The food industry appears to have won the day in the debate over the marketing of food to children. However, Ben Cooper writes, while campaigners may be dismayed by the fact that mooted government voluntary guidelines, if they appear at all, will be far more lenient than once envisaged, the prospect of government intervention has at least prompted a revision of industry self-regulation.

What a difference three years make. When the Interagency Working Group (IWG ), comprising the Federal Trade Commission (FTC ), the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention (CDC ) and the US department of agriculture (USDA), first embarked on its task of looking into the advertising of food to children, campaigners were optimistic that stricter guidelines, albeit voluntary, governing the advertising of food to children would result.

President Obama, himself with two school-age children, had made tackling childhood obesity a priority, and the First Lady was set to launch her own campaign to address the problem.

More crucially, the Democrats had control of both the House and the Senate, and the President was still riding the crest of the extraordinary wave which had swept him to power. While espousing a ‘big tent’, consensual approach, he did not seem afraid to take on vested interests.

Since then, the Democrats have lost control of the House, and for all its noble intentions on childhood obesity the administration has had some rather larger fish to deep fry. 

Yesterday, at a joint hearing of two House committees the FTC confirmed that the finalised voluntary guidelines – if they appear at all – will be nowhere near what campaigners had once hoped for and a far cry from what the IWG had itself originally proposed. In fact, in the interpretation of some the FTC was there to petition Congress to be allowed to complete the work it had started.

Entitled Food Marketing: Can “Voluntary” Government Restrictions Improve Children’s Health?, the hearing was convened to scrutinise how the IWG had gone about its task. 

The critical opening remarks from the chairmen of both committees spoke to the strong feeling among some politicians that the IWG had stepped outside its original brief, and lack of support in the Republican-controlled House for the IWG’s draft proposals.

Rep. Fred UPTON (R – MI), who chairs the Energy and Commerce Committee, said in his opening statement that instead of conducting a study or providing recommendations, as it was briefed, the IWG “unilaterally” proposed “extreme” guidelines, using a definition of marketing “so broad that it endangered the philanthropic funding that many community sports programmes and schools rely on to fund athletic activities – the one thing proven to combat childhood obesity.”

He said the initiative seemed “to many of us and our constituents” to be “a first step toward Uncle Sam planning our family meals”, and also expressed concern about possible commercial impacts and job losses. “I am concerned about both the IWG’s recommendations and the manner in which they were produced going beyond the scope of their charge.” 

Rep. Joseph Pitts (R – PA), chairman of the Health Subcommittee, also observed that the IWG had not done what it was tasked to do, but instead produced “a sweeping set of ‘voluntary’ principles”, based on nutritional standards that he said exceeded those even of other government programmes.

While “very concerned” about obesity levels, parents rather than bureaucrats were in the best position to ensure good dietary and lifestyle choices on the part of children, Pitts said. “The IWG should completely withdraw these recommendations,” he said, “and do what they were instructed to do by Congress in the FY2009 Omnibus – conduct a study and report the findings of the study and their recommendations to Congress.”

At the hearing, David Vladeck, director of the FTC’s Bureau of Consumer Protection, outlined significant revisions to the proposals the IWG published in April, which were criticised by industry for being overly prohibitive and unworkable. He said the concessions would “go a long way to address industry’s concerns”.

Among the changes, Vladeck said the FTC would not be including marketing to adolescents aged 12 to 17 within the standards, with the exception of certain in-school activities. Activities such as charitable events, community programmes, sporting events and theme parks would also be exempt, while the FTC would not be recommending companies change trade dress elements of packaging or remove brand equity characters from products that do not meet nutrition criteria.

Vladeck said the revised guidelines would “share much in common” with the uniform nutrition standards unveiled by the Children’s Food and Beverage Advertising Initiative (CFBAI), an industry self-regulation programme, following the publication of the IWG proposals in April.

It is hard to see this as anything other than a significant victory for the food industry. And it is not just the changed political landscape and some dissipation of early reforming zeal that has brought this about. The industry lobbied hard against the IWG proposals and found much sympathy among Republican politicians, as the Pitts and Upton opening remarks underline.

Rep. Upton said the IWG had engaged in a “quasi-regulatory manoeuvre” rather than going about its designated task. Campaigners would certainly contend that if there has been any manoeuvring, it has been on the part of industry. In fact, it could be said that those pushing for tighter advertising controls have been fairly comprehensively out-manoeuvred by the food industry.

Democrats have tried to engineer tighter controls on advertising food to children before – and failed. So, has the combination of heavyweight lobbying, changing political fortunes and priorities and a judicious revamp of self-regulatory measures put paid to this attempt to introduce some form of soft regulation of children’s advertising? 

On the face of it, yes. However, to suggest that this attempt has foundered hopelessly may be overstating the case.

While the industry has clearly asserted itself, gained the initiative and arguably seen its interests largely prevail, along the way it introduced significant changes to its own self-regulatory practices, which have been welcomed as positive by NGOs and campaigners. Whatever industry advocates may say, this would not have happened without the early stance taken by the Obama administration and the draconian draft proposals of the IWG.

The FTC appears at best to be hoping that it will be allowed to finish its work and introduce voluntary guidelines, albeit ones which are largely in line with what industry says it is prepared to swallow.

For the campaigners, public health practitioners and politicians backing tighter controls the priority is now to ensure that this happens. 

When describing the IWG proposals as ‘quasi-regulatory’, Upton may have been using the term pejoratively to highlight creeping regulation and government over-reach, but it is entirely appropriate. 

Those on the other side of the debate are also well aware that even if the final standards are not much different from the industry’s own, and even though they are voluntary, the fact that they would be official, government guidelines is enormously significant. It may not be the victory they once hoped for, but it would mean their efforts over the past three years will have by no means been in vain.