Ms. Elizabeth Lascoutx, Director
Children’s Advertising Review Unit
Better Business Bureaus Inc.
CBBB’s National Advertising Division
New York, NY 10018

Dear Mr. Guthrie and Ms. Lascoutx:

As you know, the rising incidence of obesity has become a major public health concern. The food industry is committed to helping arrest and reverse the growth of obesity around the world. Achieving this goal will require multiple strategies, the integrated efforts of many sectors, and long term resolve. We at the Grocery Manufacturers of America are committed to doing our part and will support others in doing theirs.

Food advertising will play an important role in the battle against obesity. We believe self regulation can, too. The self-regulatory system managed by the National Advertising Review Council (“NARC”) deserves much of the credit for the truthful and responsible advertising that consumers see today. In the food sector, voluntary compliance with the decisions of the National Advertising Division (NAD) and the Children’s Advertising Review Unit (CARU) ensures that advertising meets the highest standards of truth and accuracy. Moreover, adherence to CARU’s Self-Regulatory Guidelines for Children’s Advertising has fostered advertising that promotes balanced diets and healthy life styles.

The effectiveness of self regulation derives from stakeholders’ appreciation of its role and advertisers’ participation in its procedures. We think that both sources of strength can and should be enhanced. Most consumers, companies and policy makers probably are not aware of all that self regulation has accomplished in the United States and do not appreciate its full potential to be a significant force in the future. It is time for self regulation to get the recognition it deserves.

We urge NARC to embark on a campaign to raise the visibility of its role and to expand its monitoring of food and beverage advertising through NAD and CARU. More specifically, we are writing to urge CARU to publish a white paper explaining its principles, guidelines and decisions applicable to food advertising, we are asking CARU to focus its monitoring and educational efforts on the food sector, and we are announcing our commitment to enlist widespread support among food companies for self regulation as administered by CARU and NAD.

The Challenge of Obesity and the Role of Self Regulation

Food and beverage companies place a high priority on researching and developing new ways to make favorable changes in the nutrition profile of people’s favorite foods even healthier without sacrificing quality or taste. The industry has introduced thousands of products that provide options for consumers looking for ways to incorporate variety, balance and moderation in their diets.

Informing consumers about products and services available to them is essential if they are to enjoy the benefits of the options that food companies provide. Educating consumers, especially parents and their children, how to meet their individual needs, tastes and preferences through the proper balance of activity and nutrition empowers consumers to maintain a healthy weight. Advertising is an important means of communicating that information and a critical element of the competition that drives innovation.

The value of advertising and marketing is tied to the trust and respect that those messages command. Accordingly, the members of GMA have a longstanding commitment to responsible advertising and marketing practices. The food industry is continuing to ensure that its communications with consumers accurately portray the products and the benefits they deliver. For example, the industry is continuing to ensure that its advertising and marketing practices do not encourage overeating or inappropriate consumption of foods. In addition, the industry is seeking ways to utilize its marketing capabilities to communicate healthy lifestyle messages to consumers through multiple media (from labeling to advertising to websites) and many channels (from retail customers to workplace environments).

At times, questions can arise whether individual messages comply with the standards that consumers expect, and regulatory authorities may intervene. But government regulation cannot be expected to mandate all that we would like advertising to accomplish, and broad restrictions can inadvertently suppress information that could help consumers. Self regulation, however, is ideally suited to address the role of advertising and marketing in promoting healthful choices affecting diet, nutrition and life style. Voluntary compliance with advertising guidelines is likely to be more effective than deliberation, interpretation and litigation over statutes and regulations that attempt to advance the public interest by restricting or mandating commercial communications.

Successful Experience With Self Regulation

Cooperation with an independent authority is often the first and sometimes the most important phase of consumer-protection regulation of advertising and marketing in numerous countries around the world. Decisions, codes and guidelines issued by self-regulatory bodies cover a wide variety of advertising claims and marketing practices. Self-regulation protects consumers in many instances that left unchecked would otherwise call for government action. The Federal Trade Commission has observed that self regulation is a legitimate complement to official law enforcement, and that it substantially lessens the burden on prosecutors who must police the marketplace and enforce the laws against unfair and deceptive claims. According to former FTC Chairman, Robert Pitofsky, NARC “is the best example of self-regulation that I am aware of in American History.”

The food industry has long supported NAD’s mission “to review national advertising for truthfulness and accuracy and foster public confidence in the credibility of advertising.” Food manufacturers rely on the huge body of precedent from decades of decided cases, and endorse NAD’s guiding principles, which include the following:

• Advertisements must not be untrue, misleading, or deceptive,
• As a whole, an advertisement can be found misleading, even if every statement separately considered is literally true,
• Advertisements must not misrepresent material facts by omitting or obscuring important information, and
• All objective claims in advertisements must be substantiated.

Indeed, NAD’s record is impressive. Since its formation in 1971, NAD has handled over 3400 cases. What is even more impressive is advertisers’ willingness to adhere to NAD’s findings. Over the last fifteen years, that compliance rate has exceeded 95%. For those who decide not to heed NAD’s recommendations, the repercussions are swift. NAD and CARU not only publish their decisions alerting the public and other advertisers to questionable conduct; they also refer non-compliers to agencies like the Federal Trade Commission. The FTC has repeatedly stated that NAD/CARU-referred cases are taken seriously and are often considered before other corporate complaints that have not gone through the self-regulatory process.

Complementing NAD is the Children’s Advertising Review Unit (“CARU”), which reviews and evaluates advertising directed to children under 12 years old. CARU accomplishes its mission by systematically monitoring thousands of broadcast and cable television, radio, child-directed websites, and children’s magazines. If an ad is deemed misleading, inaccurate or inconsistent with CARU’s self-regulatory guidelines, CARU seeks change through the voluntary cooperation of advertisers. In the last five years, CARU investigated over 430 advertisements aimed towards children.

Like NAD, CARU enjoys a success rate exceeding 95% in resolving child advertisement issues. Non-compliance with CARU findings can result in a FTC or other government agency investigation. This success rate has been recognized and commended by many, including the FTC. For example, C. Lee Peeler, Deputy Director for the Bureau of Consumer Protection at the FTC said the following about CARU:

“As an advertising law enforcement official, I have always found it remarkable that, in the name of self-regulation, major national advertisers would voluntarily modify or discontinue their advertising to meet CARU’s standards that sometimes go beyond existing law. CARU’s twenty-five years of success demonstrates a sustained commitment to effective self-regulation. It is a record of accomplishment for which CARU supporters should be justifiably proud.”

The NAD and CARU self-regulatory programs have proven to be extraordinarily effective. The industries’ willingness to be self-governed, combined with the compliance incentives built into this self-regulatory process is a recipe for success. Explaining how this self-regulatory role affects advertising concerning diet, nutrition and life style is a natural and logical exercise for CARU, because the basic principles and guidelines are already in place. For example, CARU applies the following basic principles to all advertising it reviews:

• A recognition that advertising may play an important role in educating a child about health and well being,
• A recommendation that advertising address itself to beneficial social behavior, and
• An acknowledgment that parents retain prime responsibility for guiding their children.

Precedent from CARU and similar self-regulatory bodies can provide a framework for the proper treatment of the role of advertising in promoting a healthy life style. CARU, for example, has issued guidelines and has decided cases that can help mold the messages that young consumers receive on the importance of healthful diet and nutritional choices.

Guidelines and Cases Already Address Diet, Health and Nutrition

The following are excerpts from CARU’s guidelines:

• Advertising “should not mislead children about product or performance characteristics . . . [including] nutritional benefits.”
• Advertising “should not mislead children about the benefits from use … [including] the acquisition of strength… growth… and intelligence.”
• “The amount of a product featured should be within reasonable levels for the situation depicted.”
• “Representations of food products should be made so as to encourage sound use of the product with a view toward healthy development of the child and development of good nutritional practices.”
• “Advertisements representing mealtime should clearly and adequately depict the role of the product within the framework of a balanced diet. “
• “Snack foods should be clearly represented as such, and not as substitutes for meals.”

The following positions come from cases CARU has decided:

• Objection to a promotion that touted the more you eat the better your chance of winning,
• Objection to commercials that suggested snacks were more appealing than complete meals,
• Concern that advertisements for flavored drinks overstated their nutritional value,
• Objection to an advertisement that showed children eating excessive amounts of candy while watching television.

There can be no question that consumers of all ages are better off because the communications they receive pass through the filters of self regulation. And some of these filters are only available through self regulation. No law in the United States requires adherence to all these principles -- indeed, it is unlikely that any law could effectively do so -- yet food manufacturers overwhelmingly support them, and willingly comply with the decisions of CARU that implement them. Many of these companies market around the world. They are willing to commit to these principles and to self regulation that applies them.

Enhancing Self Regulation Can Promote Healthy Behavior

Self regulation of food advertising has evolved into a sophisticated body of standards that is respected by virtually all observers. But if it is to realize its full potential, self regulation must be visible and widely accepted by consumers and businesses alike. The most effective way to influence advertising for the benefit of diet, nutrition and health is to advance and promote self-regulatory organizations like NAD and CARU in the United States and in other jurisdictions.

Because consumers of all ages depend on advertising for accurate information about the nutritional content and health benefits of food, the credibility of such claims is critical to their educational value. Candor and substantiation are keys to credibility. NAD has already produced a wealth of decisions and a series of publications that spell out in great detail how it distinguishes the truthful from the misleading and the baseless from the substantiated. The food industry urges NAD to continue these efforts.

Because consumers’ attitudes toward diet and nutrition begin taking shape at an early age, messages that reach children are especially important. But the principles covering such advertising weave through years of decisions and unpublished consultations. Therefore, we think CARU should synthesize and publish its relevant consultations, decisions, codes and guides dealing with advertising directed to children. The food industry urges CARU to issue a white paper on advertising related to diet, nutrition and health, to publicize its policy so it is better understood and accepted, and to focus its reviews on these important issues.

We stand ready to support you in the efforts you decide to undertake.

Sincerely yours,

C. Manly Molpus
President and CEO
Grocery Manufacturers Association

• C. Manly Molpus
  

• Stephanie Childs