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Archive for the ‘Feet to the Fire’ Category

Major Energy Drink Makers Don’t Play By Their Own Rules

Monday, July 29th, 2013

Cara Wilking, J.D.EDpic

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.



Coors Light and The Wolverine Market Beer to Underage Youth

Monday, July 22nd, 2013

by Cara Wilking, J.D. and Rebecca Leff

A new Coors Brewing Company television advertisement called “Mutant Can” shows two scientists in a lab trying to find a way to improve the design of the Coors Light beer can. They then are shown in a movie theater watching The Wolverine (2013) and are inspired to improve the can by adding an “adamantium claw defense system”—a reference to the Wolverine’s special powers. The advertisement features clips from the upcoming movie.  Beyond the unimaginative dialogue and choppy editing one is left wondering: Why is a beer company using a PG-13 movie based on a popular comic book to promote its beer?  And hasn’t Coors made this mistake before?

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In 2003, just one month after alcohol marketers agreed to advertise only in media that targeted adult audiences, Coors Brewing Company sponsored Miramax’s PG-13 rated Scary Movie 3 (2003). Coors Light produced a Scary Movie-themed television advertisement urging viewers to keep an eye out for the “Coors Light Twins” during the movie. The advocacy group Alcohol Justice (formerly the Marin Institute) mounted a “Scary Beer Ads Campaign” against Coors’ youth-targeted marketing that ultimately ended Coors’ future plans for an advertising tie-in with Scary Movie 4.

Dartmouth's Prof. Sargent

James Sargent

Fast forward ten years and Coors is at it again. While people associated with the film refused to comment to the media about whether or not the film would be rated R in the run-up to the official rating announcement, The Wolverine (2013), like the first film in the Wolverine movies series, recently received a PG-13 rating from the Motion Picture Association of America. Like it did ten years ago Coors will likely argue that it didn’t know what the rating would be when it agreed to sponsor the film. When asked about the use of PG-13 movies to cross-promote alcohol and alcohol product placement in PG-13 movies James Sargent, Professor of Pediatrics, Dartmouth Medical School noted that “alcohol companies told the Federal Trade Commission that they can’t help putting their products in movies aimed at kids because they can’t know how a movie will be rated beforehand.  That’s rubbish.  The youth market is too important for Twentieth Century Fox to risk an R rating for movies like The Wolverine; that’s why movie rating is part of the production contract (and why some movies make multiple trips to the ratings board).  Wolverine (and Coors) will be seen by masses of teens and many elementary school children as well.”

Coors Light is first on the list of the film’s promotional partners on the film’s official website and links to the Coors Light Facebook page (pictured below).

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Coors produced the “Mutant Can” television commercial and publicizes its partnership with the movie on its Facebook page. In turn the Wolverine shared a picture of a shredded Coors Light beer can from the Coors Light Facebook page with its Facebook fans, though the post was hidden from declared under-21 Facebook users in the United States.

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Coors’ obvious targeting of an under-aged audience is evident in the company’s choice to advertise through a popular comic book character. Logan, the Wolverine’s human alter-ego, is known to have struggled with alcohol abuse despite the fact that he is a mutant who possesses animal-keen senses, enhanced physical capabilities and a healing factor that allows him to recover from virtually any wound, disease, or toxin at an accelerated rate.

The metal alloy adamantium bound to Logan’s skeleton makes him almost indestructible. Coors Light developed the  slogan “Adamantium meets aluminum” to connect Logan’s drinking and indestructibility to Coors Light beer for a young audience. This campaign fits with Coors Brewing Company’s history of targeting young film audiences with its alcohol advertising. The Wolverine comes out July 26—it should ditch it’s partnership with Coors Light beer now.

UPDATE: PHAI has submitted a formal complaint to the Beer Institute.



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.

 

 



Pepsi’s “Live for Now” campaign is the Joe Camel of soda marketing to youth

Wednesday, January 9th, 2013

[Adapted from Richard A. Daynard’s presentation to the 2013 Annual Meeting of the Association of American Law Schools’ Agriculture and Food Law section, January 5, 2013.]

Soda consumption is a major contributor to adolescent obesity.1 Fortunately, soda consumption has been declining recently,2 presumably as a result of adverse media attention and policy initiatives like the ban on most sugar-sweetened beverages in schools.

live for now2

PepsiCo has decided to do something about that, and has designed its “Live for Now” campaign in an effort to reverse the decline in teenage soda  consumption. The campaign takes advantage of known adolescent vulnerabilities which result from the facts that the inhibitory structures of their brains are not fully developed, hormonal changes further reduce inhibitions while lowering self-esteem, and their psychosocial development focuses on identity formation and social acceptance.3  As a result they tend to be impulsive, thrill-seeking, and “now”-oriented. While they may rationally balance perceived risks and benefits, doing so does not necessarily inure to their best long-term interests.

Pepsi’s Live for Now campaign, like the infamous Joe Camel campaign used by R.J. Reynolds, is designed to prey upon these adolescent vulnerabilities in an effort to reverse declining consumption trends as well as to market a particular product.

Unlike cigarette advertisers, Pepsi is free to take its campaign to the airwaves.  It will do so in a big way when it will sponsor the Superbowl Halftime Show featuring Beyoncé, who recently entered into a $50 million endorsement deal with PepsiCo.

The Federal Trade Commission could bring an enforcement action under its unfairness jurisdiction, and state attorneys general and private attorneys could seek injunctive relief under state consumer protection laws.

But little is likely to happen unless public outrage is focused on this campaign, and unless regulators and judges learn more about the biological and developmental underpinnings of faulty adolescent decision-making.

 

References:

1.                Ludwig DS, Peterson KE, Gortmaker SL. Relation between consumption of sugar-sweetened drinks and childhood obesity: a prospective, observational analysis. Lancet 2001; 357: 505–508.

2.                Strom, S. (2012). “Soda Makers Scramble to Fill Void as Sales Drop.”  The New York Times, May 15, 2012.

3.                Pechman, Cornelia, Linda Levine, Sandra Loughlin, and Frances Leslie (2005), “Impulsive and Self-Conscious:  Adolescents’ Vulnerability to Advertising and Promotion,” Journal of Public Policy & Marketing, 24 (Fall), 202-221.             

Research assistance by Brendan Burke and Cara Wilking
Support for this research was provided, in part, by the National Cancer Institute (2R01CA087571).



Nestlé’s nutritional advice recommends avoiding Kraft Lunchables, but Nestlé puts its candy in Lunchables anyway

Thursday, September 6th, 2012

This week, as millions of American children return to classrooms and lunchrooms, moms and dads are trying to sort out which pre-made food products are conducive to learning and a healthy diet and which are flashy, sophisticated packages of junk food.

Nestlé, which deems itself “the world’s leading nutrition, health and wellness company” has teamed up with Kraft Foods to sell three of its candy brands (Nestlé, Crunch, Nerds, and Kit Kat) in Kraft’s Lunchables. Nestle candy is included in “Lunchables with Juice” varieties containing “Light Bologna and American Cracker Stacker,” “Pizza with Pepperoni made with Pork, Chicken and Beef,” and “Nachos, Cheese Dip and Salsa.” A picture of  Nestlé candy is featured prominently on Lunchables product packaging:

Lunchables with Nestle Crunch Bar

 

The inclusion of Nestlé candy in these products is perplexing because Nestlé maintains a health and nutrition-focused website for parents called NestleFamily.com where it proffers tips for packing healthy school lunches by Dr. Christine Wood.  A look at four of Nestlé’s healthy lunch tips reveals that Kraft Lunchables products with Nestlé candy fall short.

The first tip: “Pack 100% juice boxes.”

Tip two: “Try to limit the frequency of using processed luncheon meats because of the nitrates in them. (Nitrates are preservatives found in many cooked and cured meats and should be given sparingly to young children.)”

Tip three: “Your kids will be more interested in healthy eating if they get involved in the preparation.”

Tip four: Use fresh fruits and vegetables.

NestleFamily.com says “Packing a healthy lunch for your kids can be a challenge!” It sure can. Especially when food manufacturers talk healthy foods and walk junk.



PHAI joins the Center for Digital Democracy and others in complaint to FTC over children’s websites’ “Tell-A-Friend” tactics

Wednesday, August 22nd, 2012

Today the Public Health Advocacy Institute at Northeastern University School of Law in Boston has joined a coalition of children’s, health, privacy and consumer advocacy organizations in a complaint to the U.S. Federal Trade Commission against several children’s websites for violations of the Children’s Online Privacy Protection Act (COPPA). The offending children’s websites use a “Tell-A-Friend” feature to induce children to provide e-mail addresses of their peers.  The websites involved include McDonald’s HappyMeal.com, General Mills’ ReesesPuffs.com and TrixWorld.com, Doctor’s Associates’ SubwayKids.com, Viacom’s Nick.com, and Turner Broadcasting’s CartoonNetwork.com.

The Tell-A-Friend tactic uses a game or other child-targeted activity as a way to engage children in an immersive  marketing experience and then directs users to share the activity with friends by entering multiple e-mail addresses.  Those children will receive an e-mail that may or may not appear to be from their friend urging them to go to a child-targeted marketing website. This viral marketing tactic creates and reinforces brand awareness providing value to the advertiser.  All of this occurs without prompts for any parental consent and, in McDonald’s case, may involve distributing a photograph of the child taken by webcam to recipients of the e-mail message.

Mark Gottlieb, Executive Director of PHAI, noted that, “COPPA was enacted by Congress to protect children under 13 from divulging any personal information to commercial interests on the Internet without the consent of a parent. By inducing young kids to provide the e-mail addresses of their peers, the companies involved here are certainly violating the spirit of COPPA and, it would appear, the letter of the law as well through these “Tell-A-Friend” practices.  This is something that state attorneys general could also investigate under their consumer protection authority because these tactics are unfair and deceptive.”

In addition to the Center for Digital Democracy which has published the complaints on its website, PHAI was joined by the American Academy of Child and Adolescent Psychiatry, Berkeley Media Studies Group, Campaign for Commercial Free Childhood, Center for Media Justice, Center for Science in the Public Interest, Children Now, Consumer Action, Consumer Federation of America, Consumer Watchdog, ChangeLab Solutions, Global Action Project, Media Literacy Project, Privacy Rights Clearinghouse, Public Citizen, and the Rudd Center for Food Policy & Obesity at Yale University.



For Many Living With Limb Loss, “Open Happiness” Doesn’t Ring True

Tuesday, July 24th, 2012

by Cara Wilking, JD

As part of its 2012 Olympic Games marketing blitz, the Coca-Cola Company has assembled a “Coca-Cola 8-pack of Athletes” to  “serve as Coca-Cola ‘Ambassadors of Active Living’ to help encourage and inspire people to lead active, balanced lives.”[1] This group includes Jessica Long, a 2012 U.S. Paralympic Swimming Team nominee.[2] Ms. Long was born with fibular hemimelia, a condition of the lower legs, and became a double leg amputee at 18 months old.[3] Ms. Long’s athletic achievements are undeniable and her seamless inclusion in the marketing campaign is in line with equality and dignity for all. The tragic reality of lower limb loss, however, is that the majority of people suffering from non-traumatic lower limb loss are diabetic, and it is not medically appropriate for diabetics to consume sugar-sweetened beverages.

From what has been released of the campaign so far, the “Coca-Cola 8-Pack of Athletes” promotes full-sugar Coca-Cola. Ms. Long is no exception. Her commercial, entitled “Home,” shows her swimming as a child in her grand-parents’ backyard pool and moves through a range of global swim competitions.[4] The commercial ends with Ms. Long drinking from a bottle of full-sugar Coca-Cola. Cans of full-sugar Coca-Cola are shown next to the tagline “Open Happiness” and an announcer says, “Support our athletes with the Cola-Cola Olympic Series Collector’s Cans.” In other words, “Buy Coke!”

If one of the goals of Coca-Cola’s “8-pack of Athletes” campaign is to inspire people, including those suffering from limb loss, to lead active lives, then why does the campaign promote a product diabetics are under doctor’s orders to avoid?

Sugar-sweetened beverages like Coca-Cola are associated with obesity-related diseases including Type 2 Diabetes.[5] The Centers for Disease Control estimates that as many as 1 in 3 U.S. adults could have diabetes by 2050.[6] The links between diabetes and limb loss are stark and tragic:

As inspiring as Ms. Long’s journey is, for many people living with the loss of a limb there is no “happiness” to be found in a can of Coke—a fact the Coca-Cola Company seems to have overlooked.



[1] The Coca-Cola Company, Press Release, Coca-Cola Opens Happiness With Its New “8-Pack” of Athletes for London 2012 Olympic Games, May 17, 2011, http://www.thecoca-colacompany.com/dynamic/press_center/2011/05/eight-pack-of-athletes-for-london-2012-olympic-games.html; and The Coca-Cola Company, Move To the Beat of London, http://www.coca-cola.com/theolympics/en-US (last visited June 28, 2012).

[2] Coke 2012 Olympics Commercial: Jessica Long “Home”, YouTube.com, June 19, 2012, CocaCola, http://www.youtube.com/watch?v=jpFrYaL6N2w&feature=plcp (last visited June 27, 2012).

[3] About Jessica, GraceLong.com, http://www.gracelong.com/index.php/about (last visited June 27, 2012).

[4] Coke 2012 Olympics Commercial: Jessica Long “Home”, YouTube.com, June 19, 2012, CocaCola, http://www.youtube.com/watch?v=jpFrYaL6N2w&feature=plcp (last visited June 27, 2012).

[5] Vasanti S. Malik et al, Sugar-Sweetened Beverages, Obesity, Type 2 Diabetes Mellitus, and Cardiovascular Disease Risk, 12 Circulation, 1356-1364 (2010).

[6] U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Press Release, Number of Americans with Diabetes Projected to Double of Triple by 2050, http://www.cdc.gov/media/pressrel/2010/r101022.html.

[7] U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Diabetes Fact Sheet: National Estimates and General Information on Diabetes and Prediabetes in the United States, 2011, at 1, http://www.diabetes.org/in-my-community/local-offices/miami-florida/assets/files/national-diabetes-fact-sheet.pdf.

[8] U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Diabetes Fact Sheet: National Estimates and General Information on Diabetes and Prediabetes in the United States, 2011, at 8, http://www.diabetes.org/in-my-community/local-offices/miami-florida/assets/files/national-diabetes-fact-sheet.pdf.

[9] U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, Living with Diabetes: Keeping Your Feet Healthy, http://www.cdc.gov/Features/DiabetesFootHealth/.

[10] Diabetes Statistics, American Diabetes Association, http://www.diabetes.org/diabetes-basics/diabetes-statistics/?loc=DropDownDB-stats (last visited June 27, 2012).

[11] Living with Diabetes: African Americans & Complications, American Diabetes Association, http://www.diabetes.org/living-with-diabetes/complications/african-americans-and-complications.html (last visited June 27, 2012).

[12] National Limb Loss Information Center, Minorities, Diabetes and Limb Loss (May 2008), http://www.amputee-coalition.org/fact_sheets/multicultural/all_groups.pdf (citing Robert Preidt, Blacks, Hispanics Hospitalized More Often for Diabetes, Heart Disease, HealthDay: News for Healthier Living, August 15, 2006.

[13] Kathryn Ziegler-Graham et al, Estimating the Prevalence of Limb Loss in the United States: 2005 to 2050, 89 Archives of Physical Medicine and Rehabilitation 422, 424 (March 2008).



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.



The Hidden Energy Costs of School Beverage Vending Machines

Thursday, June 7th, 2012

PHAI has produced a FACT SHEET detailing state-by-state electricity costs of traditional cold beverage vending machines. A traditional cold beverage vending machine consumes an estimated 3000 kilowatt hours of electricity per year (kWh/yr). That translates to an average annual energy cost of $313 per machine. Even more energy efficient machines still use between 1200 and 1500 kWh/yr. When multiplied over the total number of machines housed on school property, the electricity cost required to operate cold beverage vending machines amounts to a significant hidden expense for schools that should be subtracted from school beverage vending revenue and taken into consideration when deciding whether or not to renew a beverage vending contract.

 



PepsiCo Unfairly and Deceptively Targets Teens with Its “Win from Within” Gatorade Campaign

Tuesday, May 8th, 2012

The Public Health Advocacy Institute has submitted a letter to the Federal Trade Commission (FTC) requesting that it use its authority under Section 5 of the Federal Trade Commission Act to investigate PepsiCo’s current “Win from Within” commercial television advertisement and commercial website for its Gatorade sports drink product featuring Michael Jordan’s performance during game 5 of the 1997 NBA Finals (hereinafter “Jordan Ad”) that he played while suffering from a fever and flu-like symptoms. This game is popularly referred to as the “Flu Game.”  The Jordan Ad depicts Mr. Jordan holding a Gatorade cup during the game and asserts that Gatorade was a key to his game-winning performance. Enforcement action is warranted because the Jordan Ad:

The “Win from Within” ad series is designed to target teens, and the campaign is intended to deliver sports nutrition information to teens. PepsiCo’s media buys for the Gatorade Jordan Ad also appear to target teens. The average U.S. teen (12-17 years) saw 1.85 of these ads during the first quarter of 2012, 22% more ads than adults saw. More than half of this exposure occurred on teen-targeted cable networks, including Adult Swim, Teen Nick, ABC Family, and MTV.

PepsiCo has put itself in the position of being a messenger of sports nutrition and health information to its core Gatorade product demographic of teens. There is already enormous pressure on teen athletes to win at all costs by practicing during extreme heat and playing through injuries. The Jordan Ad creates the distinct impression that so long as you are drinking Gatorade you should not sit out a game or stay home when you are seriously ill with a fever. This message contravenes the medical recommendations for people suffering from flu-like symptoms and fever and puts teens in danger. The FTC should order PepsiCo to engage in corrective advertising that advises teens to not engage in physical activity when they have the flu or are suffering from a fever, describes the dangers of competing in sports when ill, and clearly states that Gatorade is not intended to be used to enhance the athletic performance of teens who are suffering from the flu or a fever.

 

 

 

 




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