Archive for the ‘Food/Beverage Marketing’ Category
PHAI’s Gottlieb and Wilking Co-author study in JAMA Pediatrics Showing that Fast Food Giants Confuse and Deceive Kids
Monday, March 31st, 2014
After much criticism and prodding, Fast food giants McDonald’s and Burger King agreed to depict healthier food options in advertising directed at children. Researchers at the Norris Cotton Cancer Center at Dartmouth-Hitchcock, along with the Public Health Advocacy Institute (PHAI) at Northeastern University School of Law, found that attempts to honor these pledges by depicting healthier kids’ meals frequently go unnoticed by children ages 3 to 7 years-old. In research published on March 31, 2014 in JAMA Pediatrics, these researchers found that one-half to one-third of children did not identify milk when shown McDonald’s and Burger King children’s advertising images depicting that product. Sliced apples in Burger King’s ads were identified as apples by only 10 percent of young viewers; instead most believed that the ads were depicting french fries.
Children in the study were confused by the images of food. One typical participant said, “And I see some…are those apples slices?”
The researcher replied, “I can’t tell you…you just have to say what you think they are.”
“I think they’re french fries,” the child responded.
“Burger King’s depiction of apple slices as ‘Fresh Apple Fries’ was misleading to children in the target age range,” said principal investigator James Sargent, MD, co-director Cancer Control Research Program at Norris Cotton Cancer Center. “The advertisement would be deceptive by industry standards, yet their self-regulation bodies took no action to address the misleading depiction.”
Mark Gottlieb, Executive Director of PHAI and an author of the study, observed that, “when young children believe they will be getting french fries with their meals because of deceptive or confusing advertising imagery, they may insist that the adult bringing them orders french fries instead of apple slices. Likewise, if advertising leads children to expect a sugary drink rather than milk, they may well end up getting the sugary drink. This has the effect of undermining the self-regulatory pledges that the companies made.”
Study author and PHAI Senior Staff Attorney Cara Wilking said she found it, “troubling that fast food giants would publicly make a self-regulatory pledge, fail to live up to the pledge, and receive no sanction from the relevant self-regulatory body. Such failures suggests that self-regulation is often more about public relations than about fulfilling the role of actual governmental regulation.”
Sargent and his colleagues studied fast food television ads aimed at children from July 2010 through June 2011. In this study researchers extracted “freeze frames” of Kids Meals shown in TV ads that appeared on Cartoon Network, Nickelodeon, and other children’s cable networks. Of the four healthy food depictions studied, only McDonald’s presentation of apple slices was recognized as an apple product by a large majority of the target audience, regardless of age. Researchers found that the other three presentations represented poor communication.
This study follows an earlier investigation conducted by Sargent and his colleagues, which found that McDonald’s and Burger King children’s advertising emphasized giveaways like toys or box office movie tie-ins to develop children’s brand awareness for fast food chains, despite self-imposed guidelines that discourage the practice.
While the Food and Drug Administration and the Federal Trade Commission play important regulatory roles in food labeling and marketing, the Better Business Bureau operates a self-regulatory system for children’s advertising. Two different programs offer guidelines to keep children’s advertising focused on the food, not toys, and, more specifically, on foods with nutritional value.
“The fast food industry spends somewhere between $100 to 200 million dollars a year on advertising to children, ads that aim to develop brand awareness and preferences in children who can’t even read or write, much less think critically about what is being presented.” said Sargent.
Bernhardt AM, Wilking C, Gottlieb M, Emond J, Sargent JD. Children’s Reaction to Depictions of Healthy Foods in Fast-Food Television Advertisements. JAMA Pediatr.2014;():. doi:10.1001/jamapediatrics.2014.140.
This study was funded by the Robert Wood Johnson Foundation’s Healthy Eating Research program.
Wednesday, January 29th, 2014
PHAI Senior Staff Attorney Cara Wilking’s article, State Law Approaches to Curtail Digital Food Marketing Tactics Targeting Young Children, has been published in the January/February, 2014 issue of the Food and Drug Law Institute’s Update Magazine. In the article, Wilking describes why digital marketing, which is inherently deceptive to younger children. She explains the role of packaging, “advergames,” and digital sweepstakes in digital marketing.
Wilking concludes that these practices may trigger specific consumer protection law provisions and case law precedent around unfair and deceptive trade practices and looks to state attorney generals to take steps to stop these practices.
Thursday, December 19th, 2013
December 19, 2013
The Public Health Advocacy Institute (PHAI) at Northeastern University School of Law, along with our partners at the Center for Digital Democracy and Berkeley Media Studies Group, today releases State Law Approaches to Address Digital Food Marketing to Youth. It is a first-of-its kind resource that provides an evidence base and action steps grounded in state law. State attorneys general and other stakeholders in children’s health and privacy can use it to put a stop to troubling digital marketing practices that deceive youth and their parents.
In addition to clear explanations of how digital marketing works and why it poses privacy and health risks to youth, key legal issues for state regulators are explored. These issues include personal jurisdiction over out-of-state food and beverage marketing and media companies; the interplay of federal and state laws regulating mobile marketing; and the application of state promotions laws to child consumers.
Key findings include:
- Research demonstrates that digital marketing is harder for children to identify than traditional television advertising, heightening the need for regulatory oversight.
- Nickelodeon, the biggest source of food ads seen by youth, has augmented its media empire through websites, mobile apps and programming that imports content from a popular YouTube channel. All of its digital platforms are ad-supported creating new opportunities for food and beverage companies to target youth.
- Digital campaigns are seamlessly woven into food packaging allowing marketers to target youth in supermarkets, convenience stores and fast food restaurants. Packaging often directs youth to digital marketing on mobile devices or online. State regulators have jurisdiction over unfair and deceptive marketing on food packages sold to consumers in their states.
- Mobile marketing elements are integrated into food and beverage campaigns. The legal landscape for state oversight of mobile marketing includes federal and state SPAM and telemarketing laws, and the emerging regulation of geolocation tactics.
- States are authorized to protect child privacy under federal law and have successfully done so, but teens are not covered by child privacy laws. State attorneys general can fill the teen privacy gap using their general consumer protection authority to ensure that company promises to protect privacy are honored and that teens are not duped into sharing personal information.
- Facebook remains the dominant social media platform for teens. Teens growing use of social media has resulted in them being less privacy savvy. Food companies exploit this by prompting teens to login to their websites and participate in promotions via Facebook thereby granting marketers access to vast amounts of personal information.
- Digital sweepstakes and contests are in widespread use by the food industry with children as young as 6 years old. Despite repeated enforcement actions by the Children’s Advertising Review Unit (a self-regulatory body); food companies continue to conduct digital promotions with children that exploit their inability to understand that a free means of entry exists or their odds of winning a prize. State attorney general action is needed to augment these self-regulatory efforts to protect children from predatory promotions.
Senior Staff Attorney, Cara Wilking, who was lead author of the report, noted that, “state attorneys general are in a unique position to leverage state law approaches to stop unfair, deceptive, or otherwise illegal digital marketing of unhealthy foods to our youngest and most vulnerable consumers.”
PHAI’s Executive Director, Mark Gottlieb, added, “there is a general failure to understand the disturbing marketing practices that are becoming commonplace in the digital marketing world. This report goes a long way toward closing the knowledge gap between those using powerful technology to sell junk to kids and those who have the responsibility to protect them.”
- Executive Summary
- Why Digital Marketing Is Different
- Packaging: Digital Marketing at the Moment of Truth
- Personal Jurisdiction
- Mobile Food & Beverage Marketing
- Facebook Advertising
- Incentives-Based Interactive Food & Beverage Marketing
- Appendix: State Law Profiles
Support for State Law Approaches to Address Digital Food Marketing to Youth was provided by the Robert Wood Johnson Foundations Healthy Eating Research Program (#69293).
Monday, October 21st, 2013
By Matthew Puder, Legal Intern
The commercial for Verizon’s NFL Mobile app begins with a noisy, crowded stadium and flashing camera lights. The quarterback calls out a play and makes offensive adjustments, and linebacker Clay Matthews counters by calling out his own defensive adjustment. The ball is hiked and handed off to the running back. Players run through a crowd of cheering fans on the field of play and then Clay Matthews lays a crushing tackle on the running back, jumps up, and flexes.
A voiceover comes on and states “Never be far from the game. Download NFL Mobile and watch live NFL games exclusively from Verizon. Never be without football.” During these few sentences the commercial cuts to a quick scene, about one-second in duration, of a man and a woman in a car. She leans from over him, from left to right, and shows him the live action football play that just unfolded on her mobile device.
To most, this one-second visual of the man and woman in the car would not evoke much thought. But when looked at in the context of Verizon’s corporate responsibility pledge to eliminate distracted driving, the innocuous clip becomes somewhat more concerning.
Verizon boasts to have taken the pledge to eliminate distracted driving by partnering with Sprint and T-Mobile to promote AT&T’s “It Can Wait” campaign. The essence of the campaign is to raise awareness of the dangers of distracted driving. It also advocates that drivers take the pledge to refrain from texting and driving so as to eliminate distracted driving, making the roadways a safer place for all who use them. Texting and driving is a major public health concern as the combination of the two creates a 23 fold increase in the chance of getting into an automobile accident.
In his blog post describing Verizon’s contribution to the campaign, Jack MaCartney, the Director of Corporate and Community Responsibility, acknowledges “Taking our eyes off the road, our hands off the wheel, to send or read a text, email, comment, post, tweet, is an unnecessary risk.” While Verizon’s efforts to call attention to the dangers of distracted driving are commendable, the commercial described above indicates that Verizon may not be as in touch with its distracted driving campaign as it claims to be.
Although the man and the woman in the one-second scene in the commercial appear to be in the back of a cab or a friend’s car that may not be readily apparent to the audience at first glance. The man is sitting in the position that a driver would normally be, and the woman in the position of the passenger. At a glance, the commercial seems to be advocating watching live football in the car in a way that would take the driver’s eyes off of the road. But, even assuming that the NFL live video was confined to the back seat, the temptation for the driver to look back to see a play or replay could also create an unnecessary distraction. AT&T, for example, has helped helped to vividly describe the consequences of inattention to the road in its commissioned film by noted directed Werner Herzog, “From One Second to the Next.”
The Verizon spot is reminiscent of a Beck’s Beer commercial that was cited and sanctioned by the FTC for violations of the FTC Act involving the combination of beer and sailing. The commercial depicted a number of passengers on the boat with a large bucked of ice containing bottles of Beck’s Beer. Almost all of the passengers held bottles of beer, with one passenger standing dangerously close the bowsprit, others sitting on the edge of the bow, and none of passengers wearing life jackets. The issue the FTC had with the commercial was that the advertisers depicted boating passengers as drinking Beck’s Beer while engaged in activities that require a high degree of alertness and coordination to avoid falling overboard.
In its complaint the FTC stated that as many as one-half of all boating fatalities are alcohol related, including an average of 60 recreational boat fatalities annually from falling overboard while drinking. Also it the its complaint, the FTC acknowledged that the company may be in violation of the Federal Trade Commission Act, the Beer Institute’s own Advertising Marketing Code, and federal and state boating safety laws. The After its investigation, the FTC concluded that Beck’s had violated the FTC Act with this advertisement and were sanctioned with strong oversight by the FTC of future advertisements involving alcoholic beverages and boats.
Verizon’s commercial is arguably similar to the sanctioned conduct of Beck’s Beer. Like the Becks commercial where it was only the passengers drinking while on the boat, the passengers in the car are engaging in activity that poses a public health hazard. The FTC did not make the distinction between passengers and driver in its citation of the Beck’s commercial. Additionally, like the Beck’s commercial, the NFL Mobile commercial promotes activity that is prohibited by law in many states, i.e. using mobile devices while driving. Verizon could have omitted the passengers being in the car and put them somewhere else where the passenger has a further removed from being the driver, such as in a bus or in the subway.
While Verizon most likely did not make the commercial with the intention of promoting unsafe behavior, the company was at best oblivious and at worst careless in its production of the commercial. Verizon should take care to ensure that all forms of media use while driving are eliminated, not just texting, as they all increase the risk of injury and death. The company should be more and aware and sensitive to the messages it promotes in its commercials concerning mobile media and the dangerous implications they may have.
Monday, October 7th, 2013
by Cara Wilking, J.D.
Since 2008, national advertising for McDonald’s Happy Meals has not depicted soda as per a self-regulatory pledge made to the Children’s Food and Beverage Advertising Initiative (CFBAI). In a recent pledge with the Clinton Global Initiative (CGI) and the Alliance for a Healthier Generation, McDonald’s stated that it will not display soda company logos in the children’s section of its restaurant menu boards or otherwise promote or feature soda, but soda will remain on the children’s menu. This seems to be a huge public admission that McDonald’s has no plans to actually take soda off of its children’s menu. Almost five years after McDonald’s began implementation of its CFBAI pledge its in-store children’s menu offerings still do not match the Happy Meal combinations it advertises to the public.
In July of 2011, I wrote about the fact that McDonald’s CFBAI pledge had not translated into its healthier options becoming its most popular or commonly sold options (a fact later confirmed by McDonald’s). At that time, meal combinations with french fries and a 12 oz. soda were the most popular Happy Meal combinations. Two years later, soda is still on the children’s menu. In order to truly improve the nutritional profile of the meals it actually sells, McDonald’s needs to do the same thing with beverages that it did with its french fries. Change the default. When a parent orders a Happy Meal the clerk should ask, “milk, apple juice or water.” Its CGI pledge does not accomplish that and evinces a potentially huge disconnect between what McDonald’s advertises and what it is actually selling to children and their parents.
Tuesday, September 17th, 2013
Michele Simon is a public health lawyer specializing in industry marketing and lobbying tactics. She is the author of Appetite for Profit: How the Food Industry Undermines Our Health and How to Fight Back, and president of Eat Drink Politics, an industry watchdog consulting business.
Ms. Simon asks PHAI’s senior staff attorney, Cara Wilking, about deceptive food marketing to kids, concerns about food industry self-regulation of marketing practices, technical assistance we provide, and what PHAI and lawyers like Cara can contribute to the good food movement.
Access the interview here.
Thursday, August 29th, 2013
In response to a recent study finding that nationally televised fast food television advertisements to children by McDonald’s and Burger King from 2009-2010 focused primarily on toys, movie tie-ins and branding, CARU Director Wayne Keeley stated that “[b]oth companies have always respected CARU’s recommendations by discontinuing the challenged ads, and pledged to take into account CARU’s recommendations in their future advertising,” and went on to note that there haven’t been any recent cases involving either of the two companies.
A look at CARU case reports tells a different story. Since 2005, McDonald’s Corporation has been cited by CARU six times for violations of its premium guideline. Just one of these cases, from Sept 2012, was decided in McDonald’s favor. The most recent CARU case against the company in December 2012 found the premium guideline had been violated. Each time McDonald’s pledged to take CARU guidelines into consideration in future advertisements. Burger King also was found to have violated CARU’s premium guideline in 2011.
New study finds McDonald’s and Burger King responsible for 99% of fast-food television ads for kids, suggests industry’s efforts to self-regulate its marketing practices are ineffective
Wednesday, August 28th, 2013
Fast-food companies emphasize toy giveaways and movie tie-ins rather than food products when marketing to kids on television, which suggests that industry is not abiding by its self-regulatory pledges for child-directed marketing, according to a study co-authored by the Geisel School of Medicine at Dartmouth and the Public Health Advocacy Institute at Northeastern University School of Law. The study, “How Television Fast Food Marketing Aimed at Children Compares with Adult Advertisements,” is published in PLOS ONE and found that among ads for children’s meals, toy giveaways appeared in 69 percent of ads and movie tie-ins were used in 55 percent of ads.
“Fast-food companies use free toys and popular movies to appeal to kids and their ads are much more focused on promotions, brands, and logos—not on the food,” said James Sargent, Professor of Pediatrics at the Geisel School of Medicine at Dartmouth and the lead author of the study. “These are techniques that the companies’ own self-regulatory body calls potentially misleading and it’s a clear sign that they’re not living up to their pledges about marketing to kids.”
Sargent and his colleagues examined all nationally televised ads for children’s meals by leading fast-food restaurants for one year, from July 1, 2009 to June 30, 2010. They compared ads for kids with ads for adults from the same companies to assess whether self-regulatory pledges for food marketing to children had been implemented.
Key findings include:
- Nearly all (99%) of the ads that aired during the study period were attributable to McDonald’s (70%) and Burger King (29%).
- McDonald’s had the strongest emphasis on the children’s market, with 40% of its 44,062 ads aimed at kids, compared to 21% of 37,210 aired ads for Burger King.
- Seventy-nine percent of the fast-food ads aimed at kids aired on only four channels: Cartoon Network (32.3%), Nickelodeon (18.3%), Disney XD (16.2%), and Nicktoons (12.4%).
- Compared with fast food ads for adults, kids ads emphasized branding and the food images were smaller. For example:
- Images of food packaging were present in 88 percent of ads directed at kids and 23 percent of ads for adults.
- A street view of the restaurant appeared in 41 percent of ads directed at kids and 12 percent of ads for adults.
- Food images averaged 20 percent of the screen diagonal in kids’ ads, but 45 percent of the screen diagonal in adult ads.
Leaders of the food and beverage industry have publicly recognized the need to reform marketing practices targeting children. In 2006, the Council of Better Business Bureaus launched the Children’s Food and Beverage Advertising Initiative (CFBAI), a voluntary pledge by major U.S. food manufacturers to advertise only healthier products to young children. McDonald’s and Burger King participate in the CFBAI. Both companies also have pledged to abide by marketing guidelines set by the Children’s Advertising Review Unit, which include a provision stating that food—not toys or other promotions—should be the primary focus of ads directed at kids.
“This study adds to a growing body of research suggesting that there’s a big gap between what industry has promised and what they’re actually doing when it comes to marketing to kids,” said Cara Wilking, J.D. of the Public Advocacy Institute at Northeastern University School of Law. “There comes a point when intervention by a regulatory body like the Federal Trade Commission or state Attorneys General is needed to address self-regulatory failures. These findings suggest we’ve reached it with respect to fast food marketing to kids.”
A recent report by the Federal Trade Commission found that among all U.S. food and beverage companies, fast-food companies spent the most on marketing directed at youths ages 2 to 17—more than $714 million in 2009. The report also found that fast-food companies have dramatically increased their spending on television ads and new media targeting kids ages 2 to 11. Further analysis of that report shows while some fast-food restaurants slightly improved the nutritional quality of kids’ meals, the number of child-directed television ads for other higher-calorie meals and menu items more than doubled from 2006 to 2009.
Tuesday, August 13th, 2013
by Cara Wilking, J.D., Rebecca Leff and Katelyn Blaney
The Ultimate Fighting Championship (UFC) has its roots in “cage-fighting” and was long considered too wild and violent for mainstream sports fans. Not long ago cage-fighting was shunned by parents, banned by states and rejected by broadcast networks and cable operators for its brutality. While cage-fighting remains outlawed in some states, it has been recast as mixed martial arts (MMA). UFC has successfully migrated from pay-per-view television to the Fox Television broadcast network. Despite the UFC’s efforts to rehabilitate its image, bouts are still held in an eight-sided cage (called the “octagon”) where fighters’ blood is commonly spilled. The UFC has an official energy drink called Xyience Energy. NOS energy drink (a Coca-Cola Company product) sponsors MMA champion Georges St-Pierre and has built an ad campaign around the UFC champion. UFC fighters appear on cans of Xyience, attend promotional events and wear the Xyience logo. According to the president of Xyience, UFC fans, who are two thirds male, between the ages of 21 and 34 are the company’s target demographic.
Energy Drinks Are Associated with Increased Risk-Taking, Including Fighting
Energy drink composition, marketing and consumption are currently under investigation by state and federal regulators. Energy drink consumption has been linked to adverse health events including caffeine intoxication, dehydration and even death. Moreover, a 2008 study found that frequent energy drink consumption by young adults, particularly young white males, was positively associated with risk-taking including fighting. The study concluded that energy drink consumption is closely associated with problem behavior syndrome. The group the study found to be most at risk overlaps with Xyience’s target demographic.
Six States and the Association of Ringside Physicians Ban the Use of Stimulant Drinks During MMA Fights
In order to protect the safety of combatants, Arkansas, Florida, Michigan, Ohio, Oklahoma, and Wisconsin ban the use of energy drinks during professional or amateur mixed martial arts bouts. Click here for a legal summary of these policies. State athletic commissions require that a physician be present ringside during mixed martial arts bouts. The Association of Ringside Physicians, a group created “to develop medical protocols and guidelines to ensure the safety and protection of Professional Boxers and MMA Athletes,” stipulates that “only water or an approved electrolyte drink by the Commission may be consumed during the bout,” and “[c]ontestants should not consume energy drinks on the date of the contest.”
The Cross-Promotion of UFC and Energy Drinks Is Unfair and Deceptive to Young Consumers
Marketing energy drinks alongside cage-fighting warrants further investigation as a potentially unfair and deceptive trade practice under state and federal consumer protection law. A deceptive trade practice is a marketing tactic that is likely to mislead a reasonable member of the target audience and is material to the consumer’s decision to purchase the product. A reasonable member of the target audience of UFC fans would be misled into thinking that energy drinks are permissible during bouts. The reasonable consumer likely does not know that energy drinks are actually banned during bouts in six states and by the Association of Ringside Physicians. This omission is not easily discovered by consumers as one has to search state athletic commission regulations to find such information. The cross-promotion of UFC and energy drinks is material to the target demographic because there are a number of energy drinks on the market that do not cross-promote UFC. Placing the UFC logo or pictures of a UFC fighter on a can and sponsoring top UFC fighters is intended to drive UFC fans to select drinks like Xyience and NOS over other energy drinks.
Energy drink cross-promotion of UFC may also be considered an unfair trade practice in jurisdictions that focus on marketing that violates established public policies. As noted above, six states and the Association of Ringside Physicians ban the use of energy drinks during fights. Marketing that associates energy drink consumption with UFC violates these established public policies and presents a potential health harm to the target audience of consumers—a demographic of energy drink users research has shown already is susceptible to engaging in risky behavior like fighting.
Energy Drinks and Fighting Don’t Mix
Xyience and NOS should abandon their association with UFC and MMA. Current marketing campaigns are unfair and deceptive to the target audience of consumers. Consumers deserve the same protections six states and the Association of Ringside Physicians extended to professional and amateur MMA athletes when they banned the use of energy drinks during bouts.
Tuesday, July 30th, 2013
Update: July 30, 2013
At this point, the Supreme Court of NY County (March 11, 2013) and the Supreme Court, Appellate Division, First Dept. (today) have ruled that the sugary beverage serving size cap in New York is invalid. The case name is: In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. New York Dept. of Health and Mental Hygene, et al..
Clearly, I was mistaken in my prediction (see original post below) that the measure would survive a legal challenge. While the City will seek review by the Court of Appeals of the State of New York (the state’s highest court), this has clearly turned into an uphill battle for Mayor Bloomberg and the City at this point.
Interestingly, the beverage industry has (so far) successfully relied on a case brought by the tobacco industry in the 1987 to successfully the stop the NY Health Council from taking steps to regulate smoking in public places. At that time, it was politically impossible to get the state legislature to enact smoking restrictions in public indoor areas and limit smoking in restaurants. Such a measure was viewed as an extreme infraction on smokers’ rights. In that case, Boreali v. Axelrod, the court held that for several reasons, only the legislature was suited to enact such a restriction. Those same reasons are cited in today’s decision reinforce the impression that many of the same societal changes and setbacks experienced in tobacco control are playing out around obesity prevention policy.
- In Boreali, the Court found that the administrative health agency took economic issues into account by exempting restaurants and bars from smoking bans. Economic concerns are beyond the scope of a health agency’s legal authority. In today’s decision, the fact that NYC exempted convenience stores and bodegas was interpreted as an economic concession (despite the City’s strong arguments to the contrary).
- In Boreali, the fact that the state legislature had previously rejected smoking bans suggested that it was inappropriate for a health agency to go ahead and do an end-run around a matter previously before the legislature. Likewise, in today’s decision the Court found that the NY City Council has “targeted” sugary beverages in the past, so this subject matter should be off-limits to the Board of Health.
- In Boreali, the Court ruled that the fact that the health agency was drafting a new type of restriction was evidence that it was “writing on a clean slate” rather than tweaking or otherwise perfecting an existing restriction that was clearly within its purview. Same thing here. It was a new and innovative regulation which, according the this Court’s reasoning, is why it ought to be handled by a legislative body rather than an administrative agency.
- Finally, the Court in Boreali found that a simple no-smoking rule did not involve expertise in health matters. In today’s decision, too, the Court found that a simple beverage size ban did not require health expertise and, therefore, is beyond the scope of authority granted to the Board of Health.
Under today’s ruling, any one of these four factors could invalidate agency action. Such strict application of Boreali may ultimately represent chilling new limits on the powers of health boards in New York state.
While analysts may disagree over whether the Court’s decision today was a well-reasoned one, and it may yet be subject to further appellate review, it is important to note that it is basically a dispute about New York law and not a fundamental legal problem with placing limits on serving sizes for sugary beverages that is at issue.
But that said, the real disagreement may be more about evolving norms surrounding sugary beverages than about administrative authority. As norms around tobacco use evolved over time, Boreali is increasingly seen as an example of the tobacco industry gaining a temporary victory at the cost delaying the protection of the public’s health. Perhaps today’s decision will be seen in a similar light in the not-too-distant future as norms around sugary beverages continue to evolve.
-Mark Gottlieb, J.D., Executive Director
Public Health Advocacy Institute at Northeastern University School of Law
Today the New York City Board of Health approved first-in-the-nation limits on the maximum size of sugary drinks served in restaurants, theaters, and sports venues. The vote was 8-0 in favor of adopting the regulation with one abstention. Grocery and convenience stores are exempt and diet drinks, juices, and drinks that are 50% of more milk (or milk substitute) are excluded.
While the measure drew ire from critics throughout the political spectrum, and has been inaccurately characterized as a “ban,” it has succeeded in invigorating the debate on the role of sugary drinks in obesity and the role of government to encourage mindful consumption. Such mindful consumption will begin 6 months from today when the new rule should go into effect.
In the meantime, there may be efforts by big drink stakeholders to challenge the regulation. One such group, New Yorkers for Beverage Choices, a group closely aligned if not controlled by the American Beverage Association, has hinted at such a challenge. The pro-business think tank, the Washington Legal Foundation, has published comments on the measure that suggest the basis for a legal challenge. A credible legal challenge could result in the granting of a injunction that could delay or derail the beverage size restriction. However, there appears to be little chance that such a challenge will lead to any measure of success.
The Washington Legal Foundation’s primary legal argument to oppose the measure is that it is the type of action that is normally reserved for legislation rather than rule-making by an administrative agency. The problem with that argument is that regulating serving sizes of sugary drinks in food establishments is clearly within the New York City Department of Health and Mental Hygiene’s authority to protect the public’s health under the City Charter’s sec. 558 and to engage in rule-making under sec. 1043. The Washington Legal Foundation public comments cite to a 1980s case, Boreali v. Axlerod. The case involved an early New York non-smoking rule that was overturned primarily because the state’s Public Health Council considered the economic impact of the restriction on businesses and offered waivers for those that could show financial hardship. This went beyond the Public Health Council’s legal authority to issue rules based solely on protecting health. Here, however, there is no waiver process and no consideration by the Board of Health of the economic impact this rule might have on businesses.
A second issue raised by the Washington Legal Foundation is that the problem of obesity is an important issue of concern to society and that dealing with such social issues is best left to legislative bodies rather than regulatory agencies. Citing again to the Boreali case, WLF suggests that this is a matter that it should only be addressed by elected officials and not agency appointees. Essentially, they are making a philosophical rather than a legal argument. Legally, this rule-making is very clearly within the agency’s purview.
In yesterday’s New York Times, an attorney who has previously represented New York restaurants suggested that the rule could be overturned on Constitutional grounds. This would be a reference to the Commerce Clause (Art. I, Sec. 8, Clause 3 of the U.S. Constitution) which grants Congress the power to regulate commerce among the states. If a state or, as in this case, a political subdivision of a state, passes a law or rule that substantially affects interstate commerce, it is possible that a court would find that the Commerce Clause reserved that power to Congress and the law or rule would be found to be unconstitutional. However, in this instance, there is virtually no argument that could be made that the beverage size rule could affect interstate commerce any more than the cup size could be found to be a form of free speech that the rule unconstitutionally restricts. Neither argument is credible enough to argue in a court room.
There is virtually no chance that the rule will be successfully challenged. Either threats of litigation will not materialize or, if they do, will be quickly dismissed. That result will encourage other communities to replicate the courageous action taken in new York City by Mayor Bloomberg and the Board of Health.
-Mark Gottlieb, J.D., Executive Director
Public Health Advocacy Institute at Northeastern University School of Law