Congress Gets Involved in Fight Over Food Marketing Guidelines

New voluntary rules have been tough battle for industry

WASHINGTON—The food and beverage lobby is finally getting some attention on Capitol Hill as it tries to neuter the government's proposed voluntary guidelines for marketing food to children. More than 30 Democratic members of Congress, organized by Rep. John Barrow, D-Ga., are set to send a letter to the heads of the Federal Trade Commission, the U.S. Department of Agriculture, and the U.S. Department of Health and Human Services, criticizing the analysis behind the guidelines and requesting a cost-benefit analysis of the proposal.

The letter follows one that Rep. George Butterfield, D-N.C., sent last month; it's likely to be followed by another, as Sen. Mike Johanns, R-Neb., is also working on a letter with a number of other senators. And there's language in a House appropriations bill that prohibits the FTC from using any of the funds from the bill to move forward on the guidelines, at least not until after a cost-benefit analysis that Congress wanted done on them in the first place is completed. 

But getting members of Congress to pay attention has been anything but easy for the food, beverage, advertising, and media industries, which view the guidelines as draconian, costly, and most importantly, voluntary in name only. If these were actual regulations, imposed in the normal way business is done in Washington, they would know exactly what they have to do to fight them. But because these guidelines are voluntary, it's been like punching air. 

The voluntary nature of these guidelines "is one of the most controversial parts of this," says Dick O'Brien of the American Association of Advertising Agencies. "In years to come, if those standards stand, they will be used to measure the performance of the food and beverage industry."

Because the guidelines were proposed by an interagency working group made up of agencies that have oversight over the food and beverage industry, business interests don't see the rules as truly voluntary—opponents believe the guidelines will be, in practice, all but mandatory. As voluntary, normal rulemaking procedures don't have to be followed, that makes it difficult to build support for a campaign against them.

"There aren't any flash points for people to be put on alert. Nothing is operating under regulatory or statutory authority. Now that it's done, we don't even know what done means. There are no rules, so everyone is living in a state of ambiguity, and that's not good for advertisers or media," says Jim Davidson, chair of the public policy group for Polsinelli Shughart, which represents the Alliance for American Advertising.

If the guidelines had been proposed as regulation, there would be deadlines, standards, and a normal course of procedure, including a Congressional Budget Office score, a more rigorous comments procedure (including studies that would examine if the new rules would actually lead to a decrease in childhood obesity), and involvement by Congress, leading up to eventual publication in the Federal Register.

But this, says Dan Jaffe, executive vice president of the Association of National Advertisers, "is a totally amorphous process. When it's 'voluntary,' [the working group] denies that they're doing anything significant."

But the efforts of Jaffe and others now seem to be getting some attention. House Democrats, while supportive of the administration's efforts to fight obesity, are pushing the administration on this, criticizing the working group for not following the instructions Congress gave it when it formed the group in a 2009 appropriations bill.

"I am concerned that the IWG did not complete a study, as Congress directed, which considers the economic impacts of your proposal on broadcasters, advertisers, manufacturers, retailers, and charitable organizations. Although the IWG proposal would require considerable changes to food recipes and marketing, the IWG has produced no evidence that I am aware of that the proposed restrictions will serve the government's goals of changing long-term eating habits," Butterfield wrote in his letter. 

There are other efforts being made on the Democratic side of the aisle—SKDKnickerbocker, a public relations firm that includes notable Democrats such as former White House Communications Director Anita Dunn, has been hired to assist with the campaign against the guidelines. 

There's still plenty of work to be done, though. "What we need to do is make this a political issue or it won't get traction. We can't argue calories, salt, and grams," said a source close to the campaign. "Trouble is, in this political climate, it's tough to get this to the head of the agenda."