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Posts Tagged ‘Marketing’

Banned In the Cage: How Xyience and NOS Unfairly and Deceptively Market Energy Drinks

Tuesday, August 13th, 2013

by Cara Wilking, J.D., Rebecca Leff and Katelyn Blaney

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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

UFC champion Ronda Rousey holding a can of Xyience in the ring after a bout in California.

UFC champion Ronda Rousey holding a can of Xyience after a 2013 bout in California.

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

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This poster is featured on the Xyience website advertising a bout in Milwaukee Wisconsin. Wisconsin bans the use of energy drinks during MMA fights

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.



Super-Sized Lunchables Solicits Teens to Upload Risky User-Generated Content

Thursday, July 18th, 2013

by Cara Wilking, J.D.

Seeking to capitalize on the public’s insatiable appetite for Youtube stunt videos, Kraft Foods has teamed up with Rob Dyrdek, the host of MTV’s Ridiculousness, to market its recently released Lunchables Uploaded line of lunch kits. Marketed to parents as a way to “Give them more of what they love,” Lunchables Uploaded kits contain larger portion sizes. In keeping with the product name, Kraft is urging teens to upload videos to be featured on the Lunchables Uploaded website. Kraft produced a series of challenge videos that are emblematic of the types of videos the company is interested in receiving as well as a series of stunt videos featuring Mr. Dyrdek and Lunchables Uploaded products.

In the “Terms and Conditions” for its solicitation of user-generated content, Kraft states that entrants must be at least 13 years old to participate and that no prizes will be awarded (other than having a video featured on the website). Eligible participants are told “[w]e [Kraft] made these guidelines so that everyone can have a good time. We don’t want you to break the guidelines. We also don’t want you to hurt yourself while making an Upload. If you do break the guidelines or hurt yourself, it’s your responsibility….” A look at the Kraft-produced challenges and the content it’s featuring on its Lunchables Uploaded website reveals that the company is not committed to following its own terms and conditions with regard to safety.

In the “Paper Airplane” challenge, Mr. Dyrdek is first shown throwing a traditional paper airplane inside. He then tells viewers, “You could do it like that. Or, you could upload your plane game.” He is then shown throwing a giant paper airplane off of the top of a building. The video begins by warning viewers not to take unnecessary risks and has over 90,000 views on Youtube.

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Despite its warning not to engage in unnecessary risks, Kraft is featuring a user-generated video of a man standing on a pitched roof holding large paper airplanes on its Lunchables Uploaded website.

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Mr. Dyrdek is also featured in a Lunchables Uploaded skateboard challenge. In the beginning of the video he is shown skateboarding without any safety gear–no helmet, wrist or knee pads. He is then shown riding a giant skateboard high off of the ground with no helmet on.

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The giant skateboard is comical and Mr. Dyrdek is a professional who was assisted by a production team. Kraft, however,is featuring several videos and still photos of young people skateboarding wearing no safety equipment on its youth-targeted Lunchables Uploaded website.

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This is in stark contrast to the depiction of a helmeted child on Krafts adult-targeted webpage for Lunchables Uploaded.

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While the terms and conditions on the Lunchables Uploaded website use refreshingly direct language for a legal disclaimer, “[w]e [Kraft] don’t want you to hurt yourself while making an Upload,” the challenge videos and the content they are featuring on the website encourage and reward risky behavior. When teens upload a video or photo, Kraft receives the right to use the content for marketing purposes. When Kraft features the content on its website it then becomes responsible for the content and laws relevant to marketing, including consumer protection laws, must be complied with. The Federal Trade Commission has a history of taking enforcement action when advertisements depict children engaging in risky behavior. In light of the Kraft Uploaded campaign, it might be wise to consider expanding protections for older kids.

 

 



Health Groups Ask Federal Trade Commission to Investigate Merck’s Use of “Madagascar 3: Europe’s Most Wanted” Characters to Market Children’s Claritin®

Wednesday, June 20th, 2012

Wednesday, June 20, 2012

FOR IMMEDIATE RELEASE

Contact: Cara Wilking, 617-373-5699

Today, the Public Health Advocacy Institute (PHAI) at Northeastern University School of Law in Boston, joined by 10 other organizations, sent a letter to the U.S. Federal Trade Commission (FTC) asking that it investigate Merck & Co. Inc.’s  Madagascar 3-themed marketing campaign for its flagship pediatric allergy medication, Grape-Flavored Chewable Children’s Claritin®.

“Marketing medicine directly to children at all, much less through entertainment tie-ins, is well beyond the pale and is not only inherently unfair, it is downright dangerous,” said Mark Gottlieb, executive director of PHAI.

To promote its June release of the Madagascar 3: Europe’s Most Wanted movie, Dreamworks licensed its Madagascar characters to Grape-Flavored Children’s Claritin®. It also licensed the characters to market other children’s foods including fruit-flavored Airheads candy, General Mills (Betty Crocker) Fruit Snacks, and McDonald’s Happy Meals. The use of the same characters on candy and gummy snacks and Children’s Claritin® creates the impression that the medicine is candy and could lead children to over consume the product at great risk to their health.

claritinmadagascarThe FTC regulates over-the-counter (OTC) drug marketing and has protected children from marketing of vitamin supplements, and by extension OTC drugs, since 1977 when it found the use of Spider-Man to market vitamins to children to be unfair and deceptive (In re Hudson Pharmaceutical Corp., 89 F.T.C. 82 (1977)).

Merck’s campaign utilizes customized Madagascar 3 packaging including “5 Free Stickers.”with Madagascar 3 characters and containing “5 Free Stickers.” Mail-in movie ticket voucher promotions were prominently placed at retail outlets such as Walgreens and downloadable Children’s Claritin® Madagascar-themed activity games further targeted children. Merck also enlisted its “Children’s Claritin® Mom Crew” members to create social media buzz. Mom Crew members held Madagascar-themed viewing parties for children featuring product samples, coupons, DVD’s, popcorn containers and, Madagascar stickers and then featured the children’s parties on their blogs and websites.

Cara Wilking, a PHAI senior staff attorney who authored the letter, added, “the FTC stepped in and stopped this practice a generation ago. Apparently OTC drug-makers like Merck need to be reminded that targeting kids is unfair, deceptive, and unacceptable.”

PHAI, Berkeley Media Studies Group, Campaign for a Commercial-Free Childhood, Center for Digital Democracy, ChangeLab Solutions (formerly Public Health Law & Policy), Corporate Accountability International, Eat Drink Politics, Public Citizen, The Public Good Law Center, Public Health Institute and Prevention Institute request immediate action by the FTC to stop this practice before it becomes widespread.



PHAI’s Friedman and Gottlieb Co-author: “Soda and Tobacco Industry Corporate Social Responsibility Campaigns: How Do They Compare?” in PLoS Medicine

Tuesday, June 19th, 2012

PHAI senior staff attorney Lissy Friedman and executive director Mark Gottlieb collaborated with Lori Dorfman, Andrew Cheyne and Asiya Wadud of the Berkeley Media Studies Group to produce this article published today in PLoS Medicine.

Soda companies’ PR campaigns are bad for health:

Health advocates need to organize strong public health campaigns to educate the public and policymakers about the dangers of both sugary beverages and the misleading industry corporate social responsibility campaigns that distract from their products’ health risks, according to US experts writing in this week’s PLoS Medicine.

In a Policy Forum article, the authors (media and public health experts from the Berkeley and Boston, USA) examined prominent campaigns from industry leaders PepsiCo and Coca-Cola, that, according to the authors, have embraced corporate social responsibility (CSR) with elaborate, expensive, and multinational campaigns.

The authors say that while soda companies may not face the level of social stigmatization or regulatory pressure that now confronts Big Tobacco, concern over soda and the obesity epidemic is growing.

In response to health concerns about their products, the authors argue that soda companies have launched comprehensive CSR initiatives sooner than did tobacco companies but that these campaigns echo the tobacco industry’s use of CSR as a means to focus responsibility on consumers rather than the corporation, bolster the companies’ and products’ popularity, and to prevent regulation.

However, unlike tobacco CSR campaigns, soda company CSR campaigns explicitly target young people and aim to increase sales.

The authors say: “It is clear that the soda CSR campaigns reinforce the idea that obesity is caused by customers’ “bad” behavior, diverting attention from soda’s contribution to rising obesity rates.” They continue: “For example, CSR campaigns that include the construction and upgrading of parks for youth who are at risk for diet-related illnesses keep the focus on physical activity, rather than on unhealthful foods and drinks. Such tactics redirect the responsibility for health outcomes from corporations onto its consumers, and externalize the negative effects of increased obesity to the public.”

The authors argue: “Emerging science on the addictiveness of sugar, especially when combined with the known addictive properties of caffeine found in many sugary beverages, should further heighten awareness of the product’s public health threat similar to the understanding about the addictiveness of tobacco products.”

They conclude: “Public health advocates must continue to monitor the CSR activities of soda companies, and remind the public and policymakers that, similar to Big Tobacco, soda industry CSR aims to position the companies, and their products, as socially acceptable rather than contributing to a social ill.”

This article is one in a PLoS Medicine series on Big Food that examines the activities and influence of the food and beverage industry in the health arena. The series runs for three weeks beginning 19 June 2012 and all articles will be collected at www.ploscollections.org/bigfood. Twitter hashtag #plosmedbigfood

Funding: This research was supported by the Healthy Eating Research program (http://www.healthyeatingresearch.org/) of the Robert Wood Johnson Foundation, grant #68240. The funders had no role in study design, data collection and analysis, decision to publish, or preparation of the manuscript.

Download the article here.



State Laws Prevent Local Control Over Much More Than Just Happy Meal Toys

Wednesday, May 18th, 2011

Prepared by Cara Wilking, J.D., Staff Attorney

Santa Clara County, CA and the City and County of San Francisco, CA enacted ordinances requiring restaurants to meet nutrition criteria for children’s meals that use incentive items such as toys to drive child consumer demand. Neither law bans the use of toys or other incentive items, and both laws are designed to protect children from being baited into requesting unhealthy meals.  The Governor of Arizona recently signed into law a provision barring local governments from putting any limits on the use of “consumer incentive items” in “retail food establishment marketing.”  Florida currently has an even broader law on the Governor’s desk that would prevent local control over “all matters related to the nutritional content and marketing of foods offered” at public food and lodging establishments. As chronicled by the LA Times, both of these laws were carefully orchestrated by the restaurant industry in response to so-called “toy bans.” In point of fact, both laws go far beyond Happy Meal toys.

In addition to protecting vulnerable child consumers, local governments regulate business conduct under their police power and zoning authority for a number of reasons including aesthetics, public health and public safety.  Arizona’s consumer incentives law essentially exempts food retailers from any local regulation that may have an impact on their business activities related to consumer incentives.  “Consumer incentives” are broadly defined to include:  “any licensed media character, toy, game, trading card, contest, point accumulation, club membership, admission ticket, token, code or password for digital access, coupon, voucher, incentive, crayons, coloring placements or other premium prize or consumer product” associated with a meal served by or acquired from a restaurant, food establishment or convenience store.  The legislation pending in Florida strips local control over “all matters related to the nutritional content and marketing of foods offered” at public food and lodging establishments.

Many communities maintain the character of their communities through local aesthetic-related zoning laws. Imagine a small city with a historic downtown preserved by local zoning ordinances to protect the aesthetic character of the city. The community becomes concerned when a quick service restaurant starts putting large signs in its windows marketing a combo meal with a wrapper that one can scan with one’s phone to get points towards a future purchase.  A local authority goes out to talk to the franchise owner and ask him to remove the signs as they are not in keeping with the local zoning ordinance. The restaurant owner refuses to remove the signs.  Under the legislation enacted in Arizona and pending in Florida, the city would be powerless to challenge the practice.

The as yet to be enacted Florida law, is so broad that it would prevent local governments from requiring additional nutritional disclosures to consumers about the calorie or sodium content of restaurant menu items.  In addition, some states delegate consumer protection authority to city and county attorneys. Such authority was used by a city attorney to make the first formal challenge to misleading “Immunity” claims on children’s cereal marketed at the height of the swine flu outbreak. The pending Florida law arguably would even exempt any food marketing by a restaurant or public lodging from local city or county attorney enforcement of deceptive and unfair business practices laws.

A recent story by Reuters run in a number of news outlets analogized  the current legislation to “cheeseburger” or “commonsense consumption” bills, also sponsored by the restaurant industry. Cheeseburger bills are on the books in over 20 states and bar personal injury claims against food makers and restaurants for injuries related to long term over-consumption of food. Many state cheeseburger bills, however, do not immunize food sellers from liability when they knowingly violate laws pertaining to marketing, distributing, advertising, labeling or sale of the goods such as state consumer protection statutes prohibiting deceptive, unfair or unconscionable trade practices. The very purpose of local ordinances tying child incentive items to nutritional quality is to protect children from the fundamentally unfair and deceptive use of toys to generate child requests for unhealthy foods. The Arizona and Florida laws contain no such exemption to allow local intervention to protect vulnerable consumers from deceptive and unfair food marketing.

The law in Arizona and the pending legislation in Florida, strip local governments not only of the ability to protect children from harmful business conduct, their expansive nature jeopardizes local control over many other important business conduct issues.  These laws fundamentally change the rules of the game that local governments have depended on to maintain community character and to protect their communities.



PHAI Researches Unfair Food Marketing to Kids (and those who purchase for kids)

Tuesday, December 8th, 2009

Staff Attorney Cara Wilking Presents Poster

-- Staff Attorney, Cara Wilking, Presents Poster

On December 2, 2009, Mark Gottlieb and Cara Wilking presented a poster to the Robert Wood Johnson Foundation’s Healthy Eating Research program grantees in Tucson, Arizona.

PHAI is exploring how state consumer protection laws can be used to address unfair and deceptive food and beverage marketing practices directed toward children or those who purchase food and beverages for children.  Such state laws may permit private citizens, attorneys general or prosecutors to bring actions consumer fraud.

Recently, Connecticut state attorney general Richard Blumenthal launched an investigation into the Smart Choices labeling program. The eight large food companies that participated in the labeling program (ConAgra Foods, General Mills, Inc., Kellogg Company, Kraft Foods, PepsiCo, Inc., Riviana Foods, Sun-Maid and Unilever) have agreed to remove the program’s logo from their products, at least during the investigation.

PHAI’s findings will be available by the Fall of 2010.




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