US drinks manufacturers have launched uniformed, voluntary guidelines for food and drink products marketed to children in a response to mooted government voluntary standards. Ben Cooper examines whether the industry move can forestall government action.

Last week marked the closure of a consultation on the US government's proposed voluntary guidelines for the marketing of food and beverages to children.

The process of establishing these guidelines, developed by a working group comprising the Federal Trade Commission (FTC), the US Department of Agriculture (USDA), the Food and Drug Administration (FDA) and the Centers for Disease Control and Prevention (CDC), is now at a critical stage.

With the Obama administration making the battle against childhood obesity a key priority, the convening of the Interagency Working Group (IWG) in 2009 was greeted with trepidation by food and drink companies, which currently spend an estimated US$2bn a year marketing their products to children.

Their trepidation turned out to be justified when the IWG's proposals, officially published at the end of April when the consultation began, looked to place stringent limitations on which products could be marketed to children.

The proposed guidelines would affect a large majority of the products currently marketed to children, though precise estimates vary. To remain within the guidelines, companies would have to reformulate or cease marketing them to children by 2016. They have been dubbed as unrealistic and unworkable by industry organisations.

The industry’s response has been two-pronged, involving beefing up its own self-regulatory provisions and lobbying.

Last week, the Children's Food and Beverage Advertising Initiative (CFBAI), a self-regulatory programme involving 17 food and drinks corporations launched in 2006, published new, uniformed guidelines. Drinks firms involved in the initiative include The Coca-Cola Co and PepsiCo.

Elaine Kolish, the CFBAI's director, described the guidelines as a "groundbreaking agreement" which would "bring real change". She said the fact that the guidelines were category-specific, with separate requirements across ten different food and drinks categories, represents an advantage over the "one size fits all" IWG proposals.

"We recognise the nutritional compositional differences among food and drink categories and the roles they play in the diet," Kolish said. Critics say the sub-division allows for less strict requirements on key constituents of concern.

Another distinction is that the CFBAI guidelines only cover advertising to children under 12 whereas the IWG was briefed to look at an age range of 2 to 17 years. "We continue to think that children and adolescents are very different and our self-regulation effort is going to continue to focus on children under 12," Kolish said.

The fact that one in three products would have to be reformulated underlined that they are "tough criteria", Kolish insisted. By contrast, she said "virtually every" product would be affected by the IWG criteria, adding that it had "vastly underestimated" the challenges involved in reformulation.

Encouragingly for the industry, FTC chairman Jon Leibowitz said the CFBAI standards represented "a significant advance", adding that the IWG "should carefully consider" them with other stakeholder comments as it develops its final recommendations. "We applaud industry for making healthy progress," he added.

Margo Wootan, director of nutrition policy at the Center for Science in the Public Interest (CSPI), said the CFBAI's move to adopt uniformed guidelines, replacing the much-criticised previous system of each company declaring its own criteria, was a "good step forward". 

However, Wootan remained concerned that the proposals did not have sufficiently exacting positive nutritional requirements for food and drinks to be marketed to children. In particular, they would permit advertising of products containing high levels of salt or sugar if they had been simply fortified with a vitamin. "It opens up a huge loophole because simply by adding vitamins the company can say that a food is healthful even if it is not."

Wootan said she was not opposed in principle to separate limits for different drinks, provided "the standards are strong for those categories". The CSPI estimates 25% rather than a third of food and drink products would require reformulation under the CFBAI's criteria and that around 80% of products would not meet the government proposals.

The fact that the industry guidelines will affect far fewer products underlines that they are more permissive. However, the companies would be committed to implementing them by 2013, three years ahead of the government target. This will be among the points being made by lobbyists striving on the industry's behalf to have the work of the IWG curtailed, delayed or abandoned. 

The IWG will now review all comments, including the new CFBAI standards, and make its final recommendations to Congress. "The IWG hopes to submit its final recommendations in a report to Congress by the end of this year," FTC spokesperson Betsy Lordan told just-drinks.

However, a clause added to a House appropriations bill for 2012 by Rep. Jo Ann Emerson (R-Mo.) would stop any further funding of the IWG. Dan Jaffe of the Association of National Advertisers said: "The Emerson language has passed her subcommittee and the House appropriations committee but has not been taken up by the full House. We expect a vote sometime this summer." Even if the clause gets through the House of Representatives, Wootan believes it will not be passed by the Senate, which remains under Democrat control.

When asked about the prospect of the IWG's work being suspended, Lordan said she did not know the status of the clause concerned and that the IWG still hopes to submit its recommendations by the end of the year.

It is easy to see the logic behind the industry's twin-track strategy. While the CFBAI promotes guidelines that go some way to addressing criticisms, lobbyists will rail about government overreach, the burden of "backdoor regulation" on industry and suggest government action should be put on hold while the effectiveness of the revamped self-regulatory provision is assessed. 

Bear in mind also that the Government's approach is predicated on self-regulation. The IWG working paper bears the subtitle "Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts". 

Leibowitz said the FTC was committed to playing its role in reducing childhood obesity "in a pragmatic, non-regulatory way", and that the CFBAI guidelines "are exactly the type of initiative the Commission had in mind when we started pushing for self-regulation more than five years ago". 

In any event, the final guidelines would still need to be put before Congress to go any further. "It will be up to Congress to decide what it wishes to do with the recommended voluntary guidelines," Lordan explained.

There would certainly be more industry lobbying at this point before any voluntary guidelines could be ratified and the same arguments would be rehearsed.

The fact that the industry is aiming to comply with its guidelines by 2013 may yet prove a critical factor. Kolish says she does not want the CFBAI's programme to be seen as an interim measure but, while the CFBAI project has its own substantive aims, it could also buy the industry some time. 

Rather than embarking on the process of establishing a set of tighter voluntary guidelines which may not be fully complied with, the Government could choose to leave the IWG's final report in abeyance and challenge the industry to comply fully with the CFBAI voluntary guidelines in the allotted timeframe. It may be losing little in doing this as it could retain the option to ask industry to raise its own standards further, moving closer to the criteria established by the IWG, with the threat of government guidelines being placed back on the agenda always in the background.

Campaigners would not be happy, but at a time when public spending budgets are tight and President Obama's opponents play the 'small government' card at every opportunity, the benefits of a ready-made, industry-sponsored self-regulatory programme, undertaking to produce results – albeit for less exacting targets – sooner than the mooted government guidelines, may yet prove compelling.