Possibilities for administrative regulation of food advertising to children

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.