August 12, 2005 

Donald S. Clark
Federal Trade Commission
Office of the Secretary
Room 159-H (Annex H)
600 Pennsylvania Avenue, NW
Washington, DC 20580 

Re: Food Marketing to Kids Workshop—Comment, Project No. P034519
(Second set of comments submitted)

Dear Mr. Clark: 

The Center for Informed Food Choices (CIFC) is submitting the following second set of comments on the “Food Marketing to Kids Workshop.” CIFC was formed in 2000 as a non-profit, 501(c)(3) organization whose mission is to advocate for eating more whole, plant-based foods, and to educate about the politics of food. CIFC publishes Informed Eating, a monthly email newsletter that monitors the food industry and tracks nutrition policy at both the federal and state levels.

CIFC wishes to comment in three areas as a follow-up to the meeting: one, on the process by which the workshop was conducted; two, to correct several misleading and deceptive statements made by a few of the panelists; and three, make recommendations for next steps for further action.

The Workshop Process was Biased in Favor of Corporate Interests

There were several ways that the process by which the workshop unfolded resulted in corporate interests taking precedent over children’s health. First and foremost, the panelists were extremely biased in favor of industry. An analysis conducted by my organization revealed that a full two-thirds of the panelists had financial ties to either the food or advertising industries. In addition, executives from Kraft and PepsiCo were each given two separate opportunities to speak, an honor not bestowed on anyone else. Thus, the deck was stacked, and even if there were one or two voices of advocates, they were often drowned out.

Another effect of the panels being so biased was that instead of the meeting being about how junk food ads aimed at children should be curtailed, the event turned into a public relations opportunity for companies to talk about how great a job they are doing promoting “healthier” foods to kids. Indeed, the entire first day was wasted with such talk. That’s not what the Institute of Medicine had in mind.

Specifically, the IOM called on the government to “convene a national conference to develop guidelines for the advertising and marketing of food and beverages directed at children.” They also recommended that “the Federal Trade Commission have the authority and resources to monitor compliance with food and beverage advertising practices.” None of this was even remotely discussed at the workshop. Therefore, the federal government has not fulfilled its obligation to adequately respond to the IOM recommendations. When will this happen? 

Next, there was precious little opportunity for public participation. Questions from the audience were tightly controlled by government officials, pre-screened by moderators and there was never enough time for the public’s questions. Too much time was wasted with softball questions from government moderators. Moreover, only in response to pressure from advocates did the FTC alter the agenda at the last minute to include a brief “open forum.” This was not made known to the public prior to the event. As a result, only three people signed up. If the public had known beforehand, they might have actually come with prepared statements. And on the first day, the forum was scheduled at 5:30, after all the reporters and most attendees had already left. This was not handled well and left the impression that the government was not interested in hearing from the public.

Finally, the deadline extensions for these comments and the release of the transcript of the proceedings was not handled well either. Originally, the comment deadline was June 9, and many people were unable to file comments. Next, on June 14, the comment deadline was extended to July 29, after the meeting, but many people didn’t learn about that extension. I was told at the meeting on July 15 by an FTC staffer that the transcript of the proceedings would be posted within about a week, which I was counting on, to be able to file these additional comments. When the transcript was still not available just days before the July 29 deadline, I asked the FTC when we could expect the transcript given the impending deadline. I was told via email that the deadline would be extended until August 12 and that the transcript would be up the following week, but that didn’t happen. Finally, the transcript was made available late in the day, Wednesday, August 10, leaving people roughly two days to wade through 500 pages to comment upon if they even knew about the new August 12 deadline. All of this speaks to the federal government’s lack of consideration for giving the general public a full opportunity to participate in this process.

Corporate Panelists Made Numerous Misleading Statements

Several panelists representing corporate interests made misleading statements. We wish to correct the record. This is not meant to be an exhaustive list, but rather just a sampling.

Coca-Cola’s Deceptive Statements about Their School Policy

Abigail Rodgers, of Coca-Cola made the following remarks:

“In elementary schools, we do not sell carbonated soft drinks. In middle schools and high schools, over half of what we sell are zero-calorie beverages and non-carbonated beverages.” (See transcript, day one, at p.151.)

First of all, a survey of Kentucky schools revealed that soda is sold in 44 percent of elementary schools. And Coca-Cola was a powerful lobbying force against four legislative attempts to pass a state bill to get soda out of schools, including elementary schools. (Interview with Carolyn Dennis, 03/13/05.) But Ms. Rodgers forgot to mention this and other state bills Coca-Cola has helped kill or weaken, including those in California, New Mexico, Arizona, Connecticut, Indiana and Oregon, as described in our first set of comments submitted on June 9.

Next, a 2004 survey conducted by Center for Science in the Public Interest of 1,420 vending machines in 251 schools in 24 states, grades 7-12, found that 70 percent of the options were sugary drinks such as soda, juice drinks (with less than 50 per cent juice), iced tea, and sports drinks. Moreover, 86 percent of the soda was regular and only 14 percent of the sodas were diet. (“Dispensing Junk,” available at:, p.8)

Ms, Rodgers’ statement was obviously meant to convey the impression that Coca-Cola sells mostly healthy products in middle and high schools. However, CSPI’s data at the makes her statement highly suspect. In addition, just because a beverage is “zero-calorie” or “non-carbonated,’ that does not automatically make it healthy. Many of Coca-Cola’s “fruit drinks,” for example, are still very high in sugar and many others contain artificial sweeteners that bear no resemblance whatsoever to actual fruit.

Next, Ms. Rodgers made the following statement:

“We believe the classroom should be commercial free. Hence programs like Live-It are not branded programs.” (See transcript, day one, at p.151)

The first statement is quite laughable, given how many schools that Coca-Cola has formed exclusive “pouring rights” contracts with to sell its products. Does Coca-Cola mean just within the four walls of the classroom, but as soon as a child steps into the hallway, and is bombarded with corporate logos for Coke and Sprite on vending machines, all bets are off?

Coca-Cola likes to tout how its physical education programs are “non-branded,” which presumably just means that no sodas are actually sold through them. But that doesn’t mean that the Coca-Cola name isn’t associated with them. Indeed on the flyer that the company made available to participants at the meeting, right at the bottom is the bright red “The Coca-Cola Company” logo. It’s a joke to talk about any program as “unbranded” where a company is clearly trying to associate its name with “doing good.” Also, see our first set of comments filed on June 9 for why it’s completely inappropriate for corporations such as Coca-Cola to be providing health education materials in schools under any circumstances.

Next, Ms. Rodgers made this statement:

“We also have a policy of not advertising carbonated soft drinks to kids and we’ve had that policy for over 50 years.” (See transcript, day one, at p.151)

First of all, how is it that selling soft drinks to kids in schools is not construed as advertising? Are we to believe that Coca-Cola really has children’s best interests at heart (which is the obvious intention by making such a statement) when the company is selling its sugary soft drinks in schools all over the country?

Secondly, as noted in our first set of comments, this “policy” is frequently broken, for example, through selling toys (such as checker sets) to young children with the Coke logo and by product placement, such as on American Idol, a top-rated TV program for children aged 2-11. In addition, Coke’s sponsorship of films such as the Harry Potter series is clearly designed to reach young children.

Next, Ms. Rodgers made this statement:

“Our data, because we’ve tried to understand what the consumption habits are of full-calorie soft drinks in schools, our data tells us that in high schools, kids are consuming a couple of ounces a day on average. So it is not the kind of extremes that we sometimes think it might be.” (See transcript, day one, at p.196)

First of all, we are given no citation of the source of this data, so there is really no way to even verify it. Next, other research seems to defy this implication that high school kids are drinking little soda; for example, according to the Center for Science in the Public Interest: “Teenagers get 13 percent of their calories from carbonated and noncarbonated soft drinks.” And, “Soda pop provides the average 12 to 19-year-old boy with about 15 teaspoons of refined sugars a day and the average girl with about 10 teaspoons a day.” (Liquid Candy, available at:

Finally, Ms. Rodgers made this statement:

“Vending machines are turned off, in many cases, during the school day, but in all cases, because of regulation, in and around meal times.” (See transcript, day one, at p.196)

The vague phrase “in many cases” cannot be verified, but anyone who works in a school will tell you that soda machines are in fact almost never turned off during the school day. The second part of this statement is also false. Rodgers is referring to a U.S. Department of Agriculture regulation that says soda may not be sold during meal times. But in fact the rule says that soda may not be sold in food service areas. (7 C.F.R. 210.11(b)) There is no restriction for sodas sold anywhere else on school grounds, so Ms. Rodgers was giving the false impression that no sodas are sold around meal times when the reality is that kids simply purchase their sodas from the hallway vending machines and bring them into the cafeteria, or from vending machines in the cafeteria just before meal time and save them to have with lunch. In addition, as many teachers and food service staff will attest, this rule is frequently broken, with soda vending contractors turning a blind eye. Finally, the regulation only applies in public schools participating in the National School Meal Program, while Rodgers gave the impression that the rule applies in all schools everywhere.

McDonald’s Misleading Statements on Nutrition Labeling

Michael Donahue, of McDonald’s U.S.A, made the following statement:

“Starting over 30 years ago, we started with the first nutritional brochures and helped lead the industry so that all of our competitors and others would do the same.” (See transcript, day one, at p.154)

While we don’t doubt the veracity of McDonald’s having first created nutrition brochures 30 years ago (mainly because we cannot verify it), we do object to the impression this is meant to convey: that the company actually cares about sharing nutrition information with customers, when nothing could be further from the truth. For the past several years, consumer groups such as the Center for Science in the Public Interest have been calling on “industry leaders” such as McDonald’s to provide nutrition information, not in a brochure or a website where nobody ever sees it, but rather right at the point of purchase: on their menu boards, where all other relevant information is posted for customers. Yet McDonald’s has vigorously resisted any such change in its policy. Also McDonald’s and all of its thousands of franchises are members of the National Restaurant Association (NRA), a powerful lobbying group that is fighting against both national and state legislation to require such nutrition labeling on menus and menu boards in chain restaurants. (See the NRA’s own website:

McDonald’s Targets Schools Despite Claims to the Contrary

Mr. Donahue also made the following statement:

“There is a lot of controversy about the industry and working with the schools. Ironically, it’s often the schools that approach us first, and they’re so strapped for resources and alternative programs for physical education and other things. It doesn’t mean that we are not talking about the menu choice and other issues, but it does mean that we have to talk and work with these schools.” (See transcript, day one, at p.185)

We highly doubt that it’s “often” that schools approach McDonald’s, as opposed to the other way around, but this information is also impossible to verify. Even if it were true, why would it mean that the company must “talk and work with these schools?” If McDonald’s really cared about children’s health, even if a school came to them, why couldn’t they just say, “No, we are not going into schools because our food should really be aimed at parents at the right times and places, like when and where parents have more control over what their children eat. Targeting schoolchildren, who are a captive audience, with cheeseburgers and French fries is just not our policy.” They couldn’t say that because it would not be good business. But it’s not because, as Mr. Donahue would have us believe, McDonald’s is trying to help schools out of financial trouble.

Also, if schools are the ones approaching McDonald’s, what about the company’s “fundraising” program called “McTeacher’s Night” that it promotes so heavily to schools? The way this works is that teachers volunteer to work behind the counter for a few hours at an area McDonald’s and the company donates just 20 percent of the proceeds to the school. The result is heavy promotion of McDonald’s food, as students and their parents are encouraged and expected to dine there that evening (for the school’s sake of course). Not to mention what kind of message does this sends to children to have the adults they look up to all day long working behind the counter, often in direct conflict with the nutrition education they receive in the classroom? In many cities, the program has been controversial and teachers have resisted participation. For example, in San Francisco in 2002, several elementary school teachers had this to say about the program: (San Francisco Chronicle, 10/15/02, available at:

        "We will be endorsing a product that contributes to the epidemic of childhood obesity and heart disease.”

        "This is exploiting teachers for a real, live McDonald's commercial."

        It's demeaning."

As recently as last year, McDonald’s approached the Evergreen School District in Vancouver, WA with this program. Rafaela Steen, an employee of the district was not happy about the idea and expressed her concerns to the elementary school principal who was considering having his school participate. (The school ultimately decided against the idea.) She said: “It seems like such a manipulative way for McDonald's to appear to be helping schools while at the same time indoctrinating young children and families about McDonald's and all that they represent. Who doesn't look up to their teachers in some way, and to see them behind the counter enthusiastically supporting McDonald's both verbally and nonverbally is quite scary.” (Interview conducted 8/11/05.)

What a great deal for the company to get adults to volunteer to work for them, in exchange for some paltry donation. This is an obvious PR stunt. If McDonald’s truly cared about schools, why can’t they just donate the money outright?

General Mills Whole Grain Deception

We heard quiet a bit from Kendall Powell of General Mills about how the company has “reformulated” all of its cereals to contain whole grain. He said: 

“General Mills’ whole grain initiative will provide 26 million servings of whole grain per day across the country and kids in America are going to get 12 million servings of whole grains thanks to these products.” (See transcript, day one, at p.146)

Such a statement is obviously meant to sound impressive from a public health perspective. The average person hearing that (like a reporter) might think, “Wow, General Mills is really being a responsible corporate citizen by providing Americans with all that healthy whole grain in their cereals.” But if you take a closer look, the statement becomes less impressive and downright deceptive.

First of all what does it mean that General Mills is “providing” children with 12 million servings of whole grain per day? Presumably that figure is based on General Mills’ projected sales, but it would be impossible for any health researcher to verify the data. Next, that statement leaves out any consideration for the nutrition in the rest of the cereal contents. General Mills likes to talk mostly about their Cheerios brands. But what they failed to talk about at the meeting is how General Mills also sells the following cereals aimed at children, all with the laughable “whole grain” label: Reece’s Puffs, Cookie Crisps, Cocoa Puffs, Lucky Charms, and Chocolate Lucky Charms.

We heard from Kendall Powell that “obesity is about calories and cereal is a low-calorie way to start the day.” (See transcript at p.145) But nutrition isn’t only about calories; it’s also about the actual nutrients (or lack thereof) in the food. Let’s take Cocoa Puffs as an example. According to Marion Nestle, author of Food Politics, “each serving contains 26 grams of carbohydrate of which 13 come from sugars, 1 gram of protein, and 1 gram of fiber, for 120 calories, the equivalent of a small cookie. The net benefit is one gram of fiber is not much benefit, it seems to me.” (Interview conducted 8/11/05)

General Mills “Choose Breakfast” Campaign Flouts CARU Guidelines

Furthermore, for General Mills to present itself at this meeting as a responsible corporate citizen that cares about children flies in the face of their recently announced campaign called “Choose Breakfast,” which clearly violates children’s advertising guidelines. On June 22, General Mills announced the new children's television advertising campaign in order to "communicate the benefits of breakfast to children." ( While General Mills attempts to cloak the campaign with public service respectability by dubbing it "non-branded," the 10-second spots are paired with 20-second spots for the company's kid-oriented cereals including Lucky Charms, Cocoa Puffs and Trix. Adding bang to its buck, the company's popular mascots such as the Trix rabbit and Lucky Charms leprechaun will tout physical activity on cereal boxes, presumably to work off all that sugar.

According to guidelines from the Children's Advertising Review Unit, ads are not supposed to appeal to a kid's sense of fantasy, for example, where a bowlful of cereal transforms a child into a super-strong, super-smart, superhero. Yet all three of the General Mills spots depict that exact scenario: a young girl suggests eating breakfast as the key to escape danger with lightening speed in contrast to a sluggish non-breakfast eater; a young boy outruns and outmaneuvers an adult thief and credits his breakfast; and another young boy prepares to enter a boxing ring to face a menacing adult opponent - but only after eating his breakfast. Not coincidentally, all three spots depict breakfast as including a nice big bowl of cereal.

With these spots being shown just prior to commercials for the likes of Cocoa

Puffs, it doesn't take a great leap of logic to assume that kids will associate these behaviors with eating cereal - and not just any cereal, but General Mills brands. How can children possibly be expected to distinguish between a Trix commercial and the supposed public service plug?

Ellen Fried, who teaches food law at New York University, says that CARU should have taken swift action to banish the ads, "but instead, they joined hands with General Mills by anointing their campaign. The company deftly sought pre-approval and got even more." Indeed, CARU director Elizabeth Lascoutx had nothing but praise for General Mills, quoted here in the company's press release: "Ensuring that positive, non-branded health messages like Choose Breakfast are being delivered to children is not only responsible, but commendable." (General Mills’ News Release, 06/22/05, available at:

Fried explains: "Either she didn't see the ads, didn't know they were being corrupted by General Mills branded spots or isn't adequately applying the guidelines of the agency she directs, none of which is acceptable for an organization charged with protecting our children from unscrupulous advertisers." (Interview conducted 8/11/05) This cooperative effort between the regulator and the regulated should be evidence enough of the utter failure of self-regulation.

Children Advertising Review Unit’s Misleading “Compliance Rate”

In her remarks, CARU’s director, Elizabeth Lascoutx made much ado about CARU’s 97% “compliance rate,” giving the false impression that self-regulation was a big success. (See transcript, day two, at p.39) Speaking of a compliance rate conveys the idea that the industry is in compliance with CARU’s guidelines 97 percent of the time. But that is not at all what Ms. Lascoutx meant. She also said, more specifically: “We have a compliance rate of 97 percent when we ask for modification.” (See transcript, day two, at p.39.) This is very different than the impression the average person (like a reporter) would take away from just saying “compliance rate.” All this means is that when CARU even bothers to take up a case, the companies complies 97% of the time.

The other problem with this figure is that it is completely unverifiable. We really have no idea what it’s based on. For example, what are the criteria for determining what exactly is considered complying with a request for modification? Sometimes, a company says its ad campaign has already run its course; does this count? It would be impossible for any researcher to duplicate these results, the true hallmark of any scientific data.

Ms. Lascoutx also claimed that “we don’t miss a thing.” (See transcript, day two, at p.39) How she can claim that her six-person shop effectively monitors all the ways that children are bombarded with marketing these days (let alone food ads) is mind-boggling. CARU cannot possibly catch all the numerous ways that food companies routinely violate their guidelines. (See our first set of comments submitted on June 9 for just a few examples of violations.) Also, what proportion of these cases was for food companies and is there any difference in “compliance” from them? It was not at all clear from her remarks. The bottom line is that to speak of a “97% compliance rate” is completely meaningless and therefore intended to mislead the audience and deflect government action.

Grocery Manufacturers Association’s Disingenuous Recommendations

Finally, we heard much at the conference regarding the Grocery Manufacturers Association’s so-called recommendations to strengthen CARU. GMA was simply using this event as an opportunity to gain positive PR for itself and its members. First of all, news of the proposal was made available to the press just prior to the event. The Wall Street Journal ran a story about it the day before the meeting, before any advocates could respond. Next, several members of the food industry strategically referenced the proposal before GMA took its turn in formally presenting it on the second day. Thus the public was given the distinct impression that food companies were sincere in their concern about the issue and were at-the-ready to strengthen the self-regulatory system.

And yet, numerous questions remain about GMA’s sincerity. First of all, their statement only represents a tiny fraction of the trade association’s membership - 9 out of 140 companies, or a little more than 6 percent. According to GMA, “The statement was issued on behalf of Campbell Soup Company; General Mills, Inc.; The Hershey Company; Kellogg Company; Kraft Foods Inc.; Nestl USA; PepsiCo, Inc.; Sara Lee Corporation; and Unilever United States, Inc.” (GMA Statement Regarding Proposals to Strengthen Self-Regulation of Children’s Advertising,” July 15, 2005, available at:

How can a statement that only represents 9 companies speak for the industry’s largest and most powerful trade association? Where do the other 131 companies stand on the matter? These members include such companies as Coca-Cola, Cadbury Schweppes, and Mars, whose products are very much aimed at children, especially in schools. It’s quite deceptive for GMA to present itself as speaking for an entire industry, even if those 9 companies are among the “industry leaders.”

Next, GMA’s recommendations for improving CARU include the following: “Expand CARU’s guidelines to address advertising contained in commercial computer games, video games and interactive websites.” This is great, but if GMA really wants CARU to expand its scope, how about recommending that schools also be included as part of its jurisdiction? Right now, CARU does nothing about in-school promotions such as fundraisers at McDonald’s or Chuck E. Cheese's restaurants or contests sponsored by candy companies to raise money for schools. (See Washington Post, February 27, 2005.) What about ads children see on Channel One, which is widely viewed in schools? Also, why isn’t the selling of products in schools considered a form of promotion under CARU’s purview? GMA needs to include all forms of marketing to children in its proposal if we are to believe that they are serious.

Next, GMA failed to disclose that it’s on record opposing even the most nominal efforts by state governments to improve self-regulation. For example, GMA sent a letter to the California legislature in opposition to a joint resolution - meaning that it was voluntary, without the force of law - asking the industry to simply adhere to a voluntary code of practice with respect to food and beverage advertising. (GMA Letter in Opposition to California Advertising Resolution, April 29, 2004, available at:

Finally, GMA is on record opposing virtually every piece of federal or state legislation that would restrict the sale of unhealthy food and beverages in schools. (Please see our first set of comments filed on June 9 for more on this topic.) That the food industry is so vehemently opposed to improving the nutritional status of our nation’s schools should be evidence enough of how they place their own profits above children’s health.

The Myth of the First Amendment as a Barrier to Regulation

Another statement that we heard many times at the meeting needs to be corrected: That the First Amendment serves as an impenetrable barrier to the federal government’s ability to restrict food advertising aimed at children. Sadly, this myth was perpetuated both by industry executives, who have an obvious vested interest in doing so, but also by government officials, who are simply politically disinclined from taking any regulatory action that would rattle corporate cages.

First of all, the effort undertaken by the FTC in the late 1970s to address junk food marketing aimed at children was not derailed because of First Amendment concerns, (contrary to popular belief at this meeting) but rather because the food and advertising industries interceded by lobbying Congress with a vengeance, who then in turn threatened to shut down the agency unless it backed away from the effort; so they did.

Next, the commercial speech doctrine, which applies to corporate advertising, is a lower standard than that of general free speech as applied to individuals. Restrictions on ads can be constitutional, as long as they meet the three-part legal test known as “Central Hudson,” after the case in which the doctrine was first defined. Therefore, the question of constitutionality of any government regulation in this area is subject to interpretation, not black and white self-serving conclusions. Instead of perpetuating the myth of the First Amendment is a barrier to justify their inaction, the government should have convened a panel of legal experts to opine on the matter. That certainly would have been much more interesting and useful. Finally, numerous other countries have restrictions on food marketing aimed at children that do not run afoul of their free speech rules. Examples include Quebec, Sweden, and Norway. Why weren’t any representatives from these and other forward-thinking nations asked to speak on this topic? We could and should learn from them. To explore such issues, we are co-sponsoring a symposium with Loyola Law School called “Food Marketing to Children and the Law” to be held on October 21. We welcome your participation in that event.

Conclusion: the Food and Advertising Industries Cannot be Trusted

It’s clear that food companies cannot be trusted in general, and certainly not to self-regulate when it comes to marketing to children. Their statements reflect willingness to change only insofar as public relations will guide them. When it comes to corporate promises of change, it’s all talk and no action. Do not allow the posturing by food industry executives at this event to overshadow the very really need for government action. Please do not allow children’s interests to be trumped by corporate profit.

Recommended Next Steps for Further Action

We hope that this dialogue does not end here, because frankly, very little of any substance was accomplished by this meeting. We recommend that at a minimum, the federal government:

Thank you for the opportunity to present these comments and for your interest in this important issue. We look forward to ongoing participation in the dialogue.




Michele Simon, JD, MPH
Director, Center for Informed Food Choices