193114 Possibilities for administrative regulation of food advertising to children

Monday, November 9, 2009: 3:40 PM

Michelle M. Mello, JD, PhD, MPhil , Department of Health Policy and Management, Harvard School of Public Health, Boston, MA
Growing awareness of the role that food and beverage advertising plays in the epidemic of childhood obesity has prompted calls for stricter oversight of advertising practices. The food and beverage industries have taken voluntary steps in this direction, but many commentators have called for increased government regulation. The mission of the Federal Trade Commission (FTC) makes it an obvious candidate to lead a new regulatory effort. However, FTC has a troubled history in the area of children's advertising regulation, and several political and legal factors, including First Amendment restrictions on commercial speech regulations, constrain its ability to act. This presentation reviews those obstacles, as well as the opportunities that exist at this juncture to expand FTC oversight of food advertising to children. FTC has considerable latitude to regulate individual food advertisements more rigorously, either on the basis that they are deceptive or on the basis that they are unfair. Broader rulemaking under the unfairness authority would require congressional intervention to expand FTC's scope of authority, but there exist possibilities for rulemaking under the deception doctrine. Finally, FTC could strengthen its efforts to encourage the food industry to more stringently regulate its own advertising practices and could provide mechanisms for making voluntary initiatives more meaningful.

Learning Objectives:
1. Evaluate the regulatory gaps arising from the FTC’s current position on regulating food advertising to children. 2. Identify permissible initiatives the FTC could undertake to regulate child-oriented food avertising under its existing authority. 3. Discuss what Congress could do to better empower federal agencies to promulgate effective rules to regulate food advertising to children.

Keywords: Obesity, Regulations

Presenting author's disclosure statement:

Qualified on the content I am responsible for because: I have a law degree and a PhD in Health Policy and Administration. I am a tenured Professor of Law and Public Health at Harvard and conduct research on public health law.
Any relevant financial relationships? No

I agree to comply with the American Public Health Association Conflict of Interest and Commercial Support Guidelines, and to disclose to the participants any off-label or experimental uses of a commercial product or service discussed in my presentation.