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PHAI Releases Major Report on Digital Food Marketing to Youth: Urges State Attorneys General to Act

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:

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.”

State Law Approaches to Address Digital Food Marketing to Youth Report

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).

 

 



PHAI Publishes Legal Issue Brief on Digital Viral Food Marketing to Kids

Friday, March 8th, 2013

viral_digital_food_marketing_brief_graphic

Food companies used viral digital marketing tactics, such as “tell-a-friend” web campaigns, to induce children to share e-mail addresses of their friends and spread brand advertising of unhealthy foods among their peers.  Even very young children are targeted by these campaigns, which may be considered unfair and deceptive and in violation of state consumer protection laws.

PHAI has prepared a legal issue brief on this topic for state attorneys general as well as stakeholders in children’s health and privacy.  The brief explains the tactics that are used and suggests ways that they can be addressed, particularly under state law.

This work was supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#69293).



Arkansas State Consumer Protection Profile

Tuesday, March 1st, 2011

Download the Arkansas State Consumer Protection Profile (pdf)

Which state consumer protection provisions could be used to protect consumers from junk food marketing?

The Arkansas Deceptive Trade Practices Act (“ADTPA”) generally prohibits unconscionable, false and deceptive trade practices. Ark. Code §§ 4-88-107. It is unlawful to “[k]nowingly making a false representation as to the characteristics, ingredients, uses, benefits, alterations, source, sponsorship, approval, or certification of goods . . . .” Ark. Code §§ 4-88-107(1).  With respect to the sale or advertisement of any good, the ADTPA outlaws: “(1) The act, use, or employment by any person of any deception, fraud, or false pretense; or (2) [t]he concealment, suppression, or omission of any material fact with intent that others rely upon the concealment, suppression, or omission.” Ark. Code §§ 4-88-108.

The ADTPA also makes it illegal  to “[k]nowingly tak[e] advantage of a consumer who is reasonably unable to protect his or her interest because of (A) [p]hysical infirmity, (B) [i]gnorance, (C) [i]lliteracy, (D)

[i]nability to understand the language of the agreement,  or (E) [a] similar factor.” Ark. Code § 4-88-107(8).

Does Arkansas law provide any special protections for child consumers?

The ADTPA’s provision outlawing knowingly taking advantage of consumers who are reasonably unable to protect their own interests is a potentially powerful protection for child consumers. Children, by virtue of their age may be ignorant of the distinction between advertising and non-commercial content, they may be fully or partially illiterate, and unable to understand disclaimers and terms of contests and promotions. In addition, food marketing targeted at children typically is blatantly aimed at a certain age group making it easier for a plaintiff to establish that the defendant “knowingly” sought to take advantage of that group.

Who can bring a lawsuit?

The Attorney General, private consumers and classes of private consumers can file suit.

What needs to be shown to make out a claim?

A plaintiff must show (1) a false, unconscionable, or deceptive act, (2) actual damages  and (3) the act was the proximate cause of the injury alleged. Ark. Code § 4-88-113(f); Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 666 (Ark. 2009).  A showing of intent to deceive is only required in limited cases. There is no definitive ruling under Arkansas law as whether reliance is a required element.

What are the powers of the Attorney General to protect kids from junk food marketing?

The Arkansas Attorney General may seek injunctive relief, Ark. Code § 4-88-104, investigate, Ark. Code §§ 4-88-105, 4-88-111, seek restitution for affected consumers, Ark. Code §§ 4-88-113, and petition a court for civil penalties of up to $10,000 per violation, Ark. Code §§ 4-88-113.

How does the law compensate consumers?

A plaintiff may recover actual damages. Ark. Code § 4-88-113(f).

Who is liable for attorney’s fees?

A successful private plaintiff may recover attorney’s fees. Ark. Code § 4-88-113(f).

DISLCAIMER: This legal summary is for informational purposes only. Please consult an attorney for legal advice. All information reflects legal research conducted in 2010.

Supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968).



Arizona State Consumer Protection Profile

Tuesday, March 1st, 2011

Download the Arizona State Consumer Protection Profile (pdf).

Which state consumer protection provisions could be used to protect consumers from junk food marketing?

Arizona’s Consumer Fraud Act (“CFA”) prohibits “[t]he act, use or employment by any person of any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact . . . in connection with the sale or advertisement of any merchandise . . . .” Ariz. Rev. Stat. § 44-1522. Under Arizona law, advertisement “includes the attempt by publication, dissemination, solicitation or circulation, oral or written, to induce directly or indirectly any person to enter into any obligation or acquire any title or interest in any merchandise.” Ariz. Rev. Stat. § 44-1521.

Does Arizona law provide any special protections for child consumers?

The CFA has no specific provision protecting children as vulnerable consumers. The CFA’s definition of “advertisement” does include indirect and direct attempts to induce consumers to buy products. Ariz. Rev. Stat. § 44-1521. Advertising aimed at children intended to generate “pester power” whereby children pester their parents into buying a product for them is a classic form of “indirect” food marketing. The inclusion of indirect marketing practices in the definition of “advertisement” may prove beneficial to consumers in cases where deceptive advertising is aimed at children but the parent is the ultimate purchaser.

Who can bring a lawsuit?

The Attorney General, private consumers and classes of private consumers can file suit under the CFA.

What needs to be shown to make out a claim?

A plaintiff must show that the defendant committed a deceptive or fraudulent act in connection with the sale of merchandise and that he or she was injured (suffered damages) as a result. Howell v. Midway Holdings, Inc., 362 F.Supp.2d 1158, 1164 (D. Ariz. 2005) (citing Dunlap v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338, 342 (Ariz. App. 1983)). The CFA requires a showing that the defendant acted with intent when the misconduct alleged involves concealment, suppression or omission of a material fact. Ariz. Rev. Stat. § 44-1522. For private actions, the Arizona courts have interpreted the CFA to require a basic showing of reliance on the deception by the consumer.  See, Peery v. Hansen, 585 P.2d 574, 577 (Ariz. App. 1978), and Siemer v. Associates First Capital Corp., 2001 WL 35948712 (D. Ariz. 2001).  Arizona courts have held, however, that a private plaintiff’s reliance need not be reasonable: “An injury occurs when a consumer relies, even unreasonably, on false or misrepresented information.” Kuehn v. Stanley, 91 P.3d 346, 351 (Ariz. App. Div., 2004). See also, Stratton v. American Medical Sec., Inc., 266 F.R.D. 340, 348 (D.Ariz., 2009).

What are the powers of the Attorney General to protect kids from junk food marketing?

The Arizona Attorney General has the power to investigate, Ariz. Rev. Stat. § 44-1524, issue subpoenas, Ariz. Rev. Stat. § 44-1526, conduct hearings, Ariz. Rev. Stat. § 44-1526, promulgate procedural rules, Ariz. Rev. Stat. § 44-1526, and seek injunctive relief and restitution for consumers, Ariz. Rev. Stat. § 44-1528,  and petition the court for up to $10,000 in civil penalties for willful violations of the CFA, Ariz. Rev. Stat. 44-1531(A).  The Attorney General may seek restitution for affected consumers. Ariz. Rev. Stat. § 44-1528(A)(2).

 

How does the law compensate private plaintiffs?

Private individuals are entitled to actual damages. Dunlap v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338, 342 (Ariz. App. 1983). In rare cases, a court may award punitive damages if the wrongdoer’s conduct “is wanton or reckless, shows spite or ill will or where the conduct demonstrates a reckless indifference to the interests of others.” Dunlap v. Jimmy GMC of Tucson, Inc., 136 Ariz. 338, 343 (Ariz. App. 1983).

Who is liable for attorney’s fees?

The Attorney General is entitled to attorney’s fees for prevailing in an action brought under the CFA. Ariz. Rev. Stat. § 44-1534. Consumers are not entitled to attorney’s fees for actions under Arizona’s CFA. Sellinger v. Freeway Mobile Home Sales, Inc., 521 P.2d 1119, 1123 (Ariz. 1974).

DISLCAIMER: This legal summary is for informational purposes only. Please consult an attorney for legal advice. All information reflects legal research conducted in 2010.

Supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968).



Alaska State Consumer Protection Profile

Tuesday, March 1st, 2011


Download full Alaska State Consumer Protection Profile
(pdf)

Which state consumer protection provisions could be used to protect consumers from junk food marketing?

Alaska’s Unfair Trade Practices and Consumer Protection Act (“UTPCPA”) is modeled off of the Federal Trade Commission Act (“FTCA”). In general it prohibits “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce . . . .” Alaska Stat. § 45.50.471(a). Specific prohibitions that could apply to food marketing include trade practices that:

Cause a “likelihood of confusion or misunderstanding as to the source, sponsorship, or approval, or another person’s affiliation, connection, or association with or certification of goods or services.” Alaska Stat. § 45.50.471(b)(3);

Represent that “goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have.” Alaska Stat. § 45.50.471(b)(4);

Represent “that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.” Alaska Stat. § 45.50.471(b)(6);

Engage in “any other conduct creating a likelihood of confusion or of misunderstanding and which misleads, deceives or damages a buyer or a competitor in connection with the sale or advertisement of goods or services.” Alaska Stat. § 45.50.471(b)(11); and

Use or employ “deception, fraud, false pretense, false promise, misrepresentation, or knowingly concealing, suppressing, or omitting a material fact with intent that others rely upon the concealment, suppression, or omission in connection with the sale or advertisement of goods or services whether or not a person has in fact been misled, deceived or damaged.” Alaska Stat. § 45.50.471(b)(12).

Does Alaska law provide any special protections for child consumers?
Alaska’s UDTPCA has no specific provision protecting children as vulnerable consumers. Alaska courts give great weight to interpretations of the federal FTCA, Defense Research Institute (DRI), Unfair Trade Practices: A Compendium of State Law 20 (2005), and the Federal Trade Commission has recognized an exception from the general “reasonable person” standard for FTCA actions when advertising is aimed at a vulnerable or particularly susceptible audience. Federal Trade Commission, See Deception Policy Statement, appended to In re Cliffdale Assocs., Inc., 103 F.T.C. 110, 177 (1984), http://www.ftc.gov/bcp/policystmt/ad-decept.htm. This lesser standard should be applied when children, who by their very nature are particularly susceptible, are the target audience of food advertising.

Who can bring a lawsuit?
The Attorney General, private consumers and classes of private consumers can file suit.
What needs to be shown to make out a claim?
Plaintiffs must establish a prima facie case: “(1) that the defendant is engaged in trade or
commerce; and (2) that in the conduct of trade or commerce, an unfair act or practice occurred.”
Odom v. Fairbanks Memorial Hosp., 999 P.2d 123, 132 (Alaska 2000) (internal citations
omitted). A plaintiff need not suffer actual injury. Rather, “all that is required is a showing
that the acts and practices were capable of being interpreted in a misleading way.” Odom
v. Fairbanks Memorial Hosp., 999 P.2d 123, 132 (Alaska 2000). In a private action, a plaintiff
must suffer an “ascertainable loss of money or property.” Alaska Stat. § 45.50.531(a).
A showing of reliance is not required. Odom v. Fairbanks Memorial Hosp., 999 P.2d 123, 132
(Alaska 2000). A showing of intent to deceive is only required when a claimant alleges that a
defendant knowingly concealed, suppressed or omitted a material fact. Alaska Stat. §
45.50.471(b)(12) (expressly requiring the actor to possess the requisite intent).
What are the powers of the Attorney General to protect kids from junk food marketing?
The Alaska Attorney General has the power to investigate and enforce the UDTPCA. The Attorney
General may issue an injunction, Alaska Stat. § 45.50.501, and may petition the court for
civil penalties of not less than $1,000 and not more than $25,000 per violation of an injunction
or restraining order. Alaska Stat. § 45.50.551)(a). The Attorney General may pursue civil
penalties of up to $5,000 per violation of the UDTPCA. Alaska Stat. § 45.50.551(b). The Alaska
Attorney General may also promulgate rules under the UDTPCA. Alaska Stat. § 45.50.491. Current
rules, however, do not pertain to food marketing, but rather involve regulation of insurance,
retail, and mortgage sales.

How does the law compensate consumers?
Under Alaska law, private plaintiffs may recover treble damages: plaintiffs may recover “for
each unlawful act or practice three times the actual damages or $ 500, whichever is greater.”
Alaska Stat. § 45.50.531(a). If, however, “a person receives an award of punitive damages
[treble damages] . . . the court shall require that 50 percent of the award be deposited into
the general fund of the state.” Alaska Stat. § 45.50.531(i). Other relief is available at the discretion
of the court. Alaska Stat. § 45.50.531(i). Private parties may seek injunctive relief.
Alaska Stat. § 45.50.535.

Who is liable for attorney’s fees?
A successful plaintiff is entitled to reasonable attorney’s fees. Alaska Stat. § 45.50.537(a). If
the court finds the action was frivolous, the plaintiff will be liable for defendant’s attorney’s
fees. Alaska Stat. § 45.50.537(b).
DISLCAIMER: This legal summary is for informational purposes only. Please consult an attorney for legal advice. All information reflects legal research conducted in 2010.

Supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968).



Alabama State Consumer Protection Profile

Thursday, February 24th, 2011


Download the full Alabama State Consumer Protection Profile
(pdf)

Which state consumer protection provisions could be used to protect kids from junk food marketing?

The Alabama Deceptive Trade Practices Act (“DTPA”) prohibits deceptive acts including:

 

The DTPA also contains a catch-all provision that prohibits “[e]ngaging in any other unconscionable, false, misleading, or deceptive act or practice in the conduct of trade or commerce.” Ala. Code § 8-19-5(27). When construing the DTPA courts are to give “due consideration and great weight” to interpretations of the Federal Trade Commission and the federal courts relating to relevant portions of the Federal Trade Commission Act. Ala. Code § 8-19-6.

Does Alabama law have any special protections for child consumers?

The DTPA does not have any special provisions dealing with child consumers. It does direct state courts to be guided by interpretations given by the FTC and the federal courts. The Federal Trade Commission has recognized an exception from the general “reasonable person” standard for FTCA actions when advertising is aimed at a vulnerable or particularly susceptible audience. Federal Trade Commission, See Deception Policy Statement, appended to In re Cliffdale Assocs., Inc., 103 F.T.C. 110, 177 (1984), http://www.ftc.gov/bcp/policystmt/ad-decept.htm. This lesser standard should be applied when children, who by their very nature are particularly susceptible, are the target audience of food advertising.

Who can bring a lawsuit?

The Attorney General, and individual consumers may file suit. Class actions brought by consumers are not permitted, but the Attorney General may file class actions in a representative capacity to recover actual damages on behalf of consumers. Ala. Code § 8-19-10(f).

 

What needs to be shown to make out a claim?

In order to make out a claim under the DTPA a plaintiff must allege that the defendant committed an act declared unlawful by the DTPA and that act caused the plaintiff monetary damages. Ala. Code § 8-19-10(a). While not all of the enumerated violations of the DTPA require that the unlawful act be committed knowingly, the statute contains a “defense” provision whereby a defendant may defend a claim “upon a showing by a preponderance of the evidence . . . that such person did not knowingly commit any act or knowingly engage in any activity which constitutes a violation of any provision of this chapter.” Ala. Code § 8-19-13. Thus, plaintiffs should be able to establish that the act was committed knowingly.

What are the powers of the Attorney General to protect kids from junk food marketing?

The Attorney General may conduct investigations and enforce the DTPA by seeking injunctive relief, monetary damages, and civil penalties of up to $25,000 for violations of an injunction and up to $2,000 for violations of the DTPA committed knowingly.  Ala. Code § 8-19-4(a); Ala. Code § 8-19-8; Ala. Code § 8-19-11.

How does the law compensate consumers?

Prevailing consumers shall be awarded actual damages or $100, whichever is greater or up to three times any actual damages in the court’s discretion. Ala. Code § 8-19-10(a).

Who is liable for attorney’s fees?

The court shall award prevailing consumers costs and reasonable attorney’s fees.  Ala. Code § 8-19-10(a)(3). The court also has the discretion to award a defendant reasonable attorney’s fees and costs upon a finding that an action was frivolous or brought in bad faith. Ala. Code. § 8-19-10(a)(3).

DISLCAIMER: This legal summary is for informational purposes only. Please consult an attorney for legal advice. All information reflects legal research conducted in 2010.

Supported by the Robert Wood Johnson Foundation’s Healthy Eating Research Program (#66968).

 




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