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Since publication of the 2001 Surgeon General’s report, childhood obesity has become a front-and-center public health priority.(1)  Everyone from the CDC(2), to the Institute of Medicine (3), to the AMA (4), to this program (5) has weighed in on the subject. Numbers, dollars, lives, disease and disability … all are impacted, and all have been studied and projected in excruciating detail.

For the public at large, it’s difficult not to notice the increasing number of large and extra large children all around us —  these images are quite common and disturbing. The situation begs the question, “Why can’t we get a handle on this problem and solve it?” We don’t have the exact answer, but it’s clear that addressing the problem at its source is a remarkably complex task. Not only are we dealing with a nation-wide diet that is unhealthy, both in quantity and quality, but one that is skillfully promoted to an under-informed and under-active population. Food labeling and advertising, both under federal control, play a much larger role in the obesity epidemic than many realize or are willing to admit. In fact, food and the government – that is, the Federal Trade Commission and the Food and Drug Administration — have a troublesome legal history that relates directly to the challenges we’re facing with childhood obesity today.

But before we focus on these issues with the FTC and FDA, lets look at a few facts. American children are exposed to some 40,000 food advertisements per year, with 72% promoting cereal, fast food and candy. Studies show these ads to be effective. That is, they shape the product preferences of children, as well as their eating habits. And going to school doesn’t provide much relief. About 60% of U.S. middle schools continue to sell soft drinks from vending machines and the meals being served in the majority of our schools exceed the federal limit on total and saturated fats. Add to these examples the fact that only 28% of U.S. high school students are involved in daily physical education classes, and it’s easy to see why nutritionists describe our nation’s schools as “toxic environments.”(6)

If there’s any good news here, it’s that states are on to the issue and are increasingly becoming “legislative laboratories” when it comes to challenging childhood obesity. Since 1998, more than 100 state legislative initiatives to increase requirements and funding of physical education in schools have been introduced, enacted or are pending.  There have been nearly 60 legislative proposals to restrict school vending machines, not to mention the Clinton Foundation’s recent successful negotiations with the soft drink industry that will lead to the elimination of high calorie sodas from schools. Obesity task forces are forming in nearly every state. And if you would like to see improvements to walking or biking trails in your community or more focus on workplace fitness, its more than likely that someone in your state is, or soon will be, writing a law about it.(6,7)

But despite these positive steps at the state level, a variety of legal and political barriers hinder more widespread adoption of these initiatives. To better understand this, it’s important to become familiar with the history behind the relationship between the Federal Trade Commission, the Food and Drug Administration, and food itself.

The FTC has primary authority over food advertising, while the FDA regulates food labeling. (8) When looking at advertising, the FTC focuses on ads that are either “unfair” or “deceptive. “Unfair” ads would be those that “may cause substantial, unavoidable injury to consumers that is not outweighed by offsetting consumer or competitive benefit.” And advertising is considered “deceptive” if it is “likely to mislead consumers in a way that is material.”(9)

In 1978, the FTC waded into regulating child-oriented advertising, and it wasn’t a pretty sight. The public wasn’t sure it wanted a “national nanny,” and the food, toy, and entertainment industries went ballistic. (10,11) Together, they raised $16 million to fight regulation. Congress was extremely receptive and, for a time, suspended all funding for the FTC to send a clear message that they had treaded into a political hornets’ nest.(12) The next problem was more concrete. Regulators could not find a way to tailor the rules to meet their narrow objective — it was surprisingly difficult to prove that young children make up the majority of any television program audience. From a legal standpoint, the term “children’s programming” was illusive. And in the end, clear evidence that tied the ads to poor nutrition was lacking. The FTC acquiesced, giving up the fight, but only after documenting their findings and recommendations, a “message in a bottle,” if you will, for future generations.(6,13)

Today, the FTC is empowered to go after food advertising only if it is deceptive. A working definition of “children’s television programming” has been defined by the Children’s Television Act, and studies have found that children who watch more TV are less likely to be able to identify which of two foods is healthier.(14) Studies have also found that “about half of all nutrition-related information in television advertisements is misleading or inaccurate.”(15) Put it all together, and we have 30 more years of studies tying television to nutrition habits and preferences that promote childhood obesity. But, all that said, the legal case remains difficult to prove, and the opposition is broad and well funded. Our modern FTC’s approach to advertising “favors requiring more information over banning information, and avoids broad restrictions limiting both deceptive and non-deceptive speech.”(16)  Said in another way, choosing freely is deeply rooted in our consumer culture.

How about the FDA? Its authority comes from the 1938 Food, Drug and Cosmetic Act, which
requires that food labels be truthful and not misleading.(17)  In 1973, the FDA began to expand its
involvement in this arena. By 1994, “nutrition facts” labels were required on most food products to provide information on sodium, carbohydrate, sugar, fat and cholesterol.(18)  In 2003, trans fat content was added.(19)  By 2005, they were looking at calories and making sure serving size information was accurate.(20)  They also wanted to extend labeling to restaurant meals but buckled when they faced stiff political backwinds.(21)

The FDA benefits by being on the right side of the “free speech” argument — that is, “more information,” while the FTC — by regulating advertising — is rather easily positioned to appear to be limiting speech. The result? As public consensus grows that childhood obesity must be confronted, and our governmental bodies are unable to completely respond to the critical circumstances, the courts have become more active. But as has been clear in several highly publicized suits against fast- food giants, like McDonalds, this is no easy ride. For one thing, the First Amendment protects “commercial speech.” This is information that is related solely to the economic interests of the person or group speaking, no matter how low the information’s value, because it still might carry important information to the public.(22)  Therefore, if you were pursuing restrictions, you would have to prove that the proposed actions would lower childhood obesity and do so without unduly restricting information flow to adults. You would also have to show the rationale behind placing restrictions on some products and not others.(23)

What can we take away from this brief history of our past legal attempts to combat obesity? In
general, I think it’s now clear that pragmatic moves in the areas of least resistance are proving to be the best course.(6)  First, even though obesity is an age-wide epidemic, we should focus on children and adolescents. As we have seen with tobacco, public sentiment rises faster and higher when children are involved. Second, we must support states as legislative laboratories. They can test and prove out winning approaches for sound nutritional legislation. Third, since fighting food ads involves significant obstacles, how about counter-advertising, as was successful in anti-smoking campaigns? Fourth, let’s approach nutrition leaders in the food industry to advance self-regulation and fight childhood obesity as part of their social responsibility platforms. And finally, we need greater public education on food choices. The less we know, the more vulnerable we are to deceptive advertising.

For HealthCommentary, I’m Mike Magee.

References

1. The Surgeon General’s call to action to prevent and decrease overweight and obesity.  Rockville, MD: Office of the Surgeon General, 2001. http://www.surgeongeneral.gov/topics/obesity/calltoaction/CalltoAction.pdf

2. Centers for Disease Control and Prevention Website. Overweight and Obesity Resources. http://www.cdc.gov/obesity/

3. McGinnis, J.M. et al. Food marketing to children and youth: threat or opportunity? Washington, D.C.: National Academies Press, 2006. http://www.nap.edu/openbook.php?record_id=12847&page=15

4. American Medical Association. Educational Forum on Adolescent Obesity. Available at: http://www.ama-assn.org/ama1/pub/upload/mm/39/proceedingsobesity.pdf

5. Health Politics with Dr. Mike Magee. The Real Story Behind Obesity. November 10, 2004. Available at: http://www.youtube.com/watch?v=OnFzP4heGR0&feature=channel_page

6. Mello MM, et al. Obesity—The new frontier of public health law. NEJM. 2006; 354:2601-2608. http://content.nejm.org/cgi/content/full/354/24/2601

7. National Conference of State Legislatures. Health Promotion Program, State Legislation and Statute Database. http://www.nlm.nih.gov/medlineplus/obesity.html

8. Federal Trade Commission, Food and Drug Administration. Working agreement between FTC and Food and Drug Administration. 4 Trade Reg. Rep. (CCH) ¶ 9,850.01 (1971). http://www.ftc.gov/be/v030003.shtm

9. Federal Trade Commission Act, 15 U.S.C. § 45 (1914). http://www.stolaf.edu/people/becker/antitrust/statutes/ftc.html

10. Engle PC. The FTC as a national nanny. Washington Post. March 8, 1978:A14.

11. Story M and French S. Food advertising and marketing directed at children and adolescents in the US. International Journal of Behavioral Nutrition and Physical Activity. 2004;1:3. http://www.ijbnpa.org/content/1/1/3

12. Federal Trade Commission Improvements Act of 1980. P.L. 96-252, 94 Stat. 374 (1980). http://www.ipmall.info/hosted_resources/CLIP_checklist/PL_96-252.asp

13. Westen T. Historical perspective on FTC rulemaking and why it failed. Presented at Loyola Law School Symposium on Food Marketing to Children and the Law, Los Angeles, October 21, 2005. http://www.appetiteforprofit.com/newsletters/051115.htm

14. Children’s Television Act of 1990, 47 U.S.C. §§ 303(a)-(b), 394 (1990). http://www.law.indiana.edu/fclj/pubs/v46/no2/hayes.html

15. Byrd-Bredbenner C. and Grasso D. Health, medicine, and food messages in television commercials during 1992 and 1998. Journal of School Health, 2000; 70:61-5. http://0-www.sfu.ca.library.ucc.ie/media-lab/426/readings/Junkfoodadaussie.pdf

16. Federal Trade Commission, Department of Health and Human Services, Perspectives on marketing, self-regulation, and childhood obesity. Washington, D.C.: Federal Trade Commission, April, 2006.  Available at: http://www.ftc.gov/bcp/workshops/foodmarketingtokids/index.shtm

17. Food, Drug and Cosmetic Act, 21 U.S.C. §§ 321(n), 343(a) (1994). http://www.law.cornell.edu/uscode/21/usc_sec_21_00000343—-000-.html

18. Nutrition Labeling and Education Act of 1990, 21 U.S.C. §§ 343(q)-(r) (1990). http://law.justia.com/us/codes/title21/21usc343-1.html

19. Food and Drug Administration, Food labeling: trans fatty acids in nutrition labeling, nutrient content claims, and health claims, 21 C.F.R. § 101.9 (2003). http://www.fda.gov/Food/GuidanceComplianceRegulatoryInformation/GuidanceDocuments/FoodLabelingNutrition/ucm053479.htm

20. FDA asking for public comment on food label changes. Washington, D.C.: Food and Drug

Administration, 2005. http://www.ajpm-online.net/article/S0749-3797(06)00281-9/abstract

21. Epstein, R.A. What (not) to do about obesity: a moderate Aristotelian answer. Georgetown Law Journal. 2005; 93:1361-86.