Soft drinks firms prepare for advertising debate in US

A working group comprising four US government agencies is expected to publish proposed guidelines for food and drink marketed to children next month. Given the industry reaction to the draft guidelines published in December, a lively consultation period is likely to ensue before the guidelines are presented to Congress. Ben Cooper reports.

As part of its commitment to tackling childhood obesity, the Obama administration has been keen for federal government to address the issue of advertising food and drink to children. But the wheels of government grind slowly.

The mooted guidelines - which while voluntary would have the weight of government behind them - involve the coordination of four different agencies: the Federal Trade Commission (FTC), the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA) and the US Department of Agriculture (USDA).

An interagency working group comprising the four agencies was scheduled to publish proposed nutritional standards for food marketed to children early in the year and, following a consultation period, present a report to Congress in July.

The delay is believed to stem from the failure of the FDA, the USDA and CDC to reach agreement on the nutritional criteria of the guidelines. The highly proscriptive draft standards unveiled late last year at an FTC forum drew heavy criticism from industry.

However, Keith Fentonmiller, senior attorney at the FTC's Bureau of Consumer Protection, told just-drinks that the working group could be in a position to publish its proposals next month.  "The agencies have not been able to come up with a proposed standard they all can agree on as of yet but it will happen. I think within the next 30 days it's likely that they'll have agreed on something, and then our commission [FTC] would have to say this is OK to put it out for public comment."

Under ordinary circumstances this could result in a report going to Congress as early as December, though in this instance the process is likely to take longer. Judging by the response to the draft proposals, the guidelines can be expected to attract a significant and detailed response both from industry and other stakeholders, quite possibly requiring an extended consultation period.

Fentonmiller said the intention was to come up with nutritional standards that would be "meaningful and rigorous" but not "so daunting that industry will say we just can't do this".  However, while he said there would be some "tweaking" to make the proposals "a little more palatable" he did not expect the guidelines to be dramatically different from those published in December.

In addition to the fact that the criteria were deemed to be overly draconian, there was concern that addressing advertising targeted at all under-18s, rather than a younger age bracket, was excessive and that the guidelines did not cover advertising of restaurants. The tentative guidelines published in December can be viewed here.

Maureen Enright, assistant director of the Children's Food and Beverage Advertising Initiative (CFBAI), an industry self-regulatory programme, also expects the guidelines not to differ substantially from the draft guidelines.

"I don't really expect them to be markedly different," Enright said. "We really don't know. We've given input but we have no indication from the other side of their thinking."

If they are little changed, the consultation is likely to be a lively affair. "I'm sure if there will be an opportunity to comment and give any additional formal input, we would probably take that opportunity and I imagine some of our participants would do that also," Enright continued.

As to the possible reasons for the delay, Enright said she hoped some consideration was being given to the progress made through self-regulation. "We like to think that there's also some recognition being given to the fact that industry and the CFBAI have been driving change and that there has been change."

This view was echoed by other industry advocates. Tracey Halliday, spokesperson for the American Beverage Association (ABA), said: "We encourage the FTC to review the success that has been achieved through industry self-regulation."

For the Association of National Advertisers (ANA), Dan Jaffe said: "We in the advertising community have been very active in responding to obesity concerns." Jaffe alluded to the "multimillion dollar" investment companies have made in social advertising and education about obesity as well as reformulation. "We are committed to this but we want to make sure that whatever is done is done in a reasonable and sensible and logical manner, and we certainly hope that will be the case when they come forward with the more finalised proposals."

Jaffe said there was strong concern among his members that the draft guidelines had been "ill-considered". He added: "If companies were to voluntarily agree to the standards as presented in draft virtually none of the foods that are advertised would meet the required criteria. When they come out with their proposals they will hopefully have adjusted them." He said he hoped there would be further opportunity to make adjustments during the consultation period.

He also pointed out that while the guidelines as planned would be "voluntary" they would be voluntary requirements set by government. "It's clearly voluntarism with a hammer being held over people's heads," Jaffe said.

Indeed at the forum in December David Vladek, director of the Bureau of Consumer Protection, had said that if the industry response was not satisfactory legislation could be considered.

Chris Waldrop of the Consumer Federation of America said he was not surprised by the delay as such interagency collaboration was "unprecedented" for this type of issue. He said his organisation would also be likely to participate in any consultation process.

However, Enright believes the guidelines would be an additional and unnecessary provision given the self-regulatory steps already taken by industry. She said the CFBAI was "continuing to move the needle", adding: "Even our critics have felt there has been some change, so we don't believe there is a need for standardisation by the Government."

The suggestion from many industry advocates is that there is already plenty of federal involvement in this area without the proposed advertising guidelines. Now would seem to be a good time to put that argument forward as this year sees both the re-setting of the Dietary Guidelines for Americans and the re-ratification of the Childhood Nutrition Act.

The Dietary Guidelines for Americans (DGA) have been published jointly every five years since 1980 by the Department of Health and Human Services (HHS) and the USDA. They will be formally issued later this year following an ongoing consultation in which industry groups, including the ABA, are participating.

This year should also see the re-ratification of the Childhood Nutrition Bill which establishes national nutrition standards in line with the DGAs for all foods sold in schools. This was passed by the Senate earlier this month and will now go before the House where it is also expected to be approved. This legislation has been expanded in light of the battle against childhood obesity.

However, while industry may try to make a case for there already being enough legislation, the Obama administration's strong views on childhood obesity suggest there will be continued pressure from the White House to follow through on the implementation of the advertising guidelines, in spite of a possible lack of inter-agency consensus on how strict the limits should be and industry opposition.