April 19, 2013 by Tamara Piety
The New York Times had a provocative article a few weeks ago in the Sunday Magazine about the junk food industry. It is definitely worth a read. The author draws parallels between the big food industry tactics and big tobacco. This is an analogy made earlier by Kelly Brownell Rudd Center for Food Policy and Obesity and his co-author Kenneth Warner in this article “The Perils of Ignoring History: Big Tobacco Played Dirty and Millions Died. How Similar is Big Food”? The Perils of Ignoring History. One aspect of this story that may be a revelation to many people is the degree to which food has been deliberately engineered to engender what the article calls “the bliss” point. What should be apparent is that the industry has spent, and continues to spend, billions of dollars on engineering these foods and fine-tuning their marketing pitches. And data mining allows them to be more fine-tuned than ever, as this article from Advertising Age suggests. Facebook to Partner with Acxiom.
A good deal of the advertising dollars spent by advertisers or these products are spent directing ads at children and teens, which, when one considers what is being pitched, doesn’t make the analogy between tobacco and junk food seem that far fetched. See for example this quote from the AdAge article: “The targeting would hypothetically enable Coca-Cola to target to teenagers who’ve bought soda in the last month…”
I have long wondered why it doesn’t bother people more than it seems to that so much money is spent pitching directly to kids, since no one thinks children or teenagers are fully rational choosers (even if we pretend for sake of argument that adults are). So why is it okay to train this battery of persuasive efforts at them? And in many cases marketing efforts are clearly aimed at very young children. The figure of Ronald McDonald is an example. Is Ronald McDonald the New Joe Camel?
However, just as this issue is getting more attention (again – it saw a good run in the 1970s in the FTC’s ill-fated “Kid-Vid” investigation), the commercial speech doctrine has become so much more protective of advertising that any proposed restriction on advertising, even if it is to apply only to the most vulnerable group, children, is likely to fail First Amendment scrutiny. Indeed, some academics argued that even the mere proposal by an Interagency Working Group see here formed to try to propose industry self-regulatory guidelines on marketing of junk food to children, would fail the First Amendment because mere publication of such suggestions which did not have the force of law, might have a “chilling effect.” See here and here . It appears it was the government not the marketers, which was “chilled.” FTC weakens proposals. The irony is that given the state of the law, it might be easier to ban certain products, as mayor Bloomberg did, than it is to regulate the marketing of those same products. Yet, for those worried about the “Nanny state” a ban is arguably far more intrusive on liberty than a ban on marketing — except the marketers’ liberty. But the whole idea in protecting commercial speech was that it was supposed to further consumers’ liberty, not advertisers. So this is a bit of a puzzle.
See an earlier version of this post at The Faculty Lounge