New legislation would have a dramatic impact on food and beverage advertising to children. The bill, the Healthy Kids Act (H.R. 4053) was introduced on Friday in the U.S. House of Representatives by Representatives Jim Moran (D-VA) and Bill Pascrell (D-NJ).
It has two major advertising
components. First, Section 3 of the bill
would require the Federal Trade Commission to promulgate rules defining
advertising and marketing directed at children and youth, including a
definition allowing the FTC to set the specific age covered by the rules. It also requires the FTC to issue rules
specifying categories of foods and beverages for which advertising of these
products to children would be considered an unfair act or practice. The legislation directs the FTC to utilize
rapid notice and comment rulemaking rather than the more rigorous Magnuson-Moss
rulemaking requirements. To allow the
FTC to conduct such a rulemaking, the bill repeals the limitation on the FTC’s
unfairness authority over children’s advertising that Congress put in place in
the late 1970’s, when the Washington Post
editorial board went so far as to call the FTC the “national nanny.” The categories of foods and beverages are
established in the bill in three tiers:
- Tier 1 consists of foods and
beverages that are “healthful for children and adolescents and the consumption
of which is encouraged,”
- Tier 2 consists of foods and
beverages that “do not exceed levels of …fat, sugars, and sodium that are
acceptable in a healthful diet for children and adolescents,” and
- Tier 3 consists of foods “which do not contribute to a healthful diet for children and adolescents and the consumption of which is discouraged."
Second, Section 4 of the bill would require the Federal Communications Commission to establish rules that at a minimum, would prohibit any ads classified as Tier 3 during children’s programming and limit any ads in Tier 2 to 2 minutes per hour on weekends and 3 minutes per hour on weekdays. These limits go much further than the 10 ½ minutes on weekends and 12 minute during the week ad time limits imposed by the Children’s Television Act for advertising during children’s programming.
This bill disregards the fact that many different foods can make up a healthy diet. There is nothing wrong with any category of food or beverage per se, as long as it is consumed in moderation. Instead, this bill requires government to make a food-by-food choice of what types of advertising can be shown and how much of it can be aired based on which foods it decides children should be “encouraged” and “discouraged” to consume. As has been established repeatedly by the courts, government cannot limit speech merely because it may be disfavored.
In his statement from the floor of the House, Rep. Moran stated, “…a child is not possessed of the full capacity for individual choice that is the presupposition of First Amendment guarantees.” However, the U.S. Supreme Court has stated on many occasions that the level of discourse in society cannot be lowered to the level of the sandbox. For these reasons, it is likely that these provisions would violate the First Amendment.
This bill would also likely go far beyond children. The findings of the bill mention the fact that obesity is rising among 12-19 year olds as well. Considering the bill allows the FTC to set its own definitions regarding the age covered by its rules, it has the potential to cover programming directed to teens and young adults as well.
ANA is a strong supporter of the Children’s Food and Beverage Advertising Initiative (CFBAI), which is the industry’s self-regulatory response to the obesity problem. The initiative, which represents over 80% of advertising to children, is committed to shifting the mix of advertising to healthier food and beverage choices and encouraging healthier lifestyles. We will continue to oppose strongly, however, government censorship of truthful and non-deceptive advertising of legal products.
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