First Amendment and Food Marketing

…A Children’s Story
By Staci Morrison, Boston University Master candidate, Communication Law, Professor Carter,  April 25, 2012

The First Amendment to the Constitution of the United States has become a symbol for American ideals outside the constraints of basic speech. The First Amendment states,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances1.

Yet, since its adoption in 1791, there has been much debate on the interpretation of what constitutes “freedom of speech” and to whom it is entitled.2 One group of Americans about which the First Amendment continues to effect profound change is likely ignorant to the battle for their upbringing: children.

Children are the malleable and promising minds of America’s future.3 As such they are also the battleground of an ongoing war between commercial interest of businesses and protective interest of organizations aiming to alter childhood eating behaviors before they lead to long-term national health concerns.4

This paper will present the key aspects of the struggle for brand loyalties of American youth, focusing on the industry of food marketing.

Advertising Today
Advertising has been alive and strong longer than the United States has existed.5 An estimated $175 billion is spent annually on advertising in the United States, $100 billion of which is dedicated to messages spread through mass media.6 In the past decade alone, the industry and finances driving it have grown dramatically. Recent studies show the advertising industry continues to grow as a whole, and the forecast, despite economic faltering, will remain positive7. Increasingly, children have become a target market for this burgeoning mass media industry. A glance at the volume of cable channels dedicated to children’s programming8 shows a vibrant
child-oriented market, which causes concern for many organizations that clamor for federal regulation to step in.9

Complications of Commercial Speech
Advertising, or commercial speech, has not always enjoyed federal protection. Until the 1970s, the court gave advertising the same Constitutional protection as obscenity: none.10 However, in 1976 this changed with Virginia State Board Pharmacy v. Virginia Citizen Consumer Council, Inc., which compelled the court to strike down a ban prohibiting advertising of prescription prices, in the interest of allowing a free flow of information to consumers. Thus, a new standard of commercial speech was established.11

Several years later, in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, the court built upon the Virginia protection to create the current standard of speech, the Central Hudson Test.12 The Central Hudson Test is a four-step framework for determining restrictions on commercial speech.13

For a commercial expression to be protected by the First Amendment it must:

  1. at least concern lawful activity;
  2. not be misleading;
  3. the government interest in regulating the speech must be substantial;
  4. the regulation of speech must both directly advance the government interest and be narrowly tailored to serve that interest.14

Applied generally to the issue of food marketing to children, reasons for limited regulation begin to surface. First, advertisements for food are lawful, as food is a necessary element for a child’s survival. Next the ad may present a certain nutrition claim, which is arguably not misleading,

though it also may not divulge the unhealthy ingredients also part of the product.15 Does the government have a substantial interest in regulating this advertisement? Yes, the government has an interest in reducing childhood obesity16 or risk of disease.17 Finally, is the proposed regulation narrowly-tailored to directly prevent childhood obesity? The answer to the final step of Central Hudson of course is dependent upon the regulation in question, but so far most proposed regulation does not pass the step successfully.18 The case, Lorillard Tobacco v. Reilly, put the Central Hudson test to work in interest of protecting children’s health. The Attorney General of Massachusetts and a coalition of 40 other states attempted to regulate advertising of cigarettes, smokeless tobacco and cigars as a means of prevent and eliminate the use of these products by children under legal age. Proposed restrictions on promotions, retail sale transactions by mail, labeling, advertising tobacco products outdoors
and at point-of-sale19 were scrutinized according to the Central Hudson Test, and ultimately found to be over-broad. Limits on advertising would limit tobacco salience and access for underage children, but would also place limits on adult consumers.20

Therefore, the restrictions were not legal.

Special Concerns for Children
In certain cases, the government acknowledges a heightened vulnerability to advertising persuasion when the ad is directed to children, considered to be a special audience.21 Special audiences may vary with context but examples are children, terminally ill people, pregnant women and poor people.22

The distinguishing characteristics of children in the context of advertising are immaturity and inexperience. On the cognitive level, children begin noticing television by the age of six months but do not understand it to be more than colors, sounds, action. As a child grows, he will decipher characters but young children do not yet understand the concept of a narrative. As such, they have trouble understanding a story longer than one or two minutes long,23 though this stage of cognitive development may make following a television program plot difficult, most advertisements fall within the range of attention.

Not until children are in the 5-7 year-old stage do they become aware of a distinction between commercials and programming, and still have difficulty perceiving the profit-driven motives of advertisers. Even with a 5-second “bumper” before and after commercial breaks alerting children to a change in content,24 children will not understand the reason or motives for the change unless  they are at least 7-11 years old and the bumper is worded in the language of the child.25 Upon reaching 10-12 years, children have a basic idea of the economic nature of advertising on television yet they are only skeptical of advertising claims made about toys or products with which they are closely familiar.26

On the moral and emotional levels, children can only gauge advertising according to the experience they have.27 Thus, the stages of development correlate with the age of the child, and reflect a development in understanding increasingly motives and messaging. Herein lies part of the danger of advertising directed at children. Television presents young viewers with a subjective portrait of the world according to what advertisers would like viewers to consume at a stage in life when children should be making independent, well-thought decisions on what it means to be a consumer.28

However, the court remains unwilling to restrict speech, preferring to act in the contrary. In Brown v. Entertainment Merchants Association,29 the court upheld that it is part of a child’s First Amendment rights to be exposed to literary, artistic and other ideas conveyed through mass media.30

Rising Tide of Child Consumers
Despite special audience arguments,31 marketing to youth continues to grow.32
Companies continue advertising, generally unhindered by court rulings that minors have an underdeveloped sense of maturity and responsibility, often resulting in poor decision choices.33 Today, children are estimated to watch about three hours of television daily, adding up to exposure to 20-40,000 advertisements in a year.34 Likewise, the amount of advertising directed at a specific age group of children grows with the child. For example, children ages 2-7 see approximately 4,400 ads, children ages 8-12 see 7,600 and children 13-17 see 6,000 ads.35

children ages 2-7 see approximately 4,400 ads, children ages 8-12 see 7,600 and children 13-17 see 6,000 ads

New media and growing Internet use by younger audiences provides advertisers additional opportunity to sell to future consumers.36 One example of such an opportunity is the advergame. Advergames are youth-oriented games created by companies to introduce children to brands under the guise of an interactive, web-based puzzle, arcade-like game37 and/or customizable avatar.38 Researchers from the Rudd Center for Food Policy and Obesity at Yale University observed that not only are children increasingly accessing advergames – they are 77% more likely to visit pages with advergames than other sites – they also spend 88% more time on advergame sites than other webpages.

Playing advergames comes with a price for these children. The unhealthy food brands sponsoring each game encouraged unhealthy snack choices in the consumer children.39 Even if the advergame was developed by a brand promoting healthy food,40 children chose unhealthy snacks, augmented by 50% more healthy food than children playing advergames sponsored by unhealthy food brands.41

The study suggests that children make eating choices based on external influences such as
appealing characters and visual stimulants42. This reinforces earlier research assertions that games keep kids’ defenses low, or suppress their natural skepticism, by distracting them from the advertising message.43

Influence of Media on Child Development
If they are defenseless against incoming messages, what developmental effects does this free flow of commercial information44 have on America’s children? Most of the research to address this question has focused on the content of television, as until recently it was the most prominent and dominant media engaging children.45 As demonstrated by both the Central Hudson Test and Lorillard Tobacco, the preference of governmental speech regulation is to abstain when possible, for, “if the First Amendment means anything, it means that regulating speech must be a last – not first – resort.” 46 Even so, research prove that children identify with favorite television characters through a phenomenon called wishful identification,47 one of many implicit psychologic techniques used in advertising to engage and persuade audiences.48 Across all audiences, viewers of may desire to be like characters they like or perceive to have a personality or perspective similar to them.

Wishful identification, or general identification49, may explain why children as young as six recognize Joe the Camel as well as they recognize the Mousketeer logo of the Disney Channel.50

Considering food and beverage companies spend more than $1.6 billion per year to promote their products to American children and adolescents,51 it is not surprising that many countries are banning food advertising during children’s programming,52 while other countries53 have banned the use of cartoon characters in children’s food advertising.54

Even in the interest of a group acknowledged to be especially vulnerable to media persuasion, 55there are few policies and standards for children food advertising. Children-specific regulation falls under the larger umbrella of advertising regulation, which is largely self-imposed.56

Advertising Regulation Attempts
There have been a few successful standards regulating media directed at children, one of which is 1990 Children’s Television Act (CTA). CTA requires commercial television broadcasters to limit the volume of commercial content airing during children’s programming.57 With the rise of the Internet, promulgation of web-connected personal technology devices and saturation of social media, television no longer has a stronghold on the attention of America’s youth.58 An act from 1990 may longer be effective in addressing the role of mass media on children’s development.59

Additionally, organizations like the Children’s Advertising Review Unit (CARU), established by the National Advertising Review Council60 is intended to keep an eye on the industry in the interest of children’s protection. CARU seeks to review and evaluate advertising directed at children and ensure advertisers are compliant with CARU’s Self-Regulatory Guidelines for Children’s Advertising. If a campaign is misleading, inaccurate or unaligned with these guidelines, a remedy is sought though voluntary change by the offending advertiser, then deferred to the FTC or FCC for federal review if necessary.

CARU admits the Self-Regulatory Guidelines for Children’s Advertising to be “deliberately subjective,” 61 with the interest of taking the unique impression an advertisement can make on a child. Apart from the vague and general subjectivity of CARU’s self-regulation, no legal authority supports these guidelines; CARU depends entirely on voluntary cooperation with advertising companies. However, the effectiveness of CARU has been questioned. Concerns relate to few resources available to CARU to evaluate a large pool of advertising62 and to its neutrality in regulating the behavior of its members, such as McDonald’s Corporation, CocaCola Company, Frito-Lay, Inc. and General Mills, Inc.63

Expansion of commercialization64 in media outside television65 prompted the formation of nonprofit organizations such as Campaign for a Commercial-Free Childhood and Children’s Food and Beverage Advertising Initiative. These organizations have formed to “encourage healthier dietary choices and healthy lifestyles66” for children and to “reclaim[] childhood from corporate marketers.67”

Statistics on the nation’s overall health reflect that these groups fall short, that national health is not improving.68 According to a 2010 study by the Center for Disease Control and Prevention, the past twenty years has seen a spike in obesity rates throughout the country, with some states reaching an obesity prevalence of 30% or more.69 Among children, 12.5 million, or 17% of American children were found to be obese.70

Today one-third of children in the United States are overweight or obese and rates of diet-related diseases in youth are at all time high.71 More adults are obese than children, and more obese than they were in their youth and teenage years. Though this point is outside the focus of the present report, it is worthwhile to explore the food marketing environment for this demographic to determine if it played a role in the consumption habits of today’s adults. Such a study may provide information about whether the self-regulation of the past fifty years, since the implementation of Virginia, has played any role.

Barriers to Effective Advertising Regulation
Despite the sobering numbers, increased regulation will likely conflict with the primary Constitutional goal of maintaining free flow of information to the consumer.72 Informational freedom is paramount, for “even in monopoly markets, the suppression of advertising reduces the information available for the consumer decisions and thereby defeats the purpose of the First Amendment.” 73

increased regulation will likely conflict with the primary Constitutional goal of maintaining free flow of information to the consumer

One roadblock to advertisement regulation is corporate interest in developing brand loyalties.74 Supposing the government had a strong, objective interest in regulating the industry, big players such as Nestle, Kellogg, Viacom, McDonald’s, General Mills, and Time Warner could easily outspend the government and pro-regulation organizations.75

Furthermore, there is debate and ongoing investigation into the potential decrease in the quality of programming should advertising be removed.76 Many European countries have already enacted regulation on children’s programming. The result has not been entirely positive, as a lack of advertising may reduce for-profit messaged sent to children, but it also reduces the amount of funding available to television programming.77

In Britain, for example, regulation of commercial public broadcasting restricting food advertising to children on channel ITV resulted in a 65% spending cut, reducing quality and volume of programs.78 According to ITV, almost all of its £45 million ($67 million) annual revenue from children’s advertising is reinvested into “home-grown kids’ programmes.” 79

There is also the debate on whether regulation in other areas works well enough to justify greater regulation. In the example of COPPA,80 children’s desire to be part of Facebook has led to many children and parents working together to circumvent the law.81

Another example of lackluster regulation aimed at children, the KidVid Act, remains an example of sweeping regulation failure82 and remains an unfortunate congressional reminder of failed restriction attempt.83

Past Recommendations for the Future
The battle of influence over America’s youth shows no signs of resolution. Compromise of the First Amendment speech protection is not a solution,84 effectively eliminating most proposals for advertising regulation.85 Thus, the remedy, as enacted with debatable success thus far, is to focus on providing more, accurate information to future adult consumers.86

Awareness of potential harm to children is becoming more widespread. Note the key recommendations presented by the COPA Commission in preserving children’s well-being in the digital landscape:

“…aggressive efforts toward public education, consumer empowerment, increased resources for enforcement of existing laws, and greater use of existing technologies. Witness after witness testified that protection of children online requires more education, more technologies, heightened public awareness of existing technologies and better enforcement of existing laws.87”

These points do not specify sexually explicit content; the same recommendations could also apply to food content in mass media, though the government seems reluctant to thoroughly engage in this particular activity.88

One noteworthy attempt to counter negative ads with information is the FTC advertising awareness website called Admongo.89 With the intent to teach children ages 8-12 about the information behind consumer decision-making,90 reception of the website has been mixed.91 Skeptics point to the research showing that by the time children have reached age 8, they may have already seen nearly 8,000 advertisements,92 Admongo does not address the needs of children younger than 8-12, who arguably are at higher risk of persuasion.93 However, the site is well-tailored to children and competes with commercial advergames in visuals and activities.94

Like most efforts addressed in this paper, Admongo is a small, potentially fleeting step in the direction of good intention. Following the lead of Virginia, should the government continue to seek regulation of food marketing to children, it must encourage a free flow of balanced information into the marketplace of ideas. This may mean focusing governmental efforts on supporting existent healthy marketing campaigns instead of regulating the unhealthy ones.

Inline References

1 T. Barton Carter, Marc. A Franklin, Amy Kristin Sanders, Jay B. Wright, The First Amendment and the Fourth
Estate: Law of Mass Media, p. 1128, (11th ed. 2010).
2 Id. at p. 35-19.
3 National Institute of Health, 1969 Conference on Food, Nutrition, and Health: Section 4, Final Report (1969), http://www.nns.nih.gov/1969/full_report/White_House_Report2_S4.pdf.
4 Centers for Disease Control and Prevention, Guidelines for school health programs to promote lifelong healthy eating, MMWR (Jun 14, 1996), http://www.cdc.gov/mmwr/pdf/rr/rr4509.pdf.5 Brian L. Wilcox, Dale Kunkel, Joanne Cantor, Peter Dowrick, Susan Linn, &Edward Palmer, Report of the APA Task Force on Advertising and Children. http://www.apa.org/pubs/info/reports/advertising-children.aspx.
6 [missing]
7 Marc E. Babej, U.S. Ad Spending Grows Fifth Quarter in a Row… But Pace of Growth is Slowing, Forbes (Jun. 16,2011), http://www.forbes.com/sites/marcbabej/2011/06/13/u-s-ad-spending-grow-fifth-quarter-in-a-row-but-pace-ofgrowth-is-slowing/.
8 Aviva Lucas Gutnick, Michael Robb, Lori Takeuchi, Jennifer Kotler, Always Connected: The New Digital Media Habits of Children (2011), http://www.joanganzcooneycenter.org/upload_kits/jgcc_alwaysconnected.pdf.
9 Campaign for a Commercial-Free Childhood, CCFC, http://www.commercialfreechildhood.org/.10 Carter, et al., supra. See note 1 at pp. 601.
11 Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
12 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S. Ct. 2343,
65 L. Ed. 2d 341 (1980).
13 Carter, et al., supra. See note 1 at pp. 607-622.
14 Id.
15 Martin Redish, Childhood Obesity, Advertising and the First Amendment (Jun. 8, 2011), http://www.gmaonline.org/file-manager/Health_Nutrition/childhood_advertising__firstamendment.pdf.
16 The White House Childhood Obesity Task Force, Childhood Obesity Task Force Unveils Action Plan: Solving the Problem of Childhood Obesity Within a Generation, http://www.whitehouse.gov/the-press-office/childhood-obesitytask-force-unveils-action-plan-solving-problem-childhood-obesity-.
17 CDCP, supra. See note 3.
18 Redish, supra. See note 11 at page 20.
19 Lorillard Tobacco Company v. Reilly, 533 U.S. 525, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001).
20 Id.21 James W. Potter, Media Literacy, p. 63, (5th ed. 2010).
22 Federal Trade Commission, FTC Policy on Deception (Oct. 14, 1983), http://www.ftc.gov/bcp/policystmt/addecept.htm.
23 Potter, supra. See note 20.
24 Id.25 Wilcox, et al. supra. See note 3,
27 Consumers Union: Selling America’s Kids: Commercial Pressures on Kids of the 90’s, http://
http://www.consumersunion.org/other/sellingkids/summary.htm.
28 Id.
29 Brown v. Entertainment Merchants Assn., 131 S. Ct. 2729, 2733 (2011).
30 Id.31 Brown, supra. See note 28.
32 IBISWorld, Inc., The Changing Landscape of Advertising in Media, Special Report (Feb, 2010),
33 Graham v. Florida, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).
34 Elizabeth Moore, It’s Child’s Play: Advergame and the Online Marketing of Food to Children, http://www.kff.org/
entmedia/upload/7536.pdf.
35 Id.
36 Karen Montgomery, Digital Kids: New Online Children’s Consumer Culture, NORDICOM, http://
http://www.nordicom.gu.se/common/publ_pdf/87_189-208.pdf.
37 Alice Park, How Online Games Can Influence What Kids Eat, TIME (Jan. 10, 2012), http://healthland.time.com/
2012/01/10/how-online-games-can-influence-what-kids-eat/.
38 Moore, supra. See note 30 at p. 15.39 Park, supra. See note 33.
40 Id. (Healthy advergame was sponsored by Dole, promoting fruits).
41 Id.
42 Alice Park, Why Cartoon Characters Make Kids’ Food Taste Better, TIME (Mar. 8, 2011), http://healthland.time.com/2011/03/08/why-cartoon-characters-make-kids-food-taste-better/.
43 Consumers Union Report, supra at Product Placement, http://www.consumersunion.org/other/sellingkids/productplacement.htm.
44 Virginia, 425 U.S. at 748.45 Mary Story and Simone French, Food Advertising and Marketing Directed at Children and Adolescents in the US,
International Journal of Behavioral Nutrition and Physical Activity (Feb. 10, 2004), http://www.ijbnpa.org/content/1/1/3#.
46 Thompson v. Western States Medical Center, 535 U.S. 357, 373 (2002).
47 Cynthia Hoffner. Children’s Wishful Identification and Parasocial Interaction with Favorite Television Characters, Journal of Broadcasting and Electronic Media (1996).
48 Jennifer L. Harris & Samantha K. Graff, Protecting the Public by Incorporating Scientific Research: Protecting Young People from Junk Food Advertising: Implications of Psychological Research on First Amendment Law, American Journal of Public Health, (Feb. 2012), http://www.yaleruddcenter.org/resources/upload/docs/what/
advertising/FirstAmendmentJunkFoodAdvertising_AJPH_2.12.pdf.
49 Hoffner, supra. See note 42 at p. 1.
50 Moore, supra. See note 25.51 Federal Trade Commission, Marketing Food To Children and Adolescents: A Review of Industry Expenditures, Activities, and Self-Regulation: A Federal Trade Commission Report To Congress (July 2008), http://www.ftc.gov/os/2008/07/P064504foodmktingreport.pdf.
52 Prevention Institute, Restricting Television Advertising to Children, Nutrition Policy Profiles (May 2002), http://www.preventioninstitute.org/CHI_food_advertising.html.
53 Corinna Hawkes, Marketing Food to Children: The Global Regulatory Environment, World Health Organization (2007).http://www.who.int/dietphysicalactivity/regulatory_environment_CHawkes07.pdf.
54 Center for Science in the Public Interest, Food Marketing in Other Countries (Feb. 16, 2007), http://www.cspinet.org/nutritionpolicy/foodmarketing_abroad.pdf.
55 FTC, supra. See note 15 at page 1.
56 Story, supra. See note 34.
57 Carter, et al., supra. See note 1 at p. 675.58 Montgomery, supra. See note 26.
59 Id.
60 Children’s Advertising Review Unit, About Us (2008) http://www.caru.org/about/index.aspx.
61 CARU, supra. See note 47.
62 Angela Campbell, Self-Regulation and the Media (Jun. 16, 1999), http://www.law.indiana.edu/fclj/pubs/v51/no3/CAMMAC15.PDF.63 Children’s Advertising Regulation Unit, Supporters (2008), http://www.caru.org/support/supporters.aspx.
64 IBISWorld Report supra. See note 23.
65 Montgomery, supra. See note 26.
66 Better Business Bureau, About the Initiative (2012), http://www.bbb.org/us/about-the-initiative/.
67 CCFC, supra. See note 8.
68 National Institute of Health, National Nutrition Summit 2000, Background Brief, http://www.nns.nih.gov/2000/background/background_brief/brief.htm.
69 Centers for Disease Control and Prevention: U.S. Obesity Trends (Jul. 10, 2011), http://www.cdc.gov/obesity/data/trends.html. (Alabama, Arkansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Oklahoma, South Carolina, Tennessee, Texas, and West Virginia reached 30% or greater obesity prevalence).
70 Id.71 Harris, supra. See note 37 at page 14.
72 Virginia, 425 U.S. at 748.
73 Carter, et al., supra. See note 1 at p. 609.
74 Emily Bazelon, Why Facebook is After Your Kids, The New York Times (Oct. 12, 2011), http://www.nytimes.com/2011/10/16/magazine/why-facebook-is-after-your-kids.html.75 Nancy Watzman, Food and media companies lobby to weaken guidelines on marketing food to children, Sunlight Foundation Reporting Group (Dec. 5, 2011), http://reporting.sunlightfoundation.com/2011/Food_and_media_companies_lobby/#comments.
76 The Economist, Kid gloves, The Economist (Jan. 4, 2011), http://www.economist.com/node/464997.
77 Id.
78 Ofcom, Ofcom statement on reduction of children’s programmes (Mar. 18, 2008), http://stakeholders.ofcom.org.uk/broadcasting/tv/children-itv/.
79 The Economist, supra. See note 62.80 Children’s Online Privacy Protection Act, COPPA, http://www.coppa.org/coppa.htm.
81 Bazelon, supra. See note 60. (In the case of Facebook, children under 12 are signing up for Facebook accounts
without the permission of parent/guardian despite federal law prohibiting children from being part of websites that
require and use personal data).
82 FTC supra. See note 1.
83 Susan Bartlett Foote and Robert H. Mnookin, The “Kid Vid” Crusade, The Public Interest (1980), http://
http://www.aeforum.org/aeforum.nsf/3deac671ffcb0cc780256c5100355eb5/
fd6f719ad103835b802567b6003de968/$FILE/Okid0011.pdf
84 Virginia, 425 U.S. at 748.
85 Redish, supra. See note 11.
86 National Institute of Health, supra. See note 2.87 COPA Commission, Final Report: Recommendations (2000), http://www.copacommission.org/report/
recommendations.shtml.
88 Redish, supra. See note 11 at page 20.
89 Federal Trade Commission, Admongo.gov, http://www.admongo.gov.
90 Id.
91 CommonSense Media, Admongo (2012), http://www.commonsensemedia.org/website-reviews/admongo.
92 Moore, supra. See note 25.93 Seth Stevenson, World of Adcraft, Slate (May 10, 2010), http://www.slate.com/articles/business/ad_report_card/

2010/05/world_of_adcraft.html.
94 Id.

Full References