Congress to Kids: Drop Dead

Last month, when Congress declared pizza a vegetable, it was hard to believe things could get much worse. But never underestimate politicians’ ability to put corporate interests ahead of children’s health. In the massive budget bill just passed, Congress stuck in language to require the Federal Trade Commission to conduct a cost/benefit analysis before finalizing a report that would provide the food industry with science-based nutrition guidelines for marketing to children. Experts from four federal agencies put heads together, and for the past two years have tried to complete its charge (which ironically, came from Congress in the first place) amidst powerful industry push-back.

An objective approach is badly needed because Big Food’s own lame voluntary rules allow such sugar atrocities as Reese’s Puffs cereal and Kool-Aid to be marketed to kids. But this latest political delay tactic makes no sense because it’s entirely voluntary for industry to adopt any final guidelines. As Margo Wootan, nutrition policy director for the Center for Science in the Public Interest, noted:

Doing a cost-benefit analysis makes sense for regulations that require companies to actually do something. But there is no cost associated with something that is totally voluntary.

Where then, is this idea coming from? Specifically, before its report is made final, FTC must now attempt to comply with Executive Order 13563. What’s that? Bear with me, as some history is in order.

The order derives from a nasty right-wing deregulation policy that dates back (surprise!) to the Reagan administration. The Office of Information and Regulatory Affairs (OIRA) may sound innocuous, but over the past 30 years, it has become the best tool Corporate America has to kill proposed rules it doesn’t like. It acts as a gigantic hoop an agency must jump through to prove societal benefits outweigh economic costs, tacked on to an already stringent regulatory rule-making process. Here’s how Huffington Post Washington correspondent Dan Froomkin explains it:

OIRA analysts are supposed to rigorously examine proposed regulations and reject or revise them as necessary, based on interagency concerns and whether the costs of policy proposals outweigh their benefits.

This “regulatory bottleneck by design” has been a huge success for business interests over the years:

Since Ronald Reagan opened the OIRA office in 1981, Republicans have used it to particular advantage to pursue an anti-regulatory agenda, defanging environmental rules on things like water runoff and climate change — even blocking attempts to collect information that might lead to regulations.

Despite promises by President Obama to develop a new approach and some positive efforts early on to reverse Bush-era oppressive policies, this past January the White House, as Froomkin explains: “finally issued a limp executive order that basically reaffirmed the principles that had been guiding the office for years.” So much for change. The effect has been that all “significant executive-branch regulations” must get approval from OIRA before being proposed or finalized. That’s some bottleneck. (For more on deregulation and its impacts on health and safety under the Obama administration see OMB Watch.)

Which brings us back to junk food marketing to children. Remember, any final federal recommendations on nutrition guidelines would be voluntary. The entire process was never to result in regulations. This summer, FTC’s David Vladeck, director of the Bureau of Consumer Protection, wrote a frankly worded and humorous blog post in response to a massive industry freak-out led by the advertising lobby warning of “suppression of unprecedented amounts of advertising” to children. (Wasn’t that the idea?)

Vladeck tried to calm industry fears by explaining the FTC is just reporting to Congress, which “provides no basis for law enforcement action.” He repeated: “This is a report to Congress, not a rulemaking proceeding, so there’s no proposed government regulation.” And he added, just in case industry still didn’t get it: “A report is not a law, a regulation, or an order, and it can’t be enforced.” (my emphasis)

If you’re still with me, even if you didn’t attend law school, you may be wondering by now, how could Congress require that an executive order intended for proposed agency regulations apply to a report that “provides no basis for law enforcement action?”

Good question. I’ve been asking a few of my lawyer colleagues the same thing and they agree it makes no legal sense. Public health attorney Mark Gottlieb, executive director of the Public Health Advocacy Institute, which also fights the tobacco industry, told me he thinks the executive order only applies to formal rule-making and “does not seem to apply to promulgation of voluntary guidelines that go to great pains to avoid regulating industry.”

In other words, FTC is likely on solid legal ground to go ahead and release its final report to Congress without conducting any cost/benefit analysis. But I doubt we will ever see the final report. (We do have the proposed version, which can still be used to stick it to industry, as the Environmental Working Group recently did in its damning report on sugary cereals.)

This wouldn’t be the first time Congress overstepped its legal boundaries. As I argued with the pizza-as-vegetable debacle, Congress hijacked the USDA regulatory process to do the food industry’s bidding. Here, it’s not exactly the regulatory process that’s been superseded, because the report FTC is trying to release is voluntary, but Congress is just as wrong.

Apparently, it wasn’t enough for the food, advertising, and media industries to spend $37 million lobbying this year to get its way. Nor has the multi-year delay of this entire process thanks to ongoing corporate bullying sufficed. How about making bogus “job loss” claims or (for the top Chutzpah Award) warning that we’d have to import more produce if kids actually ate their fruits and vegetables? Still not enough.

Industry keeps right on lobbying, it’s what they do best. And for Congress, it’s just business as usual. But the very real consequence of maintaining the status quo is that children will continue to be exploited for their emotional vulnerability, while getting lured into bad eating habits that can last a lifetime.

Cost/benefit analysis? Industry benefits, while children pay the cost.

Postscript: Thanks to CSPI’s Margo Wootan for sharing this take action link – tell the Obama administration, don’t let Congress and the food industry win this fight.

Read more!

Sorry Mrs. O, but jumping jacks aren’t enough

At a recent summit on childhood obesity, the first lady announced a shift in her well-known Let's Move campaign -- away from food reform and toward an increased focus on exercise. Instead of "forcing [children] to eat their vegetables," she told her audience, "it's getting them to go out there and have fun."

Yes, you heard that right. The first lady actually said that eating vegetables is a chore. And that playing is a preferable focus for her campaign because it's easier.

In February 2010, when the first lady announced a campaign to "end childhood obesity within a generation," I was immediately skeptical. I worried that "Let's Move" signaled an over-emphasis on physical activity, a much safer political issue than eating habits, and one that Big Food gladly embraces.

But when I took a closer look, I was pleasantly surprised to see that three of the four issues areas initially identified by the campaign were food-related. (A fifth issue has since been added.) The goals or "pillars" of the campaign are: 1) improving access to healthy, affordable food; 2) providing healthy food in schools; 3) empowering parents and caregivers; 4) increasing physical activity; and 5) creating a healthy start for children.

It's hard to argue with any of those worthy causes, and it's important to have the first lady bring attention to issues such as food deserts, and to serve as a national spokesperson in a way we've not seen before. I have also given praise where praise was due, such as when the first lady recommended -- as part of a checklist for daycare centers to follow -- significant limits on screen time for children.

And while the White House insists that food is very much still on the agenda, it's hard to ignore the potential for politics going into an election year. (When New York University professor Marion Nestle recently dared to question the first lady's renewed emphasis on exercise, she got set straight by White House chef and Let's Move advisor Sam Kass; that's how touchy this subject is.)

Exercise is fun, but it doesn't match the science

Putting politics aside for a moment, let's talk research, which can often get lost in the shuffle or, worse, distorted by corporate interests.

Obesity expert Dr. Yoni Freedhoff, assistant professor of family medicine at the University of Ottawa, says the first lady's focus on physical activity to help "end childhood obesity in a generation" is misguided. More importantly, he says, it's not evidence-based.

He pointed me to many scientific studies showing that physical activity, while important for other reasons, has not been shown to be effective in preventing childhood obesity. (See here, here, here, and here.) On the contrary, data shows that an increase in food intake alone explains the rise in obesity in children.

Children's diets have changed so drastically in the last few decades, with the increase in calories, for example, due to soda and fast food so large, that moderate increases in exercise are not likely to make a difference.

As Freedhoff explains, it's a "testament to the simple fact that it's far more difficult to burn calories than it is to consume them."

To be clear, exercise does have many health benefits; it just shouldn't be used to distract us from overconsumption and marketing of junk food. Also, lots of skinny kids suffer from diet-related health problems, including allergies.

So if science isn't driving the exercise bandwagon, what is?

Playing it safe

After nearly two years, it's clear that Let's Move is steering away from anything that challenges the food industry. In fact, the campaign organizers appear eager to form corporate partnerships. For example, the first lady hailed Walmart's so-called "healthy food initiative" as a new "nutrition charter." Of course, Walmart hasn't exactly kept its promises when it comes to the environment, so we have little reason to trust the company when it comes to nutrition.

Moreover, the first lady's deafening silence over the past few months during extremely heated public battles over children's diets gives us more proof than we ever needed that she is either unwilling or unable to take on the hard political issues.

While Mrs. Obama certainly showed leadership last year to help pass the Healthy, Hunger-Free Kids Act to improve school food, she hasn't followed through. The recent hostile takeover of the USDA's school food regulations by Congress on behalf of the frozen food lobby was one such example.

From the beginning, Let's Move has also been mostly MIA on the extremely contentious and intractable problem of junk food marketing to children.

In one exception, the first lady gave a strong speech in March 2010 to the Grocery Manufacturers Association (Big Food lobbyists) imploring food companies to clean up their act. At the time, she asked: "What does it mean when so many parents are finding that their best efforts are undermined by an avalanche of advertisements aimed at their kids?"

But her admonishments had little impact. Instead, the food industry has launched a no-holds-barred attack on an attempt by the federal government to place reasonable, science-based, voluntary restrictions on food marketing to children.

To make its case to the feds, kids' cereal giant General Mills went so far as to argue that getting kids to eat more fruits and vegetables would hurt the nation's economy because food costs "would increase by a staggering amount."

The argument was based on a bogus economic study, which warned that demand for fruits and vegetables would skyrocket, resulting in almost $500 billion more spent on imported food and $30 billion less on domestically grown grain. As Donald Cohen, who recently uncovered this absurd claim, noted:

Even if the voluntary guidelines were that effective and their study was accurate, it's audacious marketing spin to turn an overwhelmingly positive victory for public health into a big government, job killing attack on freedom.

This one-two punch comes from the very industry players with whom Mrs. Obama claimed she could "find common ground." And it has left many advocates feeling defeated.

So when, instead of speaking out on behalf of the millions of children who will continue to be served french fries and pizza in school and get bombarded daily with Happy Meal ads, the first lady announces (as she did this week) that Let's Move has broken a record for jumping jacks, it's disappointing to say the least.

Here's what Freedhoff had to say to the first lady:

I'd tell her that we should be striving to change the environment so as to make lower-calorie, less-processed food choices the default. Let's Move may be politically palatable, but "Let's Cook" would likely have a far greater impact on health.

Let's Cook? Uh-oh, sounds like a job killer. Read more!

Toying with the Happy Meal: Is McDonald’s evading the law?

While most media outlets dubbed it the "Happy Meal toy ban," the ordinance passed in San Francisco last year didn't ban anything. The law just placed a few reasonable nutrition guidelines (a maximum of 600 calories per meal and limits on fat and salt, for example) for restaurants using free toy incentives to lure kids into a lifetime of bad eating habits. In a rare victory for children's health, the bill passed despite heavy lobbying by McDonald's.

The law is scheduled to go into effect today, but the fast food giant -- who didn't want to change the nutritional makeup of its Happy Meals -- has devised a clever gimmick to maintain the status quo. Instead of giving the toys away for free, parents will now pay 10 cents for the latest plastic action figure. And for bonus PR, the dime will be donated to the city's Ronald McDonald House.

Some media outlets have claimed that McDonald's has successfully found a loophole, or has dodged or skirted the law. And it may look that way on the surface, but I'm not so sure.

It's not clear to this lawyer that the clown trick is in full compliance with the law. What has really changed and how exactly will this new 10-cent rule play out at the cash register? Is McDonald's HQ requiring its San Francisco franchises to ask if a parent would like to pay 10 cents extra for the toy? Even if they are, the reality is that the Happy Meal business model depends on toys being automatically included.

Fast food outlets manipulate so-called "default options" on the menu to ensure maximum sales. For example, when you order a "combo meal" it's likely to automatically come with a soda -- not, say, juice or milk -- because soda has higher profit margins.

McDonald's is determined to keep Happy Meals tied to toys, because a new toy every week ensures repeat business (and repeated nagging). The easiest way to do this is to include the toy as the default option. If parents started refusing the toys, it would defeat the entire purpose of the Happy Meal: to fulfill the company's (likely very lucrative) contractual agreements with media companies that require them to cross-promote the latest movie, kids' TV show, etc.

It's no wonder then, that McDonald's is so desperate to retain the toys. But is this true compliance with a law that was meant to disassociate toys from unhealthy food? I don't think so.

McDonald's has a history of acting irresponsibly, despite its claims to the contrary. For example, the company proudly touts its membership in the Children's Food and Beverage Initiative. Through this voluntary, self-regulatory trade group, the company makes numerous claims about how responsible its child marketing policy is, including:

McDonald's is proud of our long heritage of responsible communication with our customers, especially children, and continues to play a leadership role in the development of standards that govern advertising for children and adults.

However, an in-depth investigation by the Rudd Center on Food Policy and Obesity at Yale University found that McDonald's has failed to live up to its voluntary pledge -- in numerous ways. For example, the study found that McDonald's increased its TV advertising from 2007 to 2009, with preschoolers seeing 21 percent more ads for McDonald's and older children viewing 26 percent more.
The Rudd Center study also found:

• McDonald's web-based marketing (on Ronald.com) is aimed at children as young as 2.
  
• McDonald's 13 websites attracted 365,000 unique child visitors and 294,000 unique teen visitors on average each month in 2009.
  
• African American teens viewed 75 percent more TV ads for McDonald's compared to white teens.

All this is despite McDonald's "commitment to responsible marketing to children."

The Rudd Center also found that this type of marketing works. Forty percent of parents reported their child asks to go to McDonald's at least once a week, with 15 percent of preschoolers asking to go every day. Wonder why? Toys play a huge part in that incessant asking. The fact that McDonald's is so determined to keep toys shows just how huge.

Can't parents just say no? Of course they can, but both ideas can be true: Parents need to set limits and McDonald's needs to stop marketing to children. As ample science tells us, marketing to young children is inherently deceptive because they do not have the cognitive capacity to understand that they are being targeted. Therefore, under both federal and state law, marketing to young children is already illegal. (Read my previous article for the full legal explanation.)

As I see it, voluntary pledges are a dismal failure. Only better laws enforced over time will change the behavior of companies like McDonald's. And when advocates do get laws passed to protect kids, McDonald's will keep trying to avoid them. But we don't have to let them get away with it. Here's how you can get involved:

1. If you live in San Francisco, contact San Francisco Supervisor Eric Mar's office (the author of the bill) and tell him not to allow the City to accept this move by McDonald's. San Francisco may still be able to fix the law with new language or change how it is enforced.
2. Contact the San Francisco city attorney's office to tell them the same thing.
3. If you live elsewhere in California, contact the state attorney general's office, which has authority to enforce consumer deception laws. If you live outside of California, you can find your state attorney general listed here.
4. File a complaint with the Federal Trade Commission, the agency responsible for regulating advertising at the federal level. Deceptive marketing is already illegal, and marketing to young children is inherently deceptive.
5. File a complaint with the industry-sponsored Children's Food and Beverage Advertising Initiative about McDonald's irresponsible marketing practices.
6. Just for fun, contact McDonald's to tell them what you think.
7. Finally, support nonprofits that are working to hold companies like McDonald's accountable. The two I recommend are The Campaign for a Commercial-Free Childhood and Corporate Accountability International.  

It's clear this company won't improve on its own. Maybe it's time to Occupy McDonald's?

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Why I’m (Pre)Occupied by Miley Cyrus: Does Hannah Montana Still Matter?

I don’t know how you feel about the Occupy Movement or about Miley Cyrus. As for me, having spent the past decade speaking out against the corporate takeover of childhood, I tend to be sympathetic to the 99% message and beyond unsympathetic to the contribution Cyrus-as-Disney-star-Hannah-Montana has made to the commercialized sexualization of very young girls.

So how am I supposed to feel now that she produced a rather moving music video in support of Occupy protests all over the world? It does a great job of using its genre to celebrate the democratic right to protest and bear witness to its (sometimes brutal) repression. If Cyrus is still popular among young people, it probably has a shot at awakening interest in organized dissent. For a certain (young) age group it might make civic activism cool.

I emailed my Occupy/Miley dilemma to some of my wiser colleagues. Actually, my email read, “Does this mean we have to start liking her or stop liking the Occupy Movement?” One immediate response was, “I never disliked her. Blame the handlers, not the kid.” Here’s another, “It's great she did this video. It will draw in a lot of young people, I hope. Miley is used and exploited too.”

And of course they’re right. We can expect that the suits at Disney knew exactly what they were doing to little girls by marketing Miley Cyrus as Hannah Montana. We might expect that the other adults in her life knew, too. But we can’t expect a girl in her early teens to know.

Cyrus was only 12 when she auditioned for Hannah Montana—and 13 when it became one of Disney’s biggest hits, with the attendant toys, clothing, accessories, video games, jewelry, and so on. She was just 15 when she posed apparently covered only by a sheet for Annie Leibowitz. My colleagues would say that she was objectified by adults who profited obscenely from her objectification. And because celebrity culture carries so much weight, even with the very young, the glorification and amplification of her image has vast consequences. We only have to search as far as YouTube to see girls as young as 2 playing at being Miley Cyrus playing at being a teenage rock star playing at being an adult playing at being a certain kind of sexy.

But does making a video that promotes civic action transform Cyrus into a positive role model for girls? Well. . .maybe, depending on age. I can just about imagine having a nuanced conversation with my 9-year-old granddaughter about the pros and cons. But I doubt that her 5-year-old sister could old grasp the nuance of someone being a great role model in some ways but not in others.

So where does this leave me, Miley, and Occupy Wall Street? For the first time, ever, I find myself wondering about her. I wonder what she thinks, or will think in the future, of how Hannah Montana was marketed to children. I wonder why she made this video. I wonder what her managers/agents/handlers think about it. I wonder if they weighed the cost/benefit to her career before it was posted. I wonder if she even tries to reconcile her ties to Disney, one of the biggest entertainment conglomerates in the world, in light of the Occupy Movement’s spotlight on greed and the abuse of corporate power.

The Yiddish word “farkakte” means simultaneously “crazy, screwed up, and gone bad”; Sometimes it’s the only word that will do. It’s a farkakte world where 1% of the population gets richer at the expense of everyone else; where corporations purposely sell four year olds on fake sexuality; where thousands of unknown viewers can watch repeatedly the parent-posted videos of tiny daughters as Hannah Montana imitators shaking whatever booty they have; where kids are indoctrinated to celebrity culture before they even enter preschool; and where a 19 year old’s celebrity means that her political opinions matter.

But I have to say—I like the video. I’m glad she made it. Thanks for this one, Miley Cyrus. Read more!