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:
- Research demonstrates that digital marketing is harder for children to identify than traditional television advertising, heightening the need for regulatory oversight.
- 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.”
- Executive Summary
- Why Digital Marketing Is Different
- Packaging: Digital Marketing at the Moment of Truth
- Personal Jurisdiction
- Mobile Food & Beverage Marketing
- Facebook Advertising
- Incentives-Based Interactive Food & Beverage Marketing
- Appendix: State Law Profiles
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).