protecting Children from Obesity: A History of Television

great incentive for the food industry to advertise (Story and French 2004). It is
believed today that middle- and upper-class white American children see between
20,000 (Schor and Ford 2007) and 40,000 (Kunkel etal. 2004; also see Powell etal.
2007; Holt etal. 2007) ads each year, and that poor, black, and Hispanic children
have even greater exposure (Grier and Kumanyika 2008).
Food advertising directed at children goes back at least as far as the 1930s, when
the Mickey Mouse character was licensed for use by Post Toasties cereal. Beginning
in the 1960s, and continuing throughout the rest of the century, ads for foods typically consumed by children were increasingly targeted at the children themselves
rather than at their parents. More than 80% of childrens ads were for toys, cereals,
candies, and fast-food restaurants (Byrd-Bredbenner 2002; also see Batada etal.
2008; Folta etal. 2006; Powell etal. 2007). The vast majority of the food ads were
for low nutrition, highly sugared foods (Ippolito and Pappalardo 2002). Breakfast
cereal ads were particularly common in the 1970s, but the number of fast-food restaurant ads grew, especially during the 1990s. It was hard to watch a Saturday morning of programming without seeing ads for Kelloggs Frosted Flakes, McDonalds
Happy Meals, or Skittles candy. (For an interesting national comparison, see studies
examining food advertising directed at children in Canada, including Nadeau 2011;
Dhar and Baylis 2011; Richards and Padilla 2009; Kent etal. 2012.)
The general consensus among the public health advocates, if not among the
advertising and food industry executives, was that food marketing was having a
significant negative impact on childrens food consumption, taste, and health. The
ads, it was believed, were leading to hedonic hunger urges in the absence of
energy deficits, encouraging snacking at nonmeal times, consuming less healthy
food choices, establishing more materialistic values in children, and contributing to
health problems such as obesity and high cholesterol. There was particular concern
about the impact on the relationship between children and their parents. Three quarters of parentchild communications about products involve children demanding
things they have seen on television. Children begin to nag for products as early as
age 24 months, and 75% of the time the first instance of nagging occurs in a supermarket. Parents frequently yield to their childrens pester power and, when they
do not yield, the children often become angry or disappointed. (See, for example,
Hastings etal. 2003; Story and French 2004; Lowe and Butryn 2007; Galst and
White 1976; Nadeau 2011; Pettersson etal. 2004; Center for Science in the Public
Interest 2003 on these points. For a theoretical framing of the persuasive power of
advertisement upon children, see Buijzen etal. 2010.)
Advertisers were targeting children of almost every age with their ads. The ads
on television programs that targeted preschoolers focused mainly on building brand
recognition and loyalty, not on immediately selling products. They used images of
children or licensed figures (e.g., Ronald McDonald or Tony the Tiger) having fun
or doing exciting things; sometimes there were few or no food images in the ads
(Connor 2006). For older children and adolescents, there were efforts not only to
build brand recognition and loyalty, but also to market specific products. Marketers
hope was that children would either pester their parents to buy these products or, as
teenagers with disposable income, consider buying them for themselves. One study

3.1Television Advertising of Food to Children: Early Efforts at Regulation

29

identified the strategies and elements in television commercials from 2004 to 2005
targeting 8- to 12-year-olds: The most frequent promotional strategies were the use
of jingles/slogan, showing children with food, use of product identification characters, cross-selling of toys, and being directed to a website. The most common attention elements were showing real children, animation, animals with human
characteristics, fast-cutting scenes, exciting/fast-paced music, humor, and color
effects (Page and Brewster 2007).
In 1968, when Peggy Charren became concerned with the lack of quality television programming for her 4-year-old daughter, she formed the nonprofit group
Action for Childrens Television (ACT) (Lawson 1991; on the general history of
children and television, see Pecora etal. 2006; Huston etal. 1990; Leifer etal. 1974;
Zimmerman and Christakis 2005; Hofferth and Sandberg 2001). Over the next several years, ACT worked with other large national organizations including the
American Academy of Pediatrics, the National Education Association, the National
Parent Teachers Association, and the Center for Science in the Public Interest
(CSPI) and its spinoff organization, the Center for Study of Commercialism, as well
as many religious organizations. Although critics referred derogatively to ACT as a
bunch of housewives, it was operated in a highly professional manner and grew by
the late 1970s to employ a staff of 15 (dropping to a quarter of that size a decade
later and disbanding in 1992). ACT pursued its battles mainly in the courts (Lawson
1991; New York Times 1992; Pecora 2007).
Responding in part to calls from ACT to either limit or eliminate ads on childrens television programming, both the FTC, which regulates advertising, and the
FCC, which regulates television, held hearings (Story and French 2004; Alderman
etal. 2007; Uscinski 1984). The FCC took the first actionin 1974calling not
only for limits on the number of minutes of advertising on childrens television
programming, but also requiring the introduction of rhetorical devices that more
clearly separated programming from advertising (and now a word from our
sponsor) and banning host selling (the process by which characters from the show
are used to advertise goods in the commercials that air during that show).
Interestingly, ACT was concerned not so much about the number of junk food ads
but instead about the large number of vitamin ads directed at children. (For a study
of host selling and the associated legal issues, see Campbell 2006.)
There were already concerns in the scholarly community about the effect of
advertising on children. Later research provided evidence that advertising to children contributes to materialism, life unhappiness, parentchild conflict, disappointment, and dissatisfaction (Zuckerman and Zuckerman 1985; Buizjen and Valkenburg
2003a, b). Regulatory efforts targeting childrens advertising had previously been
used for public health purposes, notably including the Public Health and Cigarette
Smoking Act of 1970, which banned cigarette advertising on radio and television as
of 1971 (Hamilton 1972; Holak and Reddy 1986; Eckard 1991; Pollay 1995). Thus,
there was a wide-held belief in regulation as an effective means of serving public
health goals.
In 1973, before the FCC could take action, the National Association of
Broadcasters (NAB) took measures to avoid federal regulation by voluntarily

30

3 Protecting Children from Obesity: A History of Television

changing its Television Code so as to reduce the amount of time allotted to ads
during childrens programming. After several early tweaks, the Association settled
on an advertising limit of 9.5min per hour on weekends and 12min per hour on
weekdays. (The NAB is the trade organization for the U.S. commercial broadcast
industryformed in 1922 as the National Association of Radio Broadcasters,
renamed the National Association of Radio and Television in 1951 and the NAB in
1958. It lobbies on various policy issues on behalf of the broadcast industry and
carries out various educational and research activities concerning First Amendment
rights through its associated foundation.) As part of its licensing renewal standards,
in 1974 the FCC adopted rules for time allotted to ads in childrens programming
that mirrored those set by industry (Kunkel and Watkins 1987; Kunkel 1991;
Campbell 1999).
In 1984, in a deregulatory move originating in the Reagan administration, the
FCC rescinded all limits on advertising during childrens programming, leading to
a rapid increase in the number of ads appearing (Byrd-Bredbenner 2002). The
Childrens Television Act was passed overwhelmingly by Congress in 1988 to
address this problem, but the Act was vetoed by President Reagan, who called it an
assault on freedom of expression. This led to another wave of increase in the number of ads shown on childrens programming. Finally, in 1990, The Childrens
Television Act was enacted as law. The voluntary restrictions from the broadcasting
industry remained in effect all of this time, until the late 1990s, when the Justice
Department ruled that the voluntary Television Code was a violation of antitrust law
and its time restrictions were thereby eliminated (Byrd-Bredbenner 2002; Jordan
2008; Mello 2010).
The Childrens Television Act did not regulate the content of the advertisements,
only the amount of advertising that appeared on childrens programming (setting
limits of 10.5min per hour on weekends and 12min per hour on weekdays, which
were again embodied in the FCC broadcast license renewal standards). During 1977
and 1978, four public interest groups (ACT, the CSPI, Consumers Union, and the
Committee on Childrens Television) filed petitions with the FTC to take action
against food advertisements directed at children. According to the authority granted
to them by Congress, the FTC could control both unfair and deceptive ads, with the
right to both make regulations and bring lawsuits. In 1978 the FTC opened public
hearings about a possible rulemaking known as KidVid. The agency requested public comment on a plan to ban all advertising for children too young to understand the
nature of commercials. For children 811, the plan was to ban advertising for all
sugared products; for older kids, the plan was to introduce prohealth public service
announcements to counter the claims of the sugared food advertisers. The FTC also
proposed banning host selling and restricting ads that equated sugar with fun.
Drawing heavily on a 1997 report from the National Science Foundation, the FTC
produced its own report arguing that food advertising on childrens television is
both unfair and deceptive because children do not have the cognitive capabilities to
understand the persuasive intent of advertising. The potential harm to children cited
in the KidVid hearings was not obesity but instead the likelihood of dental caries

3.1Television Advertising of Food to Children: Early Efforts at Regulation

31

from sweetened foods and beverages. At the time, half of American children by age
2 already had gum disease and at least one cavity. (For a retrospective review of
KidVid, see Westen 2006; Pomeranz 2010; Wilde 2009.)
There was fierce opposition from the food, toy, broadcasting, and advertising
industries to this potential rulemaking. Farmers were also opposed, as was the
tobacco industry, which was concerned that regulation of food advertising would set
a precedent for tobacco advertising. (Cigarette ads were already banned on television and radio, as of 1971. However, smokeless tobacco ads aired until 1986. During
the 1970s, 1980s, and most of the 1990s, there was still tobacco advertising in magazines and newspapers, and on billboards.) The FTC received over 60,000 written
comments and the transcripts of the hearings ran to over 6,000 pages. These industries argued that they had a First Amendment right to advertise as a form of commercial speech. The FTC had trouble providing strong scientific evidence that
demonstrated a causal relationship between the advertising and the likelihood of
cavities. The FTC also had trouble deciding on which specific products should be
banned from advertising to children (e.g., potato chips and dried fruit are more cariogenic than candy), and the decision concerning which programs should be subject
to advertising restrictions was difficult because children watched not only cartoon
programs but also family programs that had a mixed audience of adults and children. For example, shows such as I Love Lucy and The Andy Griffith Show had large
numbers of children viewers.
The industries were successful in their lobbying efforts. Registering its displeasure with the FTCs proposed regulation, Congress refused to approve the FTCs
entire operating budget. However, the FTC stood firm in its plans, which led
Congress eventually to pass in 1980 the sardonically named FTC Improvement Act.
It essentially eliminated the Commissions rights to regulate unfair practices,
although it left in place its right to bring post hoc suits against deceptive practices
(Story and French 2004; Pomeranz 2010; Alderman etal. 2007; Mello 2010). The
Act specifically forbade the FTC from taking any strong measures to restrict childrens television advertising. Based on these actions and the appointment by
President Reagan of a new FTC Commissioner who was not sympathetic to a strong
regulatory hand by the Agency, the KidVid rulemaking initiative was abandoned in
1981. The practical outcome was to stop not only the FTC, but also every other
federal agency from being a regulator of advertising on childrens programming for
the next 20 years.
The FTC Improvement Act was the product of the changing political sentiment
in the United States against federal regulation. Antiregulatory sentiment was a hallmark of the Reagan administration. The attitude was that individual action was a
personal responsibility (Alderman etal. 2007). If an individual ate unhealthy things
or did not eat in moderation, it was the individuals fault and not the responsibility
of the federal government. An influential editorial ran on March 1, 1978 in the
Washington Post that captured this sentiment well, calling the FTC the National
Nanny. (For a discussion of the FTC in the 1970s and a reprint of the editorial, see
Pertschuk 1982.)

32

3 Protecting Children from Obesity: A History of Television

3.2 Self-Regulation by the Food and Advertising Industries

If the federal government was not going to regulate food advertising to children,
who would? The answer for more than 20 years was that industry regulated itself
through an organization called the Childrens Advertising Review Unit (CARU). In
1924 the American Association of Advertising Agencies approved a Creative Code
that prohibited its members from knowingly writing advertising copy that contains:
false or misleading statements or exaggerations, visual or verbal; testimonials that
do not reflect the real opinion of the individual(s) involved; price claims that are
misleading; comparisons that unfairly disparage a competitive product or service;
and statements, suggestions or pictures offensive to public decency or minority segments of the population (AEF 2005). In 1971, in the face of public concern about
the truthfulness of advertising and the possibility of federal regulation, the advertising industry and the CBBB banded together to create a system for national voluntary self-regulation of the advertising industry known as the National Advertising
Review Council (renamed in 2012 as the Advertising Self-Regulatory Council)
(American Association of Advertising Agencies 1990). The system originally
included a National Advertising Division that provided a system for processing
complaints about specific advertising campaigns without the time and expense of
litigation, a National Advertising Review Board that provided an appeal process
when the challenger or advertiser did not agree with an NAD decision, and Local
Advertising Review Panels. CARU was added to this system in 1974, the Electronic
Retailing Self-Regulation Program was added in 2004, and for online behavioral
advertising the Online Interest-Based Advertising Accountability Program was
added in 2011 (AEF 2005; ASRC 2012).
In 1973, several members of Congress asked FTC chairman Michael Pertschuk
to investigate and possibly regulate television advertisements directed at children.
To stave off federal regulation, the National Advertising Review Council created
CARU, under the administration of the CBBB. CARUs policies covered childrens
magazines and childrens television programs, but not family television despite the
fact that many children watched these family programs. The rules, set by the CBBB
and three advertising trade associations, provided guidelines that were intended to
assure that these ads were not untruthful, misleading, or inappropriate. CARU based
these guidelines, for example, about product claims or sales pressure, on the fact
that children had limited cognitive skills in order to understand and process ads.
(For a general discussion of CARU, see Story and French 2004; Alderman etal.
2007; Fried 2006; Armstrong 1984.)
An independent review of CARU was taken by a business school professor
(Armstrong 1984). He found that the investigative casework at CARU was light.
During its first 28 years, CARU reviewed a total of approximately 150 ads for food
products and services (less than 15% of all the ads it reviewed) and only ruled formally on 57 food adsabout 2 per year. The level of activity increased or decreased
over timecorresponding to external pressuresreaching a high point of activity
in 1978, when there was threat of FTC regulation. The staff (four people) and budget (just over $100,000 per year) were too meager to carry out the investigative

3.2Self-Regulation by the Food and Advertising Industries

33

function adequately. The funding came entirely from industry, and CARU was
beholden only to industry. CARU has no strong sanctions to apply to companies that
broke its advertising policies. Armstrong argued that CARU would have been more
effective if, instead of focusing on investigative functions, it had spent more of its
funding on the development of better advertising guidelines, seminars to teach
advertisers how to advertise properly, clearinghouses of research on advertising and
children, and review of ads before they appear on televisionall of which CARU
did to some limited extent in its early days.
Other critics noted additional problems. The CARU policies were lax, for example, allowing cartoon characters to appear in advertising on other shows, only being
prohibited by CARU regulations from appearing in ads during the program in which
the character appeared, and allowing claims to be made about the fact that a nutritionally depleted sweetened cereal was part of a nutritious breakfast so long as the
image showed the cereal in a setting that included other foods that would, together
with the cereal, constitute a nutritious breakfast. The CARU regulations, which
focused on issues of accuracy and deception in specific ads, overlooked the fact that
the massive number of ads in itself created an environment that had a strong influence on children (Byrd-Bredbenner 2002).
Critics such as Action for Childrens Television and the Council on Children,
Media, and Merchandising believed CARU did not go far enough, and they continued to push for federal regulation. In fact, the creation of CARU was not sufficient
to prevent the FTC KidVid regulatory hearings, but once Congress stopped the
FTCs regulatory efforts, CARU was the only regulatory body that remained. Many
of the largest food companies, such as McDonalds, General Mills, and Hershey,
became long-standing supporters of CARU.
Over time, the process of regulating food marketing to children became more
complex than it had been at the time of KidVid and CARUs creation. Marketers
began to employ child psychologists and apply more nuanced scientific findings to
make their messages to children more effective. For example, Kids as Customers:
A Handbook of Marketing to Children (McNeal 1992) shows how to apply findings
from developmental psychology to more effectively persuade children. A secondary
industry developed to provide this marketing expertise to the food companies. For
example, the Geppetto Group, a New York-based marketing firm that is part of the
British advertising conglomerate WPP Group, taught CocaCola, McDonalds,
Frito-Lay, Kraft, and other clients how to improve their persuasiveness through the
use of applied psychology and anthropology. In a counter to commercial use of
psychology, Harris etal. (2009b) called for new psychological research as the basis
for what they call a food marketing defense model aimed to counter harmful food
marketing by better understanding the nature of awareness, understanding, ability,
and motivation to resist this marketing.
In a development that sociologist Juliet Schor calls the commercialization of
childhood, companies have instituted multipronged marketing campaigns to teach
children to become life-long consumers, especially of particular national brands
(Schor 2005; also see Hill 2011; U.S. General Accounting Office 2000). Advertising
at first appeared in a single medium such as a television advertisement or on a

34

3 Protecting Children from Obesity: A History of Television

Television advertisement
Special packaging of food products
Creation of licensed figures or games for
branded foods
Product placements in movies and comic
strips
Giveaways (also known as premiums)
Character licensing from movies for new
food products
Branded books and toys
Other branded products
Promotional tours

Peer-to-peer marketing

Product fan clubs

Email lists of people interested in a
particular brand or product
Exclusive selling rights in public schools
Incentive programs linked to educational
activities
Advertisements on Channel One, the
national in-school current events program
Food-company sponsored curricula such as
using their products in nutrition and
science materials handed out in schools
Interactive food company websites

Dexters Lab GoGurt characterized as a

scientific invention
Pez containers with cartoon characters on
top
Sneak King advergame, featuring the
Burger King king
Campbells Soup and Goldfish crackers in
Alvin and the Chipmunks
toys in McDonald's Happy Meals
Superman Crunch breakfast cereal
Oreo Cookie Counting Book
Barbie dressed in a McDonald's uniform
Nabisco Nilla Wafers banana pie eating
contests at various theme parks
Proctor and Gamble's Tremor marketing
arm, which has recruited 240,000 young
people to promote its products in everyday
settings
Burger King Kids Club with its five million
members
Jack in the Box Connect
Pouring rights for PepsiCo products
McSpellit Club in which the student
receives free or discounted food for getting
good scores on spelling tests
For Sunny D sweetened orange drink
California high schools sing videos, DVDs,
and worksheets created by Kraft and the
egg, pork, and beef councils
McDonalds McVideogame
(http://www.mcvideogame.com/indexeng.html)

Fig. 3.3 Modern multiplatform food advertising to children. Source: Schor and Ford 2007;
Grigorovici and Constantin 2004; Montgomery and Chester 2009; van Reijmersdal etal. 2010;
Metrock 2013; Samuels and Associates 2006. Also see Linn and Golin 2006; and Linn and
Novosat2008

billboard, and regulatory efforts were made to keep advertising campaigns one-
dimensional (e.g., no program characters appearing in the advertisements). But
increasingly, industry used a coordinated effort to approach children simultaneously
through multiple media, multiple techniques, and sophisticated psychological
means. Figure3.3 presents examples of the many elements of this modern marketing technique. (It is beyond the scope of this chapter to examine regulation and

3.3A New Public Concern About Childhood Obesity

35

self-regulation of advertising to children using media other than television and the
Internet. Some examples of literature that discuss this issue include Beales etal.
2004; Rotfeld and Parsons 1989; and Wilde 2009.)
Children sometimes understood what the food companies are trying to do with
their advertising. For example, in a focus group conducted by academic researchers
with children about what the food companies might do in order to sell more cereal,
one child answered: I would make my cereals addictive, I would cover all of the
cornflakes in nicotine and then people would be addicted and then they would have
to buy more (Hill and Tilly 2002). It is of course not clear how indicative this one
child is of the understanding of advertising by children in general; and understanding the concept of advertising does not mean being able to resist it, or even of recognizing it in its many different forms.

3.3 A New Public Concern About Childhood Obesity

While there was not much action on reining in television food advertising to children during the 1980s and 1990s, the issue received new public attention in the first
decade of the new century. Part of the stimulus was the Surgeon Generals pronouncement in 2001 about a childhood obesity epidemic in America, but in fact in
this first decade of the twenty-first century a number of nonprofit and government
groups began to pay attention to this problem and take action. In 2004, the American
Psychological Association published a study about advertising and children, focused
on the difficulties that children have in both recognizing and evaluating persuasive
claims by advertisers (Kunkel etal. 2004). The report expressed concern about
online advertising, unsupervised viewing of television advertising (with the increase
of television sets in childrens bedrooms), and advertising in schools (e.g., product
placements in textbooks and commercials on Channel One school newscasts). It
identified two cognitive skills essential for children to comprehend ads: the ability
to differentiate ads from programming, which they report that 4- and 5-year-olds are
typically not able to do; the ability to understand the persuasive intent of ads and
evaluate claims made in ads, which the study argues are cognitive skills typically
not yet present in most 7- or 8-year-olds. Some concepts appearing in ads the study
found to be beyond the cognitive abilities of most children in the target audience
concepts such as part of a balanced diet. What makes the situation more troublesome, the study argued, is that the ads are effective, especially when they involve
premiums or celebrity or cartoon characters. More than half of children could recall
a product after only a single viewing of an ad. The authors also mentioned other
problems created by the advertising, such as increasing parentchild conflict and
promotion of materialistic attitudes in children. Prosocial, public service announcements are often of limited effectiveness, the study argued, because these ads do not
appear frequently enough on television.
It was not only the American Psychological Association that raised concerns. In
2004 the Henry J. Kaiser Family Foundation produced a report on the increasing use

36

3 Protecting Children from Obesity: A History of Television

of media by children, suggesting medias role in the obesity crisis (Kaiser Family
Foundation 2004). That same year, the CSPI, which had taken an interest in this
advertising issue since the 1970s, called into question seven advertisements in the
magazine National Geographic Kids. CARU admitted that five of these ads were in
violation of its principles but had no sanctions to levy against the advertisers. CSPI
called for food ads to be banned from childrens television and magazines. The
Campaign for a Commercial-Free Childhood, organized in 2004 out of the Harvard
University Judge Baker Childrens Center, targeted specific food manufacturers
including General Mills, Nabisco, and Post to ban food advertisements to children.
Two years later, the American Academy of Pediatrics urged its members to contact
Congress about restricting these advertisements (American Academy of Pediatrics
2006; Grimes 2008).
But it was the 2005 report by the Institute of Medicine, Food Marketing to
Children and Youth: Threat or Opportunity? that finally stimulated action (McGinnis
etal. 2006; Wilde 2009). The Institutes report provided a comprehensive review of
the scholarly literature (123 articles) on children, food, and advertising. Its analysis
showed that the research literature provides strong evidence of the impacts of television advertising, although less strong evidence concerning the impact of other marketing media such as company Internet websites; also, strong evidence for
proximate outcomes such as childrens attitudes about foods and food choices,
but less strong evidence about long-term weight gain. The report concluded that
these marketing practices are not consonant with healthy diets for kids. Understanding
the FTCs earlier political debacle with KidVid and the continuing political uneasiness with federal regulation, the Institute called on the food and advertising industries to self-regulate, but called for the government to step in if industry had not
acted effectively after 2 years. The report also called upon the FTC to monitor the
food industrys self-regulation efforts.
As public interest in childhood obesity as a public health issue increased, the
prestigious Institute of Medicine began to pay more attention. While the Institute
typically issued between 50 and 100 reports each year, it had seldom studied childhood obesity in the past. There had been reports on diet issues related to the federal
Women, Infants, and Children program in 2000, 2002, 2004, and 2005, and a report
on weight management in the military in 2003, but there were no general studies of
childhood obesity in the decade prior to 2005. However, in the same year that the
food marketing report came out, the Institute issued a report entitled Preventing
Childhood Obesity: Health in the Balance, which made wide-ranging recommendations for action by local, state, and federal governments; industry and media; health-
care professionals; community and nonprofit organizations; schools; and parents.
The Institute released another report the same year, Preventing Childhood Obesity:
Life in the Balance (Koplan etal. 2005).
In response to this latter report, the Robert Wood Johnson Foundation asked (and
funded) the Institute to assess various childhood obesity prevention programs,
which resulted in three additional Institute of Medicine (2006a, b, 2007) reports:
Progress in Preventing Childhood Obesity: Focus on Schools, Progress in Preventing
Childhood Obesity: Focus on Industry, and Progress in Preventing Childhood

3.3A New Public Concern About Childhood Obesity

37

Obesity: How Do We Measure Up? Later in the decade, the Institute of Medicine
(2008, 2009, 2010) published three additional reports related to childhood obesity:
Nutrition Standards and Meal Requirements for National School Lunch and
Breakfast Programs, The Public Health Effects of Food Deserts, and School Meals:
Building Blocks for Healthy Children.
The Robert Wood Johnson Foundation established its own program in 2008,
entitled Healthy Kids, Healthy Communities (Ohri-Vachaspati etal. 2012). The
programs goal was to follow up on the initial Preventing Childhood Obesity report
and address obesity by changing local policies and environments. The grants made
to communities under this program so far have focused on giving incentives to
retailers to sell healthier foods in food deserts, making purchase of foods from farms
more viable, improving access to public outdoor recreational facilities, and enhancing the infrastructure for walking and cycling. It is too early to evaluate the overall
success of this program.
Perhaps in response to the Institutes Food Marketing report, Kraft Foods surprised the rest of the food industry in 2005 by announcing that it would create no
new television advertisements for certain lower nutrient foods in its product line and
that it would phase out other marketing communications of these products (Page
and Brewster 2007; Ellison 2005; Simon 2006 is highly critical of Krafts initiative).
This action angered some of Krafts competitors, while public health advocates
lauded the action (Wootan 2005). Kraft shifted its advertising budget targeted at
children to more healthy alternative products such as sugar-free Kool-Aid. In the
next several years, some of Krafts competitors followed suit, mainly under the auspices of the Childrens Food and Beverage Advertising Initiative (described below).
Industry took two collective actions in response to the new public interest in
childhood obesity. It updated the CARU guidelines in 2006 and again in 2009. The
new regulations included more rules about online advertising and provided clearer
guidelines on issues concerning the blurring of programming and advertising. The
revised guidelines also encouraged companies to display appropriate serving sizes
in their ads and provide positive messages about balanced nutrition and healthy
lifestyles (Grimes 2008; Mello 2010). The revisions were roundly criticized by
CSPI for making few significant changes and being more interested in protecting
marketers than in responding to the health needs of children and their parents
(Jacobson 2006).
What CARU did not want to do was regulate which foods are deemed nutritious.
In 2006, the CBBB and ten food companies formed the Childrens Food and
Beverage Advertising Initiative (Moore and Rideout 2007; Mello 2010). The goal
was to shift the focus of advertising toward promoting healthier eating and healthier
lifestyles. The Initiative provided self-regulatory, voluntary guidelines on which
foods should be advertised to children under age 12. These included regulations to
ensure that games on company websites would reinforce healthy eating and healthy
lifestyles. The rules were written in a way that made it easy for food companies to
comply with the guidelines: only 50% of the ads from a company had to promote
healthy eating and healthy lifestyles; at first, until the rule was changed under
adverse public criticism, an ad counted as prohealth, even if it promoted an unhealthy

38

3 Protecting Children from Obesity: A History of Television

product, if the ad also called for more exercise; and the companies decided for
themselves which ads were targeted at children under the age of 12. The number of
companies participating in the Initiative has grown from 10 to 17 and includes large
industry players such as Kraft Foods, General Mills, CocaCola, PepsiCo,
McDonalds, and Burger King. Some individual companies have taken individual
action as well to provide more healthy products and to label them as such. For
example, Disney has limited the licensing of its characters in the promotion of
unhealthy foods (Mello 2010; Moore and Rideout 2007).
Researchers at Yale Universitys Rudd Center for Food Policy and Obesity
(Schwartz etal. 2008, 2010) have analyzed the self-regulation under the Childrens
Food and Beverage Initiative. The main problem they identified was the wide variation in self-determination by individual companies of what constitutes a better for
you product. The researchers noted that, under General Millss criteria, Reeses
Puffs, Cocoa Puffs, Lucky Charms, and Cookie Crispall General Mills cereals
with high quantities of sugarfall into the better for you category. The researchers measured the nutritive value of all 71 cereal brands they found advertised on U.S.
television against the standards used by the British government (the United Kingdom
Nutrient Profiling model) to determine whether a product has sufficient nutritive
properties to be advertised on childrens television in the United Kingdom. This
model gives a single score to each product based on the totality of calories, fat, sugar,
sodium, fiber, protein, and unprocessed fruits, nuts, and vegetables in the product.
None of the General Mills cereals listed earlier and self-determined by the company
to be better for you received high enough scores that they could have been advertised on British television. In fact, 98% of the 71 cereal brands they tested received
failing scores under the U.K. nutrient profiling. Kelloggs Pops Chocolate Peanut
Butter and Quaker Capn Crunchs Crunch Berries received the lowest scores.
In order to better inform the Childrens Food and Beverage Advertising Initiative,
as well as the ongoing efforts of the federal agencies (FTC, HHS, and FCC), the
Kaiser Family Foundation published a major study in 2007 under the title Food for
Thought, which presented a comprehensive look at television food advertising to
children (Gantz etal. 2007; U.S. Federal Trade Commission 2007). This study
reviewed more than 1,600h of television programming from 2005, including both
shows directed at children and nonchildrens programming with a significant child
audience. The study grouped children into three classes by age: 27, 812, and
1317. It found that children of all ages were watching a great deal of television, but
the 8- to 12-year-old group was watching the most. A typical 812year old views
more than 7,600 food adstotaling more than 50h of advertisingin a single year.
Food ads are common on television, the study found, especially on childrens programming where they constitute half of all ads. The ads are generally for low-nutrition foodsthe most common being ads for candy and snacks (34%), cereal
(28%), and fast food (10%). There were no ads for fruits and vegetables. The ads
most commonly appeal to taste (34%), fun (18%), and premiums and contests
(16%). They found overblown the public concern about the dangers of known figures from cartoons or movies selling less nutritious food, with spokes-characters
appearing in only 10% of the ads.

3.3A New Public Concern About Childhood Obesity

39

In response to calls from First Lady Michelle Obama, the White House Task
Force on Childhood Obesity, the FTC, and others, in 2011 the Childrens Food and
Beverage Advertising Initiative adopted uniform nutrition standards to be used by
all of its members, effective as of the end of 2013. The Initiative further agreed to
upgrade its standards, as necessary, in light of new scientific information about
nutrition such as the USDAs 2015 Dietary Guidelines for Americans. The uniform
nutrition criteria are stronger than its previous standards. For example, under the
new standards, there are specific limits within a given category on total calories,
saturated fat, trans fat, sodium, and total sugars; and a food does not qualify solely
on a claim of reduction (25% less sodium) or portion control (100 calories in
this package) (Better Business Bureau 2013).
At the same time that the nonprofits were writing reports and industry was rejiggering its practices of self-regulation, there was a call for renewed federal regulatory effort (Mello 2010). A 2004 Institute of Medicine report encouraged the FTC
to use its authority and resources to ensure the compliance of industry self-regulation
(Warner 2005). In response the following year, the FTC and the Department of
Health and Human Services sponsored a public workshop on the marketing of food
to children (Pomeranz 2010; Wilde 2009; Simon 2006). The political climate was
not yet ready for increased government regulation to meet the growing public concern over childhood obesity. Both the House and Senate had Republican majorities,
and in her opening remarks to the workshop Chairwoman of the FTC Deborah Platt
Majoras made it clear that regulation of the marketing of specific types of foods was
not something the FTC wanted. Majoras stated, under the right circumstances,
industry-generated action can address problems more quickly, creatively and flexibly than government regulation (Warner 2005). Liberals, such as Senator Tom
Harkin, criticized CARU for not solving the problem and for being captive to the
industry. By contrast, the Grocery Manufacturers Association used the workshop
to present its plans to increase self-regulation guidelines by having its advertising
review board appoint a task force to oversee advergames, expand the boards staff
and budget, and add guidelines to monitor promotional tie-ins with video games and
product placement in television shows (Warner 2005).
At the workshop, the agencies offered a set of general recommendations to
industry: industry should (1) create new products that would lead to healthier eating; (2) use product packaging to control portion size; (3) improve on product labeling to identify calories and nutrients more clearly; (4) adopt minimal nutritional
standards for the products they market to children; (5) disseminate more frequent
and more effective prohealth messages; (6) tailor educational programs to reach
racial and ethnic communities that have a higher incidence of childhood obesity; (7)
broaden CARUs mission to include self-regulation of the Internet, interactive
games, and other nontraditional forms of advertising; (8) expand the CARU advisory board to include more people with relevant expertise in such areas as nutrition
and developmental psychology; (9) allow parents and others to file complaints with
CARU; (10) ensure that the CARU staffing and resources are adequate to do the job
well; and (11) find ways to deter violations, especially repeat violations, of the
CARU guidelines. While all of these were good ideas, none of these recommendations led directly to change.

40

3 Protecting Children from Obesity: A History of Television

The workshop did not produce the empirical data that the sponsoring agencies
had hoped for, and Congress called on the FTC to prepare a follow-up report on the
growing frequency of childhood obesity and its connection to industry marketing to
children (Federal Trade Commission and Department of Health and Human Services
2006). The FTC subpoenaed 44 food companies in the process of collecting information for its report. The FTC reported back on the enormous efforts to market
unhealthy foods to children: in 2006, $870 million was spent on marketing to children and over a billion dollars on marketing to adolescents. Almost two-thirds of the
advertising dollars were spent on carbonated beverages, fast-food restaurants, and
breakfast cerealswith the rest spent mostly on other beverages, snack foods, and
candy (U.S. Federal Trade Commission 2007). Although the most money was spent
on television advertising, significant amounts were also spent on premiums, Internet
websites, email and text messaging campaigns, packaging and in-store displays,
celebrity endorsements, and product placements. (On packaging, see Berry and
McMullen 2008; Gelperowic and Beharrell 1994; Hill and Tilly 2002; Kornblau
1961.) Cross-promotions, such as the use of licensed figures or tie-ins to movies,
television programs, or toys, had become very common, the report noted. The report
also found that most companies were following their self-regulation pledges, but the
definition of what counted as healthy varied widely from company to company. The
FTC recommended that the industry focus on four issues: healthy product development, appropriate portion sizes, in-school marketing, and presenting pronutrition
messages (Botha etal. 2008).
Between 2006 and 2008, the FCC expressed interest in extending regulation of
television advertising directed at children to both cable television and the Internet
the latter through restrictions on the display of food company Internet addresses
(URLs) on television programming targeted at children. These intentions were connected to efforts in 2007 to provide the FCC with greater regulatory control over
cable television, which had been weak under the provisions of the Cable
Communications Act of 1984 (Dealbook 2007). No single action represented the
plans better than the large fine charged to Univision for misclassifying certain childrens programming as educational. However, intense industry lobbying caused the
FCC to scale back its plans to regulate the cable television industry (Labaton 2007a,
b; New York Times 2007; Oxenford 2007, 2008; Puzzanghera 2007).
In 2011 the FTC proposed new rules that would expand the COPPA to cover
technological advances in smartphones, social networking, and geolocation
(Silverman 2011). That same year the FTC also circulated for comment a draft
report that called for prohibition of advertising of unhealthy foods on the broadcast
media, the Internet, and other media through either regulation or self-regulation by
2016 (Oxenford 2011). At this time, neither the FCC not the FTC has gained strong
regulatory control over children and the Internet in ways that would enable them to
control food advertising.
One of President Obamas first legislative actions, his economic stimulus package known as the American Recovery and Reinvestment Act (passed in 2009), created the Interagency Working Group on Food Marketed to Children. This group,
consisting of the FTC, Centers for Disease Control, Food and Drug Administration,

3.4Food Advertising and First Amendment Rights

41

and Department of Agriculture, was charged with studying and developing

recommendations for food marketing aimed at people under 18 years old, identifying the nutritive content of food advertised, and determining the role the foods play
in youth obesity. In 2011 the Working Group made its recommendations available
for public comment. It recommended that by 2016 all food marketed primarily to
people under age 18 should meet two basic nutrition principles: first, the foods
should contribute to a healthy diet and include at least one of the following food
types: fruits, vegetables, whole grain, fat-free or low-fat milk products, fish, extralean meat or poultry, eggs, nuts and seeds, or beans; second, the foods should not
have a negative impact on health or weight (quantified by maximum amounts of
saturated fats, trans fat, added sugars, and sodium they can contain).
Not surprisingly, the food, advertising, and media industries objected strenuously to these guidelines. The Sensible Food Policy Coalition, organized by the
food industry, countered with a Keep the Government out of your Kitchen media
campaign. The food industry called for leaving the regulation in the hands of the
Childrens Food and Beverage Advertising Initiative (Wilde 2009). Representative
of the Conservative position, the Bernard Center for Women, Politics and Public
Policy, directed by the conservative television commentator Michelle Bernard,
questioned whether advertising increases consumption of food products to children,
whether banning advertising can decrease obesity, and whether advertising is the
most important causal factor in obesity. The Bernard Center made questionable
claims that the Interagency Working Groups recommendations would increase
food prices, have a disproportionate impact on low-income and minority families,
and rob parents of useful information in making food choices for their families. The
Bernard Center argued instead in favor of self-regulation (Bernard and Bradley
2011). Another and perhaps more powerful opponent of these guidelines was the
Grocery Manufacturers Association, which has a proven track record of using lobbying and campaign contributions to fight both state and federal bills that restrict the
sale of soda and junk food (Simon 2006). On the other side of this political debate
were the CSPI and other public health groups that believe self-regulation is too lax
and needs to be replaced with regulation. (On the problems with self-regulation, see
Sharma etal. 2010; Simon 2006; Lang etal. 2006.) The Interagency Working Group
recommendations did not make it through Congress intact. Who will win out in the
long run is still to be determined, but industry has much deeper pockets than the
public interest groups.

3.4 Food Advertising and First Amendment Rights

One of the familiar arguments lodged many times since the 1970s by the food,
media, and advertising industries is that food advertising to children is protected
commercial speech under the First Amendment. If the courts uphold wide First
Amendment rights for commercial speech, it will be difficult for regulators to exert
any meaningful control over food advertising to children. The U.S. Supreme Court

42

3 Protecting Children from Obesity: A History of Television

first recognized the concept of commercial speech in 1942 in the case Velentine v.
Chrestensen, even though the court ruled that there is no First Amendment protection for it (in this case to distribute handbills advertising paid admission to a First
World War submarine docked in New York City).
The argument surfaced again during the summer of 2011 in response to the
Interagency Working Groups recommendation. Viacom hired well-known Stanford
University law professor Kathleen Sullivan to argue the industrys First Amendment
position in testimony to the FTC. There is disagreement among legal scholars as to
the constitutionality of these regulations on commercial speech (See, for example,
Alderman etal. 2007; Graff 2008; Graff etal. 2012; Hertz 2002; Pomeranz 2010;
Ramsey 2006; Redish 2011; Sullivan 2011; Wilde 2009). Those who argue that
such regulation is legal do so on several grounds. If the argument holds that advertising to children is deceptive and misleading because children do not have the cognitive abilities to evaluate it, then deceptive and misleading commercial speech is
not protected by the First Amendment. Moreover, if it is found that the advertising
is about image (being cool, having fun) and has no informational content concerning the products, it is also not speech protected by the First Amendment. Scholars
in favor of regulation also note there is precedent for having different First
Amendment standards for adults and children (e.g., Ginsberg v. New York), and that
First Amendment protections are often balanced against other public protections, in
this case the health of the nations children.
It is beyond the scope of this chapter to review all of the legal arguments, but the
basics are important for understanding the legal debate. Through the early 1970s,
the courts had not recognized First Amendment rights for commercial speech, but it
was instead regarded as a regulable business practice. The case that gave commercial speech First Amendment protection was Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council (1976). In this case, the court overturned a state
ban on the advertisement of prescription drug prices because this advertising provides information that is important both to customers and to the efficient functioning of the marketplace.
The case that set the standards for regulation of commercial speech in light of the
First Amendment rights determined in Virginia Pharmacy was Central Hudson Gas
and Electric Corp. v. Public Service Commission of New York (1980), in which the
court struck down a state regulation banning advertising by electric utilities. The
court provided a four-part test to determine whether federal regulation of commercial speech is constitutional: (1) whether the speech concerns lawful activity and is
not misleading; (2) whether the government interest is substantial; (3) whether the
government regulation directly addresses the government interest; and (4) whether
the regulation is the minimal one that could protect that interest.
The courts have been strict in their findings on the last two parts of the Central
Hudson test. In a heavily cited case, Lorillard Tobacco Company v. Reilly (2001),
the court overturned a Massachusetts law that banned advertising of cigarettes
within 1,000ft of schools because the law was not sufficiently narrow in its formulation. The best case for those who believe in regulation of food advertising appears
to be to argue the case for the advertising being actually or inherently misleading,

3.5Marketing Food to Children Through the Internet and Other Means

43

not just potentially misleadingbased on the cognitive limitations of children to

undertake three tasks: distinguish advertising from other content, recognize the persuasive intent of advertising, and have the grounds for evaluating an advertisement
and acting on it. Industry has a strong argument against any sweeping regulation
based on the fourth principle of the Central Hudson test. The situation with food
companies advertising in schools is perhaps different because the courts treat
schools as a protected space (Graff 2008; Pomeranz 2010; Mello 2010).
One academic study (Kline etal. 2006) suggests that those interested in regulating food advertising to children can learn lessons from the fight against childhood
smoking and that it might be prudent to avoid the First Amendment issues altogether by employing alternate means of regulatory control. These include regulating
a product directly (what, when, where, and how products are sold), regulating the
retail sale of the product (e.g., age restrictions), employing land use regulations to
limit where product retailers can operate, imposing product standards, or taxing or
exacting a fee on the product. Additionally, one could regulate a product by agreement, through private or public binding contracts, private or public litigation settlements, or private or public nonbinding agreements. There is also an opportunity for
government-sponsored education and counteradvertising.

3.5 M
 arketing Food to Children Through the Internet
and Other Means
The Internet, which began to spread through the general public in the 1990s, has
become a major force in shaping the strategies for marketing food to children (Story
and French 2004). The Internet has two powerful advantages over television advertising: websites are interactive so that the children can playfully engage with a companys products, and the exposure times are much longermultiple minutes on a
website compared to a 30s television adgiving much greater opportunity for
brand immersion (Moore and Rideout 2007). (On using the Internet for social good,
namely, communicating public health messages, see Freeman and Chapman 2008.)
Given that the Internet did not have the same long history of federal regulation as
television and radio, the rise of food websites on the Internet opened a whole new
front for battles between advertisers and regulators (Montgomery 2007).
One of the first studies of online advertising of food to children (Moore and
Rideout 2007) found that most of the food companies that advertise to children on
television also have websites. At the time of this study, these websites were receiving 49 million visits by kids annually, and that number can only have grown substantially over the past few years. Ninety percent of the sites then were for foods
of low nutritional value. Brand benefit claims appeared four times as often as
nutrition claims.
Food company websites often included gamesoften multiple gamesfor children to play. As the children became engaged in the play of the game, with its animation, music, and likeable characters, they were exposed peripherally but

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3 Protecting Children from Obesity: A History of Television

repeatedly to brands and logosin a way that seemed to be effective at building

brand awareness and loyalty. Many of the games were designed so that the children
would want to play them again, e.g., to better their scores or compare their performance with the performance of other kids.
Many of these websites also employed peer-to-peer (also known as viral) marketing techniques, for example, the kids were encouraged to email their friends with
a greeting card that included the companys logo or invited the friends to visit the
website (Moore and Rideout 2007). The websites often included copies of the companys television ads, which the kids could view as many times as they wanted. The
sites also commonly offered free items for the kids to take with them, such as screen
savers with the companys logo or images of popular musical bands. Some offered
sweepstakes as a way to entice the children to visit the web pages. Some offered
special rewards, such as unlocking hidden games, to children who had made product purchases. Some sites offered product discounts. Many of the sites included
tie-ins with movie or cartoon characters the children were familiar with.
There is no regulation of online advertising that compares directly to the restrictions on television advertising. For example, there are no limitations such as those
in the Childrens Television Act of 1990 on the amount of time that children may
spend with ads, nor are there bumpers as there are on television that clearly separates programming from advertising. Moreover, the majority of the websites use
electronic cookies to track the browsing behavior of individual children. The federal
government has even had difficulty regulating more basic problems such as pornography online. The Childrens Decency Act and the Child Online Protection Act,
which protected children from exposure to indecent content online, were held to be
unconstitutional on First Amendment grounds. The Childrens Internet Protection
Act protects children from harmful online content, but only during access in public
schools and libraries. The one piece of federal legislation (described in detail later
in this section) that has best protected children online has been the COPPA, which
went into effect in 2000 and regulates the collection of information from children
and the circumstances under which parental permissions are required by website
operators. The FTC has enforced COPPA, fining companies that abused childrens
privacy on several occasions.
In particular, the FCC does not have authority over the Internet as it does over
television. In 1997 CARU revised its self-regulation guidelines so as to include
online advertising, but its Internet regulations were both weaker than the rules for
television and were voluntary (Story and French 2004). One study (Weber etal.
2006) showed that only 9 of the 40 most popular childrens food company websites
followed the CARU guideline that required separation of programming from
advertising.
Advergames are computer games specifically created to function as advertisements to promote brands, where the entertainment content mimics traditional game
forms (Kretchmer 2005). In a study of the leading 100 national advertisers in the
United States, more than half of the advergames were placed by food companies
(Lee and Youn 2008). In one study of advergames (Culp etal. 2010), the researchers
conducted a content analysis of websites advertised during a sample of 34h of

3.5Marketing Food to Children Through the Internet and Other Means

45

programming on two childrens networks, the Cartoon Network and Nickelodeon,

during 2006 and 2007. The researchers found 290 such websites. Eighty-four percent of the websites contained games, all included at least one brand identifier (a
food product image, product package image, textual representation of a brand or
company name, or most commonly a company logo), and there was on average one
healthful message for every 45 exposures to brand identifiers. Other techniques for
attracting kids to these sites included sweepstakes contests (47% of the websites)
and free downloads (36%). Strategies to lengthen stay on the web page and hence
increase exposure to the brand included many of the common tropes of videogames:
play-again options (91%), opportunity to work toward a higher level of game skill
(52%), the ability to post scores publicly so as to compete with others (32%), and
the ability to win free prizes (17%). The authors found considerable blurring of the
boundary between ads and programming, with few healthful messages to offset the
commercial marketing. Because the games were interactive, children were typically
exposed to the marketing material for 30min, compared to 30s on television. The
authors estimated that approximately two billion ad viewings had been made on
websites targeting children.
The popularity of advergames, as well as the scholarship on the topic, is growing
rapidly. The general consensus is that advergames are proliferating and that they
educate about brands not but not about health. The concern is that youth are targeted, that the games may be more persuasive than less popular traditional types of
advertisements, and that young people do not have sufficiently well-developed
judgment skills and are vulnerable in much the same way that they are vulnerable to
television advertisements.
Branded entertainment is also becoming more popular as the effectiveness of
traditional advertising formats declines (Lowrey etal. 2005). Besides brand placements in magazines (e.g., Van Reijmersdal etal. 2005), movies (e.g., Russell and
Belch 2005), and television game shows (e.g., Gould and Gupta 2006), brand placements are beginning to show up in digital games (e.g., Garcia and Baker 2004).
The advergame format can be distinguished from in-game advertising. The
latter more closely resembles traditional product placement, but within a game,
whereas for an advergame, the game is specially made to promote the brand. An
advergame is usually also less complex than a real game in which brands can be
placed. Since advergames are rather simple in their design (no complex rules, short
playing time, etc.), they can be easily distributed on different platforms, such as on
websites, via email (tell a friend, viral marketing), on cell phones, and on interactive
digital television (e.g., during a commercial break). Integrating brands into games is
a growing business.
A number of public interest groups and scholars are fighting back against the
power of advergames and other online advertising to influence children in the food
area. The Media Education Foundation has produced videos for classroom use such
as Feeding Frenzy: The Food Industry, Marketing and the Creation of a Health
Crisis (Media Education Foundation 2013). The public interest group Campaign
for a Commercial-Free Childhood holds protests, offers online resources, blogs, and
sponsors education and advocacy conferences (Campaign for a Commercial-Free

46
Overview

Other studies

On young childrens
recognition of brands
and logos

3 Protecting Children from Obesity: A History of Television

Lee et al. 2009; Staiano and Calvert 2012
Moore and Rideout 2007; Jain 2010; An and Stern 2011; Dahl,
Eagle, and Baez 2009; Grimes 2008; Grossman 2005;
Hernandez and Chapa 2010; Mallinckrodt and Mizerski 2007;
Pempek and Calvert 2009; and Sukoco and Wu 2011; Henry
and Story 2009; Bailey, Wise and Bolls 2009; Chang, Zhang,
and Luo 2010; McIlrath 2006; Nairn and Dew 2007;
Cauberghe and De Pelsmacker 2010; Lee and Youn 2008;
Brustein 2009
Fischer et al. 1991

Fig. 3.4 Literature on advergames and online commercial practices concerning food and targeting
children

Childhood n.d.). Media scholars Ian Bogost and Paulo Pedercini have satirized
advergames using the medium of games (Terdimen 2006). To counter the criticisms
of media directed at children, in 1983 the advertising industry created its own foundation, the Advertising Educational Foundation, which offers guidelines for self-
regulation and produces and distributes educational content arguing for the value of
advertising to society (Advertising Educational Foundation 2013). Figure3.4
provides a list of some of the major scholarly literature on advergames and online
commercial practices concerning food and targeting children.
Most of the analysis of Internet advertising of food to children has involved the
study of the sites of specific food companies. However, Alvy and Calvert (2008)
instead studied the ten websites most often visited by children 811years old (not
including ones that were primarily portals or mainly geared to adults) because children spend more time on these sites than they do on food company websites. The
ten sites are Candyland.com, Neopets.com, Cartoonnetwork.com, Nick.com,
Miniclip.com, Disney.com, Ebaumsworld.com, Barbie.com, Disneychannel.com,
and Funnyjunk.com. Seven of the ten sites contained food advertising. The foods
advertised on these sites were candy (248 instances), sweetened breakfast cereals
(42), fast-food restaurants (9), chips (3), dairy products (3), and sweet snacks (1).
The techniques used on these sites were similar to those used on television: attention-
getting production features (animation, bold/colorful text, dynamic images),
branded characters, and repetition. Several of these sites contained advergames and
product placements.
In response to parental concerns about the private information that companies
were collecting about their children and their childrens online behavior, in 1998
Congress passed the Childrens Online Privacy Protection Act, which restricted the
data that companies could collect about children, effective in 2000. Enforcement of
COPPA is the responsibility of the FTC. The law covers websites that are designed
for children under age 13. It requires that a website have a privacy policy, give specific rules about when and how the company must obtain consent from the childs
parent or guardian, and place restrictions on marketing to children under age 13.

3.6Conclusions

47

There have been a few actions against well-known companies, such as Mrs. Fields
Cookies and Hershey Foods, under this law. The largest fine was $1 million, imposed
against the social networking website Xanga in 2006, for repeatedly allowing children under 13 to sign up without parental permission.
The FTC updated its COPPA regulations, effective July 2013. The update clarifies that commercial websites and online services directed at children under the age
of 13 must get parental permission to collect geolocation information, identifies as
a best practice that companies no longer collect photos or videos containing a childs
image or an audio file with the childs voice unless they have gained parental permission, broadens the protection of screen names as personal information, and limits the use of persistent identifiers that enable one to track a user over time or across
different websites or online services (BCP Business Center 2013).
There are a few studies of marketing to children in magazines. Magazines present a different set of challenges to those in television advertising, and in many ways
are more similar to the issues that arise in Internet advertising. The boundaries
between programming and advertising are more subtle in magazines than on television, especially because the advertisement can be hidden in editorials, comics,
games, and puzzles. The amount of contact time with the magazine, as with the
Internet, is also much longer than the ad contact on television. One small study of
children in Australia indicated that children sometimes understand the persuasive
content of magazine advertisement but at other times even older teenagers regarded
items as informational rather than recognizing them to be the advertisements that
they were. Many of the techniques were the same in magazines as online, such as
promotions, character licensing, and games (Jones etal. 2010).
There have also been a few studies of food company advertising through the
sponsorship of sports clubs and sporting events. In one study of New Zealand children ages 1014, students had high recall of who the sponsors were for both their
local sports club and their favorite professional sports franchise. The children had a
favorable impression of the food company sponsor, and that favorable impression
was increased either by receiving a voucher for food products for their good sports
performance or by receiving a certificate for their sports activity (typically branded
with the company name or logo). The children reported that they liked to return the
favor to the company by buying their products for their having sponsored these
sporting activities (Kelly etal. 2011a, b; also see Hoek and Gendall 2006).

3.6 Conclusions
While self-regulation has done some good to limit the types and amount of television food advertising to children, it has been inconsistently applied and generally
does not go far enough. (For a national comparison of government regulation and
industry self-regulation of television food advertising, consider the situation in
Australia as reported in King etal. 2011 and Magnus etal. 2009.) The lobbying
might of the food and advertising industries is great, and this has limited the ability

48

3 Protecting Children from Obesity: A History of Television

of the federal government to regulate. However, there is also a public reluctance for
federal regulation of what people do in their homes and how they apply their parenting skills. This was most acutely felt in the era of the Reagan presidency, when there
was a backlash to the FTC characterized as the national nanny. The uneasiness
with federal regulation persists today.
Concerted national attention to an epidemic of childhood obesity, which can be
defined as beginning with the Surgeon Generals pronouncement in 2001, has continued through the Obama presidency. National attention has led to improved industry self-regulation, valuable work by health nonprofits such as the Henry J. Kaiser
Family Foundation and the Robert Wood Johnson Foundation, persuasive reports
from professional organizations such as the American Academy of Pediatrics and
the Institute of Medicine of the National Academies of Science, and most recently
by renewed federal government effort such as President Obamas Interagency
Working Group on Food Marketed to Children.
As delivery and consumption of entertainment content shifts from televisions to
personal computers and smartphones, so too does the nature of that content.
Advergames are an increasingly popular form of advertisement and they are more
effective than television commercials in the following ways: children will spend
vastly more time with an advergame than they will watching a brief commercial;
advergames are typically less expensive to produce and distribute than commercials; advergames may leverage social media technologies to encourage children to
spread awareness of a product (viral marketing at no cost to the advertiser and then
the marketing occurs inside the mediated space of another entity such as Facebook);
advergames may be played away from the home, on mobile devices, in spaces where
parental control or supervision is limited or impossible; the psychological factors
that make game mechanics function easily allow for the introduction of persuasive
elements; and advergames exist in the largely unregulated space of the Internet. So
far, advergames are opposed primarily by private interest groups, not government
regulators. For these various reasons, concern is reasonable that, over time, advergames will hold an increasingly important place in the enticement of children by
commercial interests. Although the design and production on advergames is often
of low quality, as compared to high-budget console games produced by large studios, it is conceivable that increases in quality and sophistication will occur as the
sophisticated software packages used to create games become less expensive and as
the interactive material itself plays an increasingly important role in marketing campaigns. It is similarly reasonable to believe that, to the extent that television commercials contribute to unhealthy practices in children, advergames have a negative
effect on childrens health. Advergames may actually have a more pronounced
effect than television advertisements, due to the increased time a child spends
engaged with a particular brand or product.
It is still too soon to know the final outcome of all these efforts, but the opportunities for a reduction in the number of obese children in the United States now seems
possible. While progress is being made, the food industry must do more to employ
meaningful nutritional standards in the foods they market to children. They must
avoid regulatory loopholes and produce snacks that are truly healthy rather than

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