Archive for the ‘Feet to the Fire’ Category
Tuesday, August 25th, 2015
By Cara Wilking, JD, Consulting Attorney
The Coca-Cola Company’s pouring of millions of dollars into the Global Energy Balance Network (GEBN), a front group focused on exercise as opposed to diet to combat obesity, has crystallized an issue that the public health community has long been concerned about: the role of industry funding to research and develop solutions to public health threats. A New York Times story exposing this funding arrangement has led to a public relations nightmare that finally culminated in a formal statement from Coke’s Chairman and CEO, Muhtar Kent. Mr. Kent stated that the accusation that the company is deceiving the public about its support for scientific research “does not reflect our intent or our values,” and promised more transparency. He promised to make available a list of the funding it supports, and to convene expert panels to assist with future “investments in academic research.”
Coke’s funding of GEBN is part of a well-articulated company strategy it calls “Balancing the Debate.” Coca-Cola’s chief scientific officer, Rhona S. Applebaum , PhD, laid out the Balancing the Debate strategy at a 2012 conference for the sugar industry. (CLICK HERE FOR THE FULL PRESENTATION) The strategy seeks to discredit what the company calls “detractors” in the scientific community like Kelly Brownell, Dean of the Sanford School of Public Policy at Duke University (formerly of Yale University), and public health organizations like Center for Science in the Public Interest.
At that 2012 industry conference, Ms. Applebaum told participants that she had come with a “plea from Coca-Cola” that “we all have to work together and use science.”
To that end, Ms. Applebaum, shared Coke’s strategy to “Balance the Debate” by using three interdependent steps: “Cultivate Relationships,” “Collaborate Research,” and “Communicate Results.” These steps, if properly taken, will result in a balanced debate that will “Address the Negative” and “Advance the Positive” for the food industry.
Ms. Applebaum, was clear that cultivating relationships and research collaborations comes down to dollars and cents. She outlined how to use research funding for “defensive and offensive science and research” to address the issues faced by the food industry.
The GEBN seems to have been tailor-made for the offensive and defensive research Coke had in mind, and it amplifies and expands the mission and capabilities of Coke’s Beverage Institute for Health and Wellness, which is run by Ms. Applebaum. On a slide entitled “What Experts Tell Us,” Ms. Applebaum gave insight into the company’s research agenda to “Shift energy balance,” “Inspire/Motivate consumer behavior change,” and “Bring opportunities (on energy in/out).”
To add a gloss of legitimacy to Coke’s vision for funding science to serve its agenda, its chief scientific officer, Ms. Applebaum, co-authored two papers: one in 2009 with guiding principles for industry funding of food science and nutrition research, and one in 2012 with guiding principles for establishing panels of scientific advisers. With respect to funding food science and nutrition research like that conducted by GEBN, Ms. Applebaum co-wrote the following guiding principles:
In the conduct of public/private research relationships, all relevant parties shall:
1) conduct or sponsor research that is factual, transparent, and designed objectively; according to accepted principles of scientific inquiry, the research design will generate an appropriately phrased hypothesis and the research will answer the appropriate questions, rather than favor a particular outcome;
2) require control of both study design and research itself to remain with scientific investigators;
3) not offer or accept remuneration geared to the outcome of a research project;
4) prior to the commencement of studies, ensure that there is a written agreement that the investigative team has the freedom and obligation to attempt to publish the findings within some specified time frame;
5) require, in publications and conference presentations, fully signed disclosure of all financial interests;
6) not participate in undisclosed paid authorship arrangements in industry-sponsored publications or presentations;
7) guarantee accessibility to all data and control of statistical analysis by investigators and appropriate auditors/reviewers; and
8) require that academic researchers, when they work in contract research organizations or act as contract researchers, make clear statements of their affiliation; require that such researchers publish only under the auspices of the contract research organizations. (emphasis added).
These guiding principles clearly were not adequately followed in the case of Coke’s funding of the GEBN, and it remains to be seen what other research it has been cultivating as part of its effort to “balance the debate.” Moreover, the whole concept of funding “defensive and offensive science and research” is completely at odds with the principles of objective research design contained in the guiding principles.
Coke has had a concerted effort to fund science in its favor pursuant to a specific plan laid out by its chief scientist in 2012, and it failed to adequately follow the ethical guidelines its chief scientist helped to write in 2009. The remedies CEO Kent now promises are to disclose who the company has funded (something, according to their chief scientist, the company should have already been doing), and enlisting more experts to help sort things out. For Coke’s CEO to say that the criticism of actions that were clearly in line with a well-articulated Coca-Cola Company strategic plan and failed to comply with basic ethical principles co-written by its chief scientific officer “does not reflect” the company’s “intent” or “values” is partly right and partly wrong. It clearly reflects Coke’s intent to fund science to serve its interests. It does not, however, reflect the purported values of the company with respect to working with scientific researchers.
Re-Tooling Bottled Water Bans and Healthy Beverage Requirements to Serve Sustainability and Public Health Goals: A Constructive Path Forward
Monday, June 29th, 2015
By Cara Wilking, JD, PHAI Consulting Attorney
Researchers at the University of Vermont in Burlington (UVM) published a paper describing the impact of a campus bottled water ban that was paired with a healthy beverage requirement. The study found that removing bottled water from campus had no impact on the number of plastic bottles shipped to the campus, and resulted in higher consumption of unhealthy beverages. These results do not support the sustainability or public health goals of the bottled water ban: it failed to reduce plastic trash and carbon emissions or improve the nutrition profile of beverages consumed by students, faculty and staff on the UVM campus.
The study puts a fine point on a very practical tension that exists between two highly organized movements: the obesity and oral health prevention movements with a primary focus on shifting the public from caloric beverages to non-caloric beverages like water–for the most part regardless of how they are packaged; and a segment of the sustainability movement that has honed in on bottled water as a unique source of plastic trash, carbon emissions from its transportation, and a burden on communities from where it is extracted for packaging. The public health community regards bottled water as a healthy alternative to other drinks when consumers are choosing a beverage to buy, and the environmental community considers bottled water to be a needless source of pollution. The UVM study findings call out for solutions that meet the goals of both groups, and that combine their forces for a greater collective impact.
A constructive path forward is for both movements to work together to reduce access points for all packaged beverages. A key to the bottled beverage industry’s success has been to insert itself into every aspect of daily life. Vending machines are found in parks, schools, college campuses, recreation centers, etc. And coolers selling bottled beverages are placed at the end-caps of retail check-out lines, and fill the walls of convenience stores all over the country—including in places like college campuses. These access points haven’t always been there. They’ve been inserted via private contracts over time—these are contracts that are not required to be renewed and can be radically altered to support the environment and the public health.
A strategic focus on reducing total access points for packaged beverages benefits the environment through:
- Reduction in total number of plastic bottles used
- Reduction in carbon emissions from transport of bottled beverages
- Reduction in energy use from vending equipment and refrigerated cases
- Increase in awareness of and local support for public water systems
And benefits the public health through:
- Reduction of total packaged beverages consumed, many of which contribute to diet-related chronic disease and poor oral health
- Increase in investment and maintenance of plumbed drinking water access points
- Increase in awareness of and local support for community water systems
A focus on a total reduction of packaged beverages is timely because demand for sugary drinks is on the decline. This new path will require both movements to expand their thinking on their respective issues and entails political risks on both sides. The obesity prevention movement will have to move beyond efforts to change the product mix in existing vending machines and other retail sales outlets and embrace phase-outs of beverage vending machines and cooler equipment. A focus on an overall total reduction in sales of bottled beverages will not be cost-neutral in terms of revenues from bottled beverage sales. This will undoubtedly raise great opposition from the beverage industry and firms and institutions that profit from packaged beverage sales.
The environmental movement will have to expand its definition of bottled water to include water that has been carbonated, sweetened, flavored or brewed and packaged in plastic. A focus on bottled water alone has strategic benefits, especially on a college campus, because plain water can be accessed via drinking fountains. Moreover, allowing other packaged beverages to remain quells critics by providing choices beyond the drinking fountain. There, however, seem to be few discernible differences between bottled water and other bottled beverages: all have water as the primary ingredient, both may have been bottled at the same factory, both are placed in plastic containers, trucked in a vehicle, refrigerated in a machine, tossed into a trash or recycling receptacle, or not properly disposed of at all.
Both movements have built momentum and achieved many accomplishments. Imagine how much more progress can be made if they join forces.
Wednesday, June 11th, 2014
Today, the Public Health Advocacy Institute at Northeastern University School of Law, is releasing the issue brief Copycat Snacks in Schools on the food industry’s recent push to market popular junk food brands in schools. As noted in today’s New York Times story by Michael Moss entitled “The Domino’s Smart Slice Goes To School,” PHAI has called upon the USDA to address branded junk food marketing in schools. Starting July 1, 2014, all foods sold outside of the National School Lunch Program, such as food from vending machines and school stores, will have to meet United States Department of Agriculture “Smart Snacks” nutrition criteria. Not wanting to lose an in-school marketing opportunity, major food companies like PepsiCo are producing reformulated versions of popular junk foods like Cheetos® and Doritos® that meet the Smart Snacks criteria, but use the same brand names, logos and spokescharacters as are used to market traditional junk food.
For example, PepsiCo produces and markets to school food service directors a product called Cheetos® Flamin’ Hot Puffs Reduced Fat. This product meets the USDA Smart Snack guidelines, but it is not widely available for retail purchase outside of schools. Instead, PepsiCo offers Cheetos® Flamin’ Hot Puffs to the broader public. As you can see below, the product packaging is almost identical.
Copycat snacks like reduced fat versions of Cheetos® products are not widely available for purchase outside of schools and are clearly designed to co-market traditional junk food to children in school. The issue brief describes copycat snacks, how they undermine nutrition education efforts, and what can be done to stop the sale and marketing of these products in schools.
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.
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.
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.
Monday, July 29th, 2013
Today, the Public Health Advocacy Institute (PHAI) at Northeastern University School of Law in Boston, released a report entitled Energy Drink Self-Regulation chronicling the ways in which major energy drink makers openly violate the self-regulatory guidelines issued by their own trade association, the American Beverage Association (ABA). A review of energy drink marketing, promotion, and employee recruiting materials from 2012 found that despite self-regulatory pledges to the contrary, energy drinks are promoted as mixers with alcoholic beverages and often marketed in ways that foster confusion with sports drinks. Energy drink makers have come under growing scrutiny by state and federal regulators as reports of irresponsible marketing practices and adverse health events associated with energy drink consumption have come to light. The U.S. Senate Committee on Commerce, Science and Transportation will hold a hearing on Wednesday, July 31, 2013 at 2:30 p.m. titled, “Energy Drinks: Exploring Concerns About Marketing to Youth.” Major energy drink makers were asked to submit information about marketing to youth in advance of the hearing. PHAI’s findings reveal that regulatory oversight is needed as self-regulatory pledges are not being complied with.
Market Leader Red Bull Openly Violates ABA Marketing Guidelines
Two of the ABA’s core self-regulatory principles are to refrain from marketing energy drinks as mixers for alcoholic beverages and to not market energy drinks as sports drinks. Red Bull is the leading energy drink company. Red Bull trains its sales staff to market Red Bull as a mixer to bars and clubs, through distribution of point of sale materials like Red Bull branded mini-fridges, bar mats and neon signs, and training bartenders how to execute the “Perfect Serve” a standardized way to serve a Red Bull and vodka drink. Red Bull also trains its guerilla marketing staff, called its Wings Team, to deliver Red Bull to parties on college campuses. “Red Bull’s total disregard for its own trade associations’ marketing guidelines, exposes the guidelines as nothing more than a paper tiger and makes clear the need for real regulation in this area,” said Cara Wilking, senior staff attorney at PHAI.
The ABA Should Stop Misleading the Public
The ABA acknowledged the dangers of combining alcohol with caffeinated beverages and marketing energy drinks as sports drinks when it issued its energy drink marketing guidelines. The ABA routinely references the guidelines when energy drinks are publicly criticized. In light of this report, to continue to tout its self-regulatory guidelines for energy when its member companies so openly violate them is potentially misleading to the public and regulators. “All of the information contained in the report released today is publicly available. Even the slightest accountability measures by the ABA would have found that two of its major recommendations are not being followed,” said Cara Wilking senior staff attorney of PHAI.
- Download PHAI’s report here.