Breastfeeding protects against overweight and obesity, asthma, eczema, and type-II diabetes, and has long-term health benefits for women. The health benefits of breastfeeding are so valuable that in 1981, the World Health Organization established the International Code of Marketing of Breast-Milk Substitutes (WHO Code) that prohibits marketing infant formula to the public. The U.S. has not adopted the WHO Code and currently has few protections from most digital marketing to adults. As a result, the vast amount of consumer data expectant parents and infant caregivers generate as they navigate daily life can be used to target them with digital advertising for infant formula.
This report explores the policy frameworks and self-regulatory bodies that govern the use of sensitive consumer information about pregnancy and infant feeding used to market infant formula. It addresses the following questions:
How do marketers identify expectant parents and infant caregivers?
What digital marketing tactics are used to promote infant formula?
What laws and policies govern the collection and use of consumers’ pregnancy and infant-feeding-related information?
What role do company privacy policies and user agreements play?
How can self-regulation be used to limit infant formula marketing?
The report contains recommendations for how to better protect the public from infant formula marketing by the infant formula industry and through third-party retailers and digital platforms like Facebook and Google. Issue briefs on the topics of Consumer Privacy, Self-Regulation and Recommendations for Action summarize key findings from the full report.
PHAI Senior Staff Attorney Cara Wilking’s article, State Law Approaches to Curtail Digital Food Marketing Tactics Targeting Young Children, has been published in the January/February, 2014 issue of the Food and Drug Law Institute’s Update Magazine. In the article, Wilking describes why digital marketing, which is inherently deceptive to younger children. She explains the role of packaging, “advergames,” and digital sweepstakes in digital marketing.
Wilking concludes that these practices may trigger specific consumer protection law provisions and case law precedent around unfair and deceptive trade practices and looks to state attorney generals to take steps to stop these practices.
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.
Nickelodeon, the biggest source of food ads seen by youth, has augmented its media empire through websites, mobile apps and programming that imports content from a popular YouTube channel. All of its digital platforms are ad-supported creating new opportunities for food and beverage companies to target youth.
Digital campaigns are seamlessly woven into food packaging allowing marketers to target youth in supermarkets, convenience stores and fast food restaurants. Packaging often directs youth to digital marketing on mobile devices or online. State regulators have jurisdiction over unfair and deceptive marketing on food packages sold to consumers in their states.
Mobile marketing elements are integrated into food and beverage campaigns. The legal landscape for state oversight of mobile marketing includes federal and state SPAM and telemarketing laws, and the emerging regulation of geolocation tactics.
States are authorized to protect child privacy under federal law and have successfully done so, but teens are not covered by child privacy laws. State attorneys general can fill the teen privacy gap using their general consumer protection authority to ensure that company promises to protect privacy are honored and that teens are not duped into sharing personal information.
Facebook remains the dominant social media platform for teens. Teens growing use of social media has resulted in them being less privacy savvy. Food companies exploit this by prompting teens to login to their websites and participate in promotions via Facebook thereby granting marketers access to vast amounts of personal information.
Digital sweepstakes and contests are in widespread use by the food industry with children as young as 6 years old. Despite repeated enforcement actions by the Children’s Advertising Review Unit (a self-regulatory body); food companies continue to conduct digital promotions with children that exploit their inability to understand that a free means of entry exists or their odds of winning a prize. State attorney general action is needed to augment these self-regulatory efforts to protect children from predatory promotions.
Senior Staff Attorney, Cara Wilking, who was lead author of the report, noted that, “state attorneys general are in a unique position to leverage state law approaches to stop unfair, deceptive, or otherwise illegal digital marketing of unhealthy foods to our youngest and most vulnerable consumers.”
PHAI’s Executive Director, Mark Gottlieb, added, “there is a general failure to understand the disturbing marketing practices that are becoming commonplace in the digital marketing world. This report goes a long way toward closing the knowledge gap between those using powerful technology to sell junk to kids and those who have the responsibility to protect them.”
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).
It has been nearly 15 years since Congress enacted the Children’s Online Privacy Protection Act (COPPA). In that time, marketing in a digital world has become ubiquitous and, often, indistinguishable from other content. An essential part of this transformation of marketing involves providing a a surprisingly wide variety of information about the users to advertisers and content providers, usually without their knowledge.
When COPPA was created, data mining and other sophisticated data collection techniques did not exist. Nor did the variety of platforms we see today, including mobile “geo-aware” computing platforms that can track one’s location through global positioning satellite as well as Wi-Fi technology. Currently the Federal Trade Commission is proposing to update the rules of children’s online privacy protection to better accomplish what COPPA was designed to do: ensure that children’s privacy is not compromised absent parental consent.
PHAI’s senior staff attorney, Cara Wilking, appeared on KPCC radio’s Airtalk on October 1 to discuss the updating of COPPA by the FTC. Listen to the podcast here.