Federal regulations ban tobacco companies from advertising to kids and prohibit profanity on television before 10 p.m. But what is protecting children from predatory advertising of junk food, especially with sneaky online marketing tactics like the use of influencers?
Very little, thanks to outdated and weakened government oversight, according to a new legal analysis published in the Journal of Law, Medicine & Ethics by researchers at the NYU School of Global Public Health and the Friedman School of Nutrition Science and Policy at Tufts University.
"The U.S. overwhelmingly relies on industry self-regulation, which has not kept pace with modern marketing practices," says study author Jennifer Pomeranz, assistant professor of public health policy and management at NYU School of Global Public Health.
Self-regulation falls short in today's marketing landscape
Commercial speech, including advertising, is largely protected by the First Amendment. The Federal Trade Commission (FTC), which protects consumers from deceptive and unfair business practices, has limited authority over advertising directed at kids. While the FTC gathers and reports data on food advertising to youth and brings cases against food companies for specific unfair and deceptive practices, Congress stripped the agency of its authority to regulate marketing directed at children considered unfair in 1980, after the FTC tried to limit sugary food and drinks in commercials during children's television. The FTC has not attempted to use its authority over deceptive acts and practices, in part out of concern over similar backlash.
Instead, the U.S. largely relies on food and beverage companies to self-regulate. The industry-created Children's Food and Advertising Initiative (CFBAI) includes voluntary—and sometimes lax—nutritional standards for marketing to kids. However, the researchers say gaps in CFBAI allows for questionable marketing that makes the nutrition standards irrelevant: the initiative only applies to children under 12 and media directed at young kids, it does not apply to packaging or stores, and allows companies to market their brands by showing somewhat healthier products that introduce kids to unhealthy brand lines.
Importantly, today's marketing to children goes well beyond the traditional television commercial. Companies employ a variety of tactics to reach kids online, especially on YouTube. Products are often promoted using influencers and "host-selling," where a program character delivers a commercial adjacent to children's programming featuring the character, a practice that the Federal Communications Commission (FCC) prohibits on television but lacks a similar rule for online marketing.
