May 9/Prepared Foods’ May 2011 -- Formulating and marketing food products for children have always involved a necessary give-and-take. On one hand, companies have to create a food or drink product kids will find both tasty and visually appealing, so kids will “demand” it from their parents. On the other hand, companies must develop a product parents will be willing to purchase. This tug-of-war has never been more apparent than in today’s marketplace, where the race for the consumer dollar is more competitive than ever--as more products abound than ever before. Simultaneously, there is an unprecedented level of focus on nutrition. Marketers and advertisers charged with brainstorming new ideas to attract children and parents must develop such plans, while remaining keenly aware of governmental programs publicizing the fight against childhood obesity; regulators scrutinizing products with increased interest; and consumer advocacy groups taking companies with perceived misleading advertising campaigns to court.

Marketing Strategies to Children

Despite the protestations and pronouncements of varied consumer advocacy and action groups (also sometimes called “consumer pressure groups,” due to their attempts to apply media and legal pressure to achieve desired objectives), there is nothing inherently illegal about using bright colors, appealing flavors, cartoon figures and advertising mechanisms to gain the attention of consumers, including children, when marketing food products. It is simply “Marketing 101.” Most research studies indicate children respond best to bright, primary colors, once they are able to distinguish colors other than black and white. It is only logical that most companies wanting to attract the attention of children would use colors that are most attractive to them. However, marketers must realize there is a greater emphasis being placed by regulators and consumer watchdogs on the nutritive value of food products being promoted to children. Companies that do not back up bright colors and flavors with good nutrition face potentially serious public relations, regulatory, legal and financial consequences.

 
Let’s Move! and the Fight Against Childhood Obesity
At the forefront of the recent movement to combat childhood obesity and provide more nutritious food for children is First Lady Michelle Obama and Let’s Move!. The Let’s Move! campaign was launched in February 2010, with the goal of solving the challenge of childhood obesity within a generation. In order to achieve its goals, Let’s Move! has operated on a multitude of fronts. The campaign has made providing better food for children in schools and at home a high priority, working with industry groups, like the American Beverage Association and the Grocery Manufacturers Association, to provide more complete information to consumers, in order to help them make informed choices. Let’s Move! has also been working with businesses, such as Wal-Mart, to offer healthier foods to customers. Most importantly, Let’s Move! has been emphasizing the need to make healthy food choices at home.

The fight against obesity, especially childhood obesity, has been carried on across the governmental landscape. The Interagency Working Group on Food Marketed to Children, a joint taskforce comprised of the Federal Trade Commission (FTC), the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC) and the U.S. Department of Agriculture (USDA), released “Tentative Proposed Nutrition Standards” in December 2009, which would have far-reaching implications on the minimum requirements for food marketed to children. (Rumors abound that pushback from industry companies has held up the report that was to be given to Congress in July 2010.) The 2010 Dietary Guidelines for Americans, released in January 2011, also highlighted the obesity issue plaguing the U.S.

Regulation by the FDA and the FTC
In contrast to marketers that see new advertising campaigns in bright colors and flavors, federal regulators view the marketing of products in the black-and-white letter of the law. The two federal regulatory agencies with the most responsibility for overseeing the marketing and sale of food products are the FDA and FTC. (The USDA also has some responsibility, regulating some meat, poultry and egg products.) While both the FDA and FTC have expressed concern over the marketing of food products to children, most of the regulatory action taken by them against companies selling food products intended for children has been for claims made about the products--not for objectionable forms of advertising.

Companies marketing products to children face the bigger threat of regulatory action from the FTC. The FTC reviews advertising to ensure that it is truthful; not misleading; and supported by sufficient science. The FTC has spent substantial resources on reviewing the marketing of food to children; in 2008, it issued a report to Congress on the subject. Central to the conclusions stated in the 2008 report were the recommendations that companies continue to increase efforts to improve the nutritional profiles of their products and to limit aggressive marketing to children of products that do not meet meaningful, nutrition-based standards. Despite the FTC’s interest in curtailing overreaching advertising campaigns directed to children, most of the action from the FTC has been claims-oriented. In February 2010, the FTC sent out letters to a number of companies selling products intended for children that contained omega-3s and were touted to increase brain function, attention span and mental focus in children. The FTC’s assertion was that there was not sufficient scientific evidence to support the claims. Additionally, over the last two years, the FTC has identified claims made by the Kellogg Company for both Rice Krispies and Frosted Mini-Wheats, which the FTC alleged were not supported by sufficient scientific evidence.

While the FTC is primarily focused on advertising of products, the FDA is tasked with, among other duties, regulating the manner in which food and beverage products are sold, and regulating the claims made in labeling used to sell such products. Such regulatory oversight extends to products targeted to children. In 2009, the FDA sent a Warning Letter to General Mills for certain heart-health claims it made regarding Cheerios. Last year, the FDA sent out 18 Warning Letters to companies for making improper nutrient content claims, six of which were sent to companies marketing children’s products. The claims were in violation of specific regulations which prohibit nutrient content claims for products intended for children and infants under 2 years of age.

CSPI and Consumer Advocacy Groups
While companies formulating and marketing products certainly face potential regulatory action for aggressive marketing campaigns to children, the greatest pressure to provide nutritive value in products subject to colorful advertising campaigns may be felt from a different source. The financial repercussions of litigation initiated by consumer advocacy groups, professional plaintiffs’ organizations, private consumers and other litigants may provide the biggest incentive for companies to ensure products intended for children are healthier. No other consumer advocacy group has been as aggressive or outspoken in monitoring the nutritive value of products targeted for children as the Center for Science in the Public Interest (CSPI).

CSPI is well-known for taking on an array of companies in the food and beverage industry for practices ranging from use of the term “natural” in products containing high-fructose corn syrup (“HFCS”) to campaigns against fast-food companies, like KFC and Burger King. However, CSPI has taken a special interest in the marketing of food products to children. While Michelle Obama and Let’s Move! started championing the cause against childhood obesity last year, CSPI has been “calling out” perceived industry violators for the better part of the last decade for fueling the epidemic of childhood obesity. A few of the reports issued by CSPI have included a 2003 report titled, “Pestering Parents: How Food Companies Market Obesity to Children;” “Guidelines for Responsible Food Marketing to Children,” issued in 2005; and a “Report Card on Food Marketing Policies,” in March 2010, which disclosed grades from A to F for 128 companies analyzed. (Not surprisingly, CSPI failed to give an “A” to any company.)

In 2006, CSPI announced it intended to file a lawsuit against the Kellogg Company and Viacom’s Nickelodeon for marketing junk food to young children. As part of the lawsuit, the plaintiffs sought to enjoin Kellogg and Viacom from marketing junk foods through websites, toy giveaways, contests and other techniques aimed at young children. Subsequently, Kellogg agreed to adopt nutrition standards for the food it advertises to young children, and the plaintiffs agreed not to proceed with the lawsuit.

More recently, CSPI took on the “Golden Arches.” In June 2010, CSPI notified McDonald’s it intended to file suit, if McDonald’s did not discontinue the use of toys to promote Happy Meals. In the press release announcing the intent to file suit, CSPI litigation director Stephen Gardner stated, “McDonald’s is the stranger in the playground handing out candy to children. McDonald’s use of toys undercuts parental authority and exploits young children’s developmental immaturity--all this to induce children to prefer foods that may harm their health.” CSPI’s threat was backed up in December 2010, as a lawsuit was filed by a mother of two in California against McDonald’s, with the assistance of CSPI.

The consequences of media and legal action from CSPI and other such groups live on, even after they retreat. The action by CSPI often spawns numerous other lawsuits, as professional plaintiffs’ groups and private consumers seize on the publicity generated by the initial action. One need look no further than the numerous lawsuits filed against beverage companies over use of the word “natural,” after CSPI started the action in 2006 with actions against the makers of Snapple and 7-Up.

 
Forward Thinking
Formulators and marketers of products for children have a delicate balancing act to perform--they must create appealing products both kids will want to eat and parents will want to buy. This balancing act is made even more difficult by the media blitz created by campaigns and programs working to solve obesity issues, and pressure from groups like CSPI to curtail advertising to children of non-nutritious products. To avoid unwanted attention from a variety of sources, companies marketing food and drink products to children must back up flash with substance.  pf