On April 28 2011 an inter-agency working group released a report on the Federal Trade Commission's (FTC) website making sweeping recommendations relating to the marketing of food to children. The report, entitled "Interagency Working Group on Food Marketed to Children Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts Request for Comments," is the result of the US Congress's request that standards for the marketing of food products to children under the age of 18 be subject to review and recommendation by an inter-agency taskforce comprised of the FTC, the Centres for Disease Control and Prevention, the Food and Drug Administration and the US Department of Agriculture.

The recommendations in the principals bifurcate foods into two categories, for determinations as to the appropriate marketing approaches and restrictions:

  • foods that are deemed to make a "meaningful contribution to a healthful diet"; and
  • foods that, given their nutritional content, should have their advertising limited.

While the proposed recommendations are referred to as "voluntary", this not only flies in the face of the inevitable pressure on advertising practices in the food and beverage industry, but - if previous government agency regulatory recommendations, guidelines or proposals are a precedent - can also quickly become de facto standards that the regulators themselves use in enforcing 'industry standards'. As with so many areas currently under scrutiny by regulators both in the United States and around the world, deference to self-regulation is a welcome trend; but if it is mere lip service, and if industries are not given a meaningful opportunity to design both self-regulatory standards and appropriate and meaningful enforcement mechanisms, it simply ends up creating further adversarial tensions and needless contention between industry and regulators – none of which is ultimately good for consumers in terms of cost or benefit.

The inter-agency working group has provided a short window for public comment: comments are due by June 13 2011, although with enough outcry, given the scope and breadth of the principles, it might be persuaded to extend the deadline. Companies in the food and beverage industry that will be affected by any government or self-regulatory pronouncements in this arena should engage in this dialogue, both in their own right and through the various industry associations that may be submitting comments.

For further information on this topic please contact Joseph I Rosenbaum at Reed Smith LLP by telephone (+1 212 521 5400), fax (+1 212 521 5450) or email ([email protected]).