What Lockout? NBA’s Minnesota Timberwolves Weigh In On Something Far More Important

The comment period for proposed voluntary principles regarding marketing food to children closed late last week amid industry concern over regulatory “overreach.”  Congress in 2009 directed an interagency working group, representing FTC, CDC, FDA and USDA, to develop recommendations for the nutritional quality of food marketed to children and adolescents, ages 2-17. 

In late April of this year, the Working Group issued a preliminary proposal for voluntary principles to “guide industry in determining which foods would be appropriate and desirable to market to children to encourage a healthful diet and which foods industry should voluntarily refrain from marketing to children.”  The Working Group invited public comment.  

The Working Group’s proposed recommendations outline two primary principles:

(1) Foods marketed to children should provide a meaningful contribution to a healthful diet; and

(2) Foods marketed to children should be formulated to minimize the content of nutrients that could have a negative impact on health or weight.

The recommendations are intended to be voluntary but have attracted a hailstorm of criticism from industry, as well as support from various quarters.  Indeed, at the time this post was written, 413 public comments have been posted to the docket on the FTC’s website. 

That number may increase as more comments are uploaded, and we will delve into the substance of the comments in more detail in future posts, but, at first glance, what’s notable?  

-      The vast majority of comments were filed by individuals.  Perhaps not surprisingly, comments ran the gamut – from outrage (e.g., “Leave us alone, Nanny”) to support (e.g., “A good step in the right direction”).  On the whole, as is the norm with this type of proceeding, more individual comments seemed to support than to oppose the direction of the guidelines, and a significant number of health care practitioners weighed in on the side of the proposal.  (That, of course, does not mean that most of “the public” would favor the guidelines, due to the self-selecting nature of the sample size.  Only those exercised enough to comment are counted.)

-      Industry commenters expressed concern that the “voluntary” recommendations will become de facto rules reflective of FTC enforcement policy.  Comments filed to date by manufacturers, public relations agencies, advertising agencies and packaging companies all convey several common themes:

-      The proposal is, in essence, a “ban” of all advertising to children;

-      The proposal will interfere with commercial speech intended for adults (the proposal calls for advertising to be considered “marketing to children” if 20% of the audience is comprised of persons aged 12-17);

-      The proposal runs counter to the President’s Executive Order 13563, which stresses that regulations be based on the “best available science” and promote “economic growth, innovation, competitiveness, and job creation”;   

-      The FTC’s Bureau of Economics and others have recently concluded that the number of advertisements seen by children has actually decreased during the obesity epidemic, raising questions as to the need for these recommendations at all; and

-      The recommendations are so broad that they effectively would ban advertisements for foods that the federal government itself elsewhere has deemed “healthy” (e.g., cereal).  

So where do the NBA’s Timberwolves fit in?  Well, they, too, submitted comments expressing concern over the recommendations.  (Apparently, there is a lot of downtime during a work lockout.)

The allegations of governmental overreach apparently concern the administration as, even before the comment period closed, David Vladeck, Director of the Bureau of Consumer Protection at FTC, posted his take on various “myths that have been percolating about the proposed principles” – including the allegation that they are anything other than voluntary.  You can read Director Vladeck’s take here.   

We’ll keep you posted on this debate as it develops – and on anything else of interest that we can mine from the comments as we review them.