Concurring Statement of Commissioner Jon…

                     Concurring Statement of Commissioner Jon Leibowitz
                         Marketing Food to Children and Adolescents:
                A Review of Industry Expenditures, Activities, and Self-Regulation
                                        (July 29, 2008)

       Childhood obesity in America is now an alarming problem. The proportion of
overweight children ages six to eleven has increased almost fivefold in the last generation,
growing from four percent in the early 1970s to nineteen percent by 2004.1 One-third of our
youth ages two to nineteen are either overweight or at risk of becoming so.2 Overweight children
and adolescents are more likely to develop serious chronic diseases such as high blood pressure,
high cholesterol, and Type 2 diabetes ­ and are more likely to become obese as adults.3 The
causes of childhood obesity, of course, are complex. A large part of the problem may have to do
with changing lifestyles, more sedentary activities and less exercise. We all share some
responsibility.

          But to underscore the obvious, to some extent you are what you eat ­ and what children
eat is influenced by what food is available and how it is marketed.4 Especially in an era with
more working parents who rely on restaurants, take-out, and quick-fix processed foods, industry
can play an instrumental role in helping to curb the obesity epidemic. To be fair, most large food
marketers are beginning to take their self-regulatory obligations seriously, and for that they
deserve recognition. Yet some companies still need to step up to the plate and others need to
strengthen their voluntary measures, not only because it is in the public interest, but also because
it is in their self-interest: a failure of self-regulation may make the next Congress ­ and next
administration ­ more inclined towards government regulation.5

       Today's landmark Report is a monumental feast of facts and figures about marketing food
and beverages to children and adolescents. On a somewhat surprising note, the $1.6 billion in
reported expenditures for food marketing to youth in 2006 (or almost $2 billion if the cost of toys
provided with fast-food children's meals is included) is much lower than previously estimated.
And some of the creative efforts to market milk, fresh fruits and vegetables, and to promote
healthy diets and active lifestyles to young people are a pleasing sweet spot.

        Equally noteworthy, however, the Report documents how highly sophisticated, fully
integrated, multi-platform, cross-promotional advertising campaigns targeting children and teens
are more pervasive than previously appreciated. Simply put, movie, television, and other
entertainment tie-ins are ubiquitous. Although traditional television advertising still dominates,
new means of Internet and digital advertising are becoming a major marketing force, as
advertising spreads from television networks to social networks.

        The Report includes two other findings that leave a tinge of heartburn. First, the
disproportionate amount ($474 million) to market sugary carbonated beverages to adolescents is
striking ­ that's nearly $20 per American teenager in 2006.6 The marketing efforts must be
working; on average, adolescents get eleven percent of their calories from soft drinks.7 Studies
show that those who drink more soda are more likely to become overweight.8 To their credit, the
major carbonated beverage marketers entered an agreement with the Alliance for a Healthier
Generation and have committed to phase out the sale of full-calorie sodas in schools, shifting to
lower calorie and more nutritious beverages. Wouldn't a responsible next step be to extend this
effort beyond the schoolhouse door, and curtail at least some marketing of full-calorie soft drinks
to school-age youth ­ including teens ­ whether on television, via the Internet, in stores, or
elsewhere?

        Second, the big dollars to promote fast food restaurants to children are also somewhat
hard to stomach: the $520 million for advertising and the toys included with fast food children's
meals was more than twice the amount spent by any other food category to target children under
twelve in 2006.9 Some inner city low-income neighborhoods have numerous quick service
restaurants but few grocery stores or markets that sell nutritious foods, so many of the children
most at risk for obesity rely on fast food as a mainstay of their diets.10 Studies show that over-
consumption of fast food likely contributes to overweight and obesity.11 I recognize that
McDonald's and Burger King are working to develop new, lower calorie menu items for
children. But surely more can be done to add options to fast food menus and improve families'
incentives to order healthier choices.

         To be certain, food and beverage company participants in the Council of Better Business
Bureaus' Children's Food and Beverage Advertising Initiative ("CBBB Initiative") have made
significant strides; not only formulating new and improved products, but also reformulating their
advertising directed to young children to promote healthier food and lifestyle choices. They
should be commended for taking this first, important step. However, joining the CBBB Initiative
is just that ­ a first step ­ and there is still a long way to go. Almost exactly a year ago at the
FTC and Department of Health and Human Services Forum on childhood obesity, several of us
urged participating companies to extend their commitments to all of their child-directed
marketing efforts, and to find a more appropriate way to measure when advertising is targeted to
children. A year has passed and, although two more companies have joined the Initiative, little
additional progress has been made to improve either the companies' individual pledges or the
Initiative's core principles.

        If the CBBB Initiative is to serve as the gold standard for self-regulation in food
marketing, it needs to strengthen its guidelines. Company pledges should apply not just to
measured media, but to all forms of marketing directed to children (which, as our Report tangibly
demonstrates, are many). The Report confirms that television, radio, print, and Internet account
for about sixty percent of marketing to young children ­ the CBBB Initiative and company
pledges fail to cover the remaining forty percent spent on product packaging, point-of-sale, and
other promotions. In addition, the CBBB should standardize the qualifications for "healthy
dietary choices," noting that "better for you" does not necessarily mean good for you. Moreover,
a more appropriate standard for measuring a child audience could be created, bearing in mind
that for a popular general audience show like American Idol, a modest percentage of children



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watching translates into several million child viewers. Finally, the CBBB should create and
implement a reliable system for monitoring company compliance.

        Some in industry may criticize us for using our bully pulpit to encourage companies to do
a better job of marketing healthier products to youth. Such criticism would be misguided. In
many ways, industry self-regulation with encouragement from government is really a middle
ground approach ­ somewhere between the government-mandated advertising restrictions
adopted in some foreign nations (which might be subject to First Amendment challenge in this
country) and the laissez-faire approach once urged by many in the business community. Indeed,
especially here, a little government involvement ­ combined with a lot of private sector
commitment ­ can go a long way toward the healthier future for our children that all of us want
to see.


Endnotes

1. Centers for Disease Control and Prevention ("CDC"), Overweight and Obesity: Childhood
Overweight: Overweight Prevalence,
http://www.cdc.gov/nccdphp/dnpa/obesity/childhood/prevalence.htm (last visited July 17, 2008).

2. Cynthia L. Ogden, Margaret D. Carroll, Lester R. Curtin, Margaret A. McDowell, Carolyn J. Tabak &
Katherine M. Flegal, Prevalence of Overweight and Obesity in the United States, 1999-2004, 295 JAMA
1594 at Table 2 (2006), available at http://jama.ama-assn.org/cgi/content/full/295/13/1549/JOC60036T2.

3. CDC, Overweight and Obesity: Childhood Overweight,
http://www.cdc.gov/nccdphp/dnpa/obesity/childhood/index.htm (last visited July 17, 2008).

4. See Institute of Medicine of the National Academies, Food Marketing to Children and Youth: Threat
or Opportunity? at ES-6 to ES-7, 7-6 to 7-7 (2006) ("IOM Study") (concluding that there is strong
evidence that television advertising influences the food and beverage preferences, purchase requests, and
consumption of children ages 2 to 11).

5. See, e.g., What the Candidates Had to Say, Wash. Post Online, May 18, 2008,
http://www.washingtonpost.com/wp-dyn/content/article/2008/05/18/AR2008051801391.html (quoting
the Obama campaign statement that, "If voluntary adoption [of guidelines for marketing of foods and
beverages to children] is not effective, Obama believes that these guidelines should be made mandatory
and that the Federal Trade Commission should have the authority and the resources to monitor and
enforce compliance."); see also IOM Study, supra note 4, at ES-12, 7-12 ("If voluntary efforts related to
advertising during children's television programming are unsuccessful in shifting the emphasis away
from high-calorie and low-nutrient foods and beverages to the advertising of healthful foods and
beverages, Congress should enact legislation mandating the shift on both broadcast and cable
television.").

6. Calculated based on projected U.S. census data for teens. U.S. Census Bureau, Population Division,
Interim State Projections of Population by Single Year of Age: July 1, 2004 to 2030 (Apr. 21, 2005),


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http://www.census.gov/population/projections/DownldFile3.xls.

7. North Carolina School Nutrition Action Comm., Soft Drinks and School-Age Children: Trends,
Effects, Solutions (July 2002) (citations omitted) (also stating that one-third of teenage boys drink at least
three cans of soda each day, and that teenagers are drinking twice as much soda as milk), available at
http://www.communityhealth.dhhs.state.nc.us/dental/ed_resources/Soft_Drinks_and_School_Age_Childr
en.pdf.

8. A study by the Harvard School of Public Health found that for each additional serving of soda or juice
a child consumes per day, the child's chance of becoming overweight increases by 60 percent. See
National Alliance for Nutrition and Activity, Obesity and Other Diet-Related Diseases in Children,
http://www.cspinet.org/nutritionpolicy/Kidshealthfacts.pdf (last visited July 17, 2008) (citations
omitted); see also Marvin E. Goldberg & Kunter Gunasti, Creating an Environment in Which Youths are
Encouraged to Eat a Healthier Diet, 26 J. Pub. Pol. & Mktg. 162, 170-71 (2007) (noting the volume of
sugared soft drinks that adolescents consume and citing studies finding an association between soft drink
consumption and increased energy intake and body weight).

9. FTC, Marketing Food to Children and Adolescents: A Review of Industry Expenditures, Activities,
and Self-Regulation at 20 (July 24, 2008) ("FTC Rept."). Because consumers actually pay for the toy
that accompanies many fast food children's meals, companies responding to the FTC's Special Order did
not include the cost of these "self-liquidating" toys in their premium expenditure data. However, because
the toy is a significant part of many marketing campaigns, FTC staff was able to estimate the cost of the
premiums that quick service restaurants incur. If these costs are considered, expenditures for child-
directed marketing by fast food restaurants exceeded $520 million. Id. at 19-20.

10. The Robert Wood Johnson Found. & Am. Heart Ass'n, A Nation at Risk: Obesity in the United
States at 6, 23-24 (2005), available at
http://www.americanheart.org/downloadable/heart/1114880987205NationAtRisk.pdf. On average, youth
ages 11 to 18 eat at fast food restaurants twice a week. Id. at 23. In 2006, quick service restaurants
served more than 1.2 billion children's meals with toys to children 12 and under. FTC Rept., supra
note 9, at 19.

11. See, e.g., Shanthy A. Bowman, Steven L. Gortmaker, Cara B. Ebbeling, Mark A. Pereira & David S.
Ludwig, Effects of Fast-Food Consumption on Energy Intake and Diet Quality Among Children in a
National Household Survey, 113 Pediatrics 112 (Jan. 2004); see also Marla Reicks, Fast-Food
Consumption Among Minority Adults and Adolescents, Nutrinet (Univ. of Minn. Dep't of Food Sci. and
Nutrition), Jan. 2005, available at
www.fsci.umn.edu/pf/outreach/faculty_outreach/nutrinet/archives/january_2005/fast_food.html.




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