Proponents of New Food Marketing Guidelines Fighting Back

Supporters of the guidelines—which call for food, beverage, and restaurant companies to either modify product formulations or cut out all marketing aimed at children under 18, from TV ads to packaging to sponsorships, of products that don't meet certain nutrition standards—felt it was high time to counter what they see as a growing lobbying blitz. So now that Congress is back in session, the Food Marketing Workgroup, a coalition of 95 organizations aimed at improving nutrition and ending obesity among the nation's children, is stepping up its advocacy on the Hill, concentrating on the Democratic-controlled Senate, where they believe they will have better luck gathering support.

Margo Wootan, who heads up the FMW (she's also director of nutrition policy for the Center for Science in the Public Interest), says the coalition is focused on the staff of the Senate Appropriations Committee, and is attempting to counter language inserted into House Appropriations bills that would cut off funding for the program.

"I've been incredibly surprised how aggressive an effort the industry has mounted against voluntary standards. Voluntary standards are not an infringement of the First Amendment," said Wootan. "It calls into question their whole commitment in marketing to kids and decreasing childhood obesity."

As part of its strategy, the FMW also orchestrated a letter from 36 law professors in which the scholars argue that the voluntary guidelines do not violate the First Amendment, rebutting a key claim that the food and advertising lobbies are making in their efforts to try and modify or kill the proposal. The letter was sent Tuesday to the Federal Trade Commission, the U.S. Department of Agriculture, the U.S. Food and Drug Administration, and the Centers for Disease Control—all four of those agencies were part of the Interagency Working Group that developed the guidelines—as well as to both houses of Congress and the White House.

The focus on the First Amendment argument gets at the heart of the food and advertising's assertion that the guidelines, even though they're voluntary, are nothing less than back-door regulation because they are proffered by the very agencies that regulate the industries, infringing on their First Amendment rights to market legal products.

"We want to rebut one of their bogus arguments. Clearly voluntary standards are not an infringement of the First Amendment," Wootan said.

The FMW has also picked up a new ally in the Center for Digital Democracy, which has been advocating for new online and digital privacy guidelines and is up against the same advertising and food industry lobby.

"The advertising and food industries don't want any protection for teens and [says] that the guidelines are unconstitutional. They know they've unleashed the most powerful marketing system ever devised, and they don't want to cut off the gravy train," said Jeff Chester, the Center for Digital Democracy's executive director.

The food and advertising industries have certainly brought out the big guns on this. Anita Dunn, who was for a time director of communications in the Obama White House, was brought on to run one group dedicated to opposing the guidelines, the Sensible Food Policy Coalition. Viacom hired First Amendment attorney Kathleen Sullivan.

They've had some success. Besides convincing House Appropriations leaders to insert that language to cut off funding for the program, they've rounded up 150 members of Congress to write letters to the IWG.

The IWG has received more than 29,000 comments on the proposal; it's expected to issue final recommendations by the end of the year.