Centers of Excellence: marketing to children
Responding to the “Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts”
On April 28, the Interagency Working Group on Food Marketed to Children released the “Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts.” The Working Group consists of representatives from several agencies, including the Federal Trade Commission, the Centers for Disease Control and Prevention, the Food and Drug Administration, and the United States Department of Agriculture. The Working Group aims to provide uniform nutritional and marketing principles that will promote children’s health while reducing obesity.
Despite its legitimate goal, the proposal sets overly ambitious standards that will be challenging for the industry to meet, especially due to the definitions regarding what activities by food companies constitute “marketing.” The proposal would ban various forms of marketing to children and adolescents for virtually all foods. And it would reach marketing activities not directed toward children – such as using endorsements by celebrities or athletes who are popular with children or using words like “child” or “kid” on packaged foods. The proposal would also ban advertising/promotion on an Internet site with a 20% share of viewers being adolescents or children. This would have a devastating effect on social media sites.
The effect will be felt far beyond the food industry, including on business partners and promotion partners of food companies; in addition, the proposal sets a very dangerous precedent of what constitutes “marketing to kids” and an even more troubling precedent in its move to restrict commercial speech through nominally “voluntary guidelines” backed up by four powerful governmental agencies.
PMA will comment to the FTC on the proposed rules and is engaged in numerous other steps, both with a coalition of other concerned entities, and independently, to help protect the industry.
These rules and the subject of marketing to children will be extensively covered at the PMA Marketing Law Conference, November 15-16, 2011 in Chicago. For more information on the conference, click here.
- The Maine Predatory Marketing To Minors legislation, passed last year and then called “unconstitutional” by the Maine Attorney General, in response to a coalition effort in which PMA played a role, is now the subject of a new bill. This new bill would repeal the original and enact a radically reshaped one, restricted its scope to pharmaceutical marketing to minors.
- Several FTC and FTC initiatives/workshops and the like are focusing on marketing to children, food standards and empowering parents to control what content is presented on TV and the internet. It appears there is a joint effort of both agencies to treat minors , even beyond COPPA, as a specially protected class with respect to advertising
- A new proposed federal regulation under the Credit Card Act of 2009 clarifies rules concerning expiration dates and dormancy charges of gift cards.
- New state legislation is aimed at Advance Consent Marketing,including in Kentucky, Maine and New Hampshire. These are, in the judgment of some, part of efforts for greater transparency in dealing with consumers, but also have the effect of making sales, even with legal disclosure, harder to close.
BREAKING NEWS: Maine AG will not enforce statute;court says parties on notice that private suits could be subject to constitutional challenge
PMA is pleased to report that on September 9, 2009, the U.S. District Court in Maine entered a stipulated order of dismissal in the court challenge to Maine’s recently enacted law that prohibits the collection, receipt and use of personal information and health-related information from minors for marketing purposes without first obtaining verifiable parental consent. (We reported on the law and PMA’s involvement in these matters in an earlier blog post.)
The law was going to take effect on September 12, 2009, but a coalition of publishing and educational groups challenged the law on constitutional grounds, arguing that the law was overbroad and restricted First Amendment rights.
The court dismissed the complaint because the Maine Attorney General agreed not to enforce the law. The court held that the plaintiffs met their burden of establishing a likelihood of success on the merits of their First Amendment claims. Maine’s Attorney General acknowledged her concerns over the substantial overbreadth of the statute and agreed not to enforce it. She has also represented that the Maine Legislature will be reconsidering the statute when it reconvenes.
The court also stated that, as a result, third parties are on notice that a private cause of action under the marketing law could suffer from the same constitutional infirmities. This appears to be an effort by the court to discourage individuals and attorneys from filing a private cause of action to enforce the law.
We will keep you further posted on the law and urge any business desiring further clarification to seek counsel from their attorneys.
Last week a complaint was filed in Federal Court in Maine (1)seeking a declaratory judgment that the recently passed Maine statute(10 MRSA SEC 9551 et seq,)— which prevents the collection of personal information for marketing purposes from a minor without parental consent and further restricts the use of such information for the purpose of marketing a product or service to a minor —is unconstitutional and (2) seeking an injunction against the enforcement of said statute.
In response thereto, on Friday Aug. 28, the Attorney General of Maine, Janet Mills, commented as follows:
“After speaking with the sponsor and other legislators involved in it, I think they understand that the law is not presently enforceable,” Mills told Capitol News Service. “And so the position we’ll take in the court, I believe, is that we won’t be acting to enforce the law as currently drafted.”
Mills say she has spoken with the measure’s sponsor, Sen. Elizabeth Schneider, a Democrat from Orono, and suggested they craft changes to the law that will achieve Schneider’s original goal of preventing minors from sharing sensitive health information online without infringing on constitutional rights.
However,notwithstanding the above, the AG may oppose the motion for a preliminary injunction by plaintiffs, because she may contend that there is no case or controversy and the case is moot in view of the nonenforcement. Since however, the statute also allows for a private right of action, it is possible that pending a rewrite of the statute, which goes into effect Sept. 12, clients may be in limbo vis a vis such private enforcement even if the AG does not enforce the statute. Accordingly, in such event,businesses are advised to consult with their attorneys as to the course of action they should undertake in the interim.
The Maine governor signed into law on June 2 a new law that, starting September 12, will essentially bring the requirements of COPPA to 13-18 year olds that reside in that state, both in the online and the offline world. Under the new law, it will become an unfair trade practice to collect personal information from children under 18 without first obtaining parental consent. Consent must be “verifiable,” defined as “any reasonable effort, taking into consideration available technology” to ensure that the parent receives prior notice of and authorizes the collection of his or her child’s personal information. The law also makes it an unfair practice to engage in “predatory marketing” to kids under 18, defined as, among other things, using a minor’s personal information to market “a product or service to that minor or promoting any course of action for the minor relating to a product.”
The Maine Attorney General is given authority to enforce the law, with potential civil penalties of $10,000 to $20,000 for the first violation, and $20,000 or more for the second or subsequent violation the law. In addition, the new law provides for a private right of action, with statutory damages of up to $250 for each violation. Many are concerned about this law, in particular the private right of action, and fear that it could have serious impact for those who collect information from teenagers online, those who engage in direct marketing to children under 18 (for example
to teenagers between 13-18), as well as those who collect information offline in Maine from children. Several industry groups have indicated that they will be working to delay implementation of the law, PMA is working closely in this area, but as of this writing, no delay has been announced by the state of Maine.
However, this is an evolving situation and we will report very soon again about the efforts undertaken in this area, and the possibility of revision of the statute and the time frame frames therein contemplated.