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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Who Put McDonald's in Charge of Kids' Health?

When McDonald’s sneezes, the media jumps. Such was the case yesterday when the fast food giant announced it was giving the Happy Meal a makeover. Well not really, but that’s how it got reported, because the media loves simple stories. But when it comes to marketing and PR by multinational corporations, nothing is ever that simple.

While my colleagues have done a great job of explaining why nutritionally, this move is little more than PR (see Marion Nestle and Andy Bellatti), missing from the analysis so far is this: what McDonald’s really wants is to remain in charge.

The fast food giant’s motivation beyond the obvious positive PR spin is to stave off more laws like the one passed in San Francisco to set nutrition standards for Happy Meals, not to mention lawsuits like the one filed by the Center for Science in the Public Interest based on deceptive marketing.

No doubt McDonald’s is gearing up to challenge the San Francisco ordinance in court the minute it goes in effect later this year. A similar bill has been proposed New York City while other localities wait to see the legal outcome. Now, McDonald’s gets to claim to any lawmaker or judge who will listen: “We don’t need no stinking laws, we got it covered with our new and improved Happy Meals. We got the message loud and clear, so now we’re cleaning up act all on our own. Nothing to see here, move along.”

As I explained in my book, Big Food announcements of improved corporate behavior are for two reasons only: positive PR and staving off government regulation (and in this case, more litigation).

While the former is more obvious, the latter should cause you to ask: Who is in charge here? McDonald’s ultimate goal is to make as little change as possible to get media attention (and praise from the likes of the first lady), while distracting policymakers from doing its job setting the boundaries of corporate behavior.

One argument I often hear about why we should praise these sort of industry moves is that “it’s a step in the right direction.” But in what direction exactly? A direction in which McDonald’s and friends continue to get to call all the shots for how we eat and how our children are marketed to? What is the end game in a world where we accept “incremental change” from corporations who answer only to shareholders? Somehow I don’t see that in 200 more steps Happy Meal boxes will morph into CSA boxes full of fresh, local produce.

Rather than praise corporations like McDonald’s for such meaningless and most likely temporary “improvements” let’s call them out for the distractions they are. We can at least celebrate that years of advocacy efforts to curb marketing to children is causing McDonald’s to take notice, as lame as it is.

Then let’s get back to the much harder job of policy change: to convince our democratically-elected leaders (or judges if that’s what it takes) that McDonald’s should not be allowed to market to children, period. No matter how many ounces of French fries or apple slices Happy Meals contain.
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Hope and Hypocrisy Under the Golden Arches

As advocates for deep change know, big success is often preceded by small incremental changes that may go unnoticed by the general public. It seems the effort to stop fast food companies from hawking toys to kids is gaining ground.

Last week I was watching Friday Night Lights (a great show if I don’t fret about the product placement) and blithely forwarding through the commercials when an ad for McDonald’s Happy Meals stopped me cold. There were no toys. Intrigued, I rewound and watched in real time:

We see a multi-racial bunch of totally cute kids with Happy Meal boxes—but they’re empty. A child’s voice chirps, “There’s something inside a McDonald’s Happy Meal. It’s called hope…” The kids keep looking for hope in the boxes, but—it’s invisible! Then there’s the tag line, “Happy Meals, the simple joy of helping.”

Turns out five cents of every Happy Meal purchase goes to Ronald McDonald House Charities. According to the fast food giant, there’s a moral imperative to feed your children junk food.

Over the past year, advocates have brought increasing pressure on McDonald’s to stop marketing to children. Corporate Accountability International’s Retire Ronald campaign is gaining traction. The Center for Science in the Public Interest is suing McDonald’s for using toys to sell Happy Meals to children. And San Francisco now requires that restaurant food sold with toys meet basic nutritional standards.

To distract adults from the toy giveaways, McDonald’s is now working hard to convince parents that children can, and should, do good by eating bad. Meanwhile the company is running the same old Happy Meal ads during kids’ shows. No hope there, just toys, toys, and more toys.

These days there is something you can’t see inside a McDonald’s Happy Meal. It’s called fear.

I’m lovin’ it.

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