Guidance for Food Advertising Self-Regulation

An historical overview of the investigations of food, nutrition and weight loss advertising of the Children's Advertising Review Unit (CARU) and the National Advertising Division (NAD)EXECUTIVE SUMMARY In fulfillment of its mission to provide leadership in advertising self-regulation and to increase the understanding of the role of self-regulation of food advertising to children and adults, the NARC Board of Directors has published this White Paper. NARC undertook this White Paper because of a concern that there could be widespread lack of awareness of the self-regulatory system's work with food advertising. A better understanding of advertising self-regulation, public awareness of the role of self-regulation, and the important examples of food advertisers' voluntary compliance with CARU and NAD decisions and recommendations can increase public confidence that advertising meets the highest standards of truth and accuracy. C. Manly Molpus, President and CEO of the Grocery Manufacturers of America (GMA, a trade association representing major food industry manufacturers), also suggested that many consumers, companies and policy makers would benefit from a greater understanding of all that self-regulation has accomplished in the United States and thus better appreciate its full potential to be a significant force in the future. This White Paper documents ongoing self-regulatory efforts, publicizes the existing decisions that have been made in the category of food advertising and provides an historical overview with representative examples from over 900 cases and inquiries on food and nutrition advertising by CARU and NAD. It also includes a section on current developments that synthesizes CARU's principles, guidelines and decisions related to food advertising to children. Current Developments Health and Human Services Secretary, Tommy Thompson, has stated that "obesity has become a crucial health problem for our nation" and Dr. Julie Gerberding, Director of the Centers for Disease Control and Prevention, refers to "the epidemic of overweight among today's youth." The significance of the problem for children is highlighted in a report from the American Obesity Association (AOA), which estimated that 15.5 percent of adolescents (ages 12 to 19) and 15.3 percent of children (ages 5 to 11) are obese. Those figures have more than doubled for children over the last two decades and tripled for adolescents in the same time period. Clearly, there is no single cause for the rising incidence of childhood obesity and no simple solution. Many factors are involved including, but not limited to, the severe reduction in physical education programs in schools, the replacement of outdoor activities with sedentary activities and the over-consumption of food. Marketers of food products are currently responding to this very serious public health concern. The food industry has responded with numerous product innovations and education programs. Positive steps include the addition of nutritional information on menus to indicate fat, calories and fiber, the removal of trans fat from marketed snacks, new lines of products without fatty acids and lines of nutritionally enhanced products.Yet, if a lack of confidence in advertising provokes unnecessary restrictions on information available to consumers, then both producers and consumers will lose. Confidence can be increased by a better understanding of advertising self-regulation. The Advertising Self-Regulatory Process The Federal Trade Commission ("FTC") and the Food and Drug Administration ("FDA") are the principal federal regulators of advertising and labeling claims for foods. The next level of protection, and probably second only to the advertisers themselves in terms of the volume of advertising reviewed, is the advertising industry's system of self-regulation created by advertisers, their agencies, and the media. NARC In 1971, the Association of National Advertisers (ANA), the American Association of Advertising Agencies (AAAA), and the American Advertising Federation (AAF) allied themselves with the Council of Better Business Bureaus (CBBB) to create an independent self-regulatory body -- the National Advertising Review Council (NARC). The goal of NARC is to sustain the highest standards of truth and accuracy in advertising through self-regulation and, in turn, provide guidance and set standards of truth and accuracy for national advertisers. The self-regulatory system developed by NARC encourages advertisers' cooperation and compliance by focusing on three goals: increase public trust in advertising maintain a level playing field for settling disputes among competing advertisers minimize the need for government involvement in the advertising business. CARU The Children's Advertising Review Unit (CARU) is the self-regulatory body for children's advertising and plays a major role by insuring truthful, non-deceptive advertising to children under the age of 12. CARU was founded in 1974 to promote responsible children's advertising under NARC policy direction. CARU's mission is not only to ensure the truth and accuracy of child-directed advertising, but, because of the inherent susceptibilities of young children, to ensure that advertising to children meets a host of principles and guidelines created to protect children. These precepts are embodied in the Self-Regulatory Guidelines for Children's Advertising (the Guidelines). CARU's Self-Regulatory Guidelines are deliberately subjective, going beyond the issues of truthfulness and accuracy to take into account the uniquely impressionable and vulnerable child audience. Pursuant to its charter, CARU handles competitive challenges and consumer complaints, but over 95% of its inquiries arise from its own monitoring of television, print, radio and Website advertising. CARU's basic activities are the review and evaluation of child-directed advertising in all media, and online privacy practices as they affect children. When these are found to be misleading, inaccurate, or inconsistent with CARU's Self-Regulatory Guidelines for Children's Advertising or relevant laws, CARU seeks change through the voluntary cooperation of advertisers. From its inception, CARU has reviewed and reported on over 1,100 child-directed advertisements. Initially, most were for toys and cereals, the products most frequently advertised to children, but over the years the universe of child-directed advertising has expanded to include a wide range of products. Over 150 cases and inquiries have involved food advertising to date. The issues addressed in CARU cases and inquiries have been remarkably consistent over the past three decades, and CARU's Guidelines have consistently addressed them. Whether the issue was encouragement of excessive consumption of snack foods, denigration of meals in favor of snack foods, misleading comparisons of nutrient content, exaggeration of the benefits of the product, CARU's case histories demonstrate that its monitoring efforts have been effective in identifying food advertising that violated its Guidelines, and in encouraging advertisers to voluntarily modify those ads. As CARU's record has grown, its caseload has increasingly included a variety of cases that involve the advertising of food to children. CARU's Guidelines contain several principles and guidelines that either specifically address, or are applicable to, advertising of food to children. The relevant sections of the Self-Regulatory Guidelines for Children's Advertising are as follows: Principles 1. Advertisers should always take into account the level of knowledge, sophistication and maturity of the audience to which their message is primarily directed. Younger children have a limited capacity for evaluating the credibility of information they receive.... Advertisers, therefore, have a special responsibility to protect children from their own susceptibilities. 4. Recognizing that advertising may play an important part in educating the child, advertisers should communicate information in a truthful and accurate manner ... with full recognition that the child may learn practices from advertising which can affect his or her health and well-being. 7. Although many influences affect a child's personal and social development, it remains the prime responsibility of the parents to provide guidance for children. Advertisers should contribute to this parent-child relationship in a constructive manner. Product Presentations and Claims "...[A]dvertisers need to examine the total advertising message to be certain that the net communication will not mislead or misinform children."1. Copy, sound and visual presentations should not mislead children about product or performance characteristics. Such characteristics may include...nutritional benefits. 2. The advertising presentation should not mislead children about benefits from use of the product. Such benefits may include, but are not limited to, the acquisition of strength, status, popularity, growth, proficiency and intelligence. 7. The amount of product featured should be within reasonable levels for the situation depicted. 8. Representation of food products should be made so as to encourage sound use of the product with a view toward healthy development of the child and development of good nutritional practices. 9. Advertisements representing mealtime should clearly and adequately depict the role of the product within the framework of a balanced diet. 10. Snack foods should clearly be depicted as such, and not as substitutes for meals. 11. If objective claims are made in an advertisement directed to children, the advertiser should be able to supply substantiation. Sales Pressure Children are not as prepared as adults to make judicious, independent purchase decisions. Therefore, advertisers should avoid using extreme sales pressure in advertising presentations to children. 1. Advertisements should not suggest that a parent or adult who purchases a product or service for a child is better, more intelligent or more generous than one who does not. Advertising directed toward children should not create a sense of urgency or exclusivity, for example, by using words like "now" and "only." 2. Benefits attributed to the product or service should be inherent in its use.... Advertisements should not imply that purchase and use of a product would confer upon the user the prestige, skills or other special qualities of characters appearing in advertising. Disclosures and Disclaimers 1. All disclosures and disclaimers that are material to a child should be in language understandable by the child audience, legible and prominent. When technology permits, both audio and video disclosures are encouraged, as is the use of demonstrative disclosures. Comparative Claims Advertising which compares the advertised product to another product may be difficult for young children to understand and evaluate. Comparative claims should be based on real product advantages that are understandable to the child audience. 1. Comparative advertising should provide factual information. Comparisons should not falsely represent other products or previous versions of the same product. 2. Comparative claims should be presented in ways that children understand clearly. 3. Comparative claims should be supported by appropriate and adequate substantiation. Endorsement and Promotion by Program or Editorial Characters Studies have shown that the mere appearance of a character with a product can significantly alter a child's perception of the product. Advertising presentations by program/editorial characters may hamper a young child's ability to distinguish between program/editorial content and advertising. 3. Program personalities, live or animated, should not be used to sell products, premiums or services in or adjacent to programs primarily directed to children in which the same personality or characters appear. 4. Products derived from or associated with program content primarily directed to children should not be advertised during or adjacent to that program. Other sections of the Guidelines, such as Kids' Clubs and Premiums, Promotions and Sweepstakes also apply to food advertising. All of these sections of the Guidelines are an overlay on CARU's responsibility, i.e., to ensure that advertising to children is truthful, accurate, not misleading, and does not omit material facts. A cardinal rule of advertising law is that although a claim may be literally true, the context in which it is presented may still cause it to be misleading to consumers. Advertisers must be especially sensitive to this rule when advertising to children. CARU believes that its current Guidelines, as illustrated by the cases cited in this White Paper, adequately address the advertising of food to children. NAD The National Advertising Division (NAD) of the Council of Better Business Bureaus is the investigative arm charged with monitoring and evaluating truth and accuracy in national advertising directed towards consumers age 12 and over. The majority of NAD cases today come from competitive challenges, but advertising review proceedings can also be commenced based on complaints from local Better Business Bureaus, individual consumers or consumer groups. Cases also arise from NAD's routine monitoring of advertising and promotion in all media. NAD's mission is to ensure the integrity of advertising by monitoring and reviewing national advertising for truthfulness and accuracy. Over the past 32 years NAD has handled over 750 advertising review proceedings involving food, health, nutrition and weight loss claims. NAD's decisions in these cases have provided consistent and timely guidance to the food industry as the regulatory and legal landscape has changed over the years. The 1970s: Consumer advocates test the legitimacy of the self-regulatory forum by bringing numerous cases challenging a wide variety of advertising claims including health claims for vitamins, nutrition claims for sugar, calcium claims for low fat milk and weight loss claims for slimming gloves. The balance of NAD's caseload in the 1970's is composed of cases brought through NAD's own monitoring efforts, including the review of advertisements for foods such as peanut butter, raisins and wheat germ promising health benefits, and other products and services making weight loss, "low cholesterol" and "low fat" claims. NAD's early decisions establish that NAD will apply traditional advertising law standards when reviewing advertisements and require that advertisers adequately disclose material information and not overstate nutritional and health benefits or make unsubstantiated "weight loss" promises. In 1979 the FTC issues a policy statement embracing comparative advertising as pro-competitive and pro-consumer. With its issuance, "Brand X" advertising takes its place in the annals of advertising history and a new chapter opens for the advertising industry and its self-regulatory forum. The 1980s: Comparative advertising comes into vogue and although consumer activists continue to file challenges and NAD continues its monitoring efforts, a growing number of the food and nutrition cases brought before NAD are commenced by competitors. Competitors challenge advertisements comparing the nutritional content of competing food products including fish sticks (calorie and protein content), jelly (sugar content) and baby food (chemically modified versus "natural" starch). Pursuant to its monitoring efforts, NAD reviews nutrition claims for foods including bread, avocados and frozen dinners, as well as foods promising specific health benefits such as "helps control blood pressure" and "better for people with high blood pressure or heart disease..." The 1990s: Congress passes the Nutrition Labeling and Education Act (NLEA), which changes the existing rules for food packaging and labeling to provide consumers with new and consistent information about the nutrition and health benefits of the foods they eat. NAD in reviewing NLEA regulated claims for food products such as "fresh" and "cholesterol free" seeks to harmonize its efforts with the framework developed by Congress, the FDA and the FTC. NAD carves out safe harbors for a new and growing food category through its review of numerous direct-to-consumer advertisements for infant formula products that compare the nutritional benefits of infant formulas to competing products and to breast milk. Acknowledging the growing consumer interest in diet and health, industry responds by increasing nutritional information in food advertising. This serves as a catalyst for an NAD conference on health claims where experts discuss the underlying science, the new regulations and responsible marketing practices. Competitors challenge comparative nutrition claims for cereal products, cooking oil, fruit sweetened jams and meal replacement bars. NAD focuses its monitoring efforts on health claims, reviewing an increasing number of advertisements for weight loss products including shoe inserts, appetite suppressants and dietary supplements. The 21st Century: NAD hosts a two-day conference in March 2002 entitled "Health Claims in Advertising: From Foods to Pharmaceuticals" encouraging additional dialogue between industry, regulators and consumers to explore the legal challenges posed by the rapidly expanding arena of health claims in advertising. NAD's jurisdiction to review direct-to-consumer prescription drug advertisements is affirmed by the NARB. In addition, NAD reviews a growing number of problematic claims for dietary supplements and herbal products which, despite the passage of the Dietary Supplement Health and Education Act of 1994 (DSHEA), have begun to make extraordinary efficacy claims with little or no scientific evidence as support. NAD currently focuses most of its monitoring efforts on weight loss claims for foods, dietary supplements, meal replacements and weight loss programs to ensure that the playing field remains level and that consumers receive truthful and accurate information regarding the health benefits and weight loss capabilities of the products on the market. Since the 1970's NAD's historic record demonstrates that it has consistently met issues, including those relating to food advertising. Each decade, it has encountered a significant public policy issue that is reflective in advertising. Each raised new concerns and each was met successfully.

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