In the early 1990s, calls were heard in the halls of Congress, among public interest groups and in the press about the harmful effects of advertising on children. Within a few years, we saw legislation and FCC actions limiting the amount of advertising aimed at children, and effectively prohibiting the hosts of children’s programs from promoting goods or services during their programs. We may now be seeing a similar wave building with respect to the advertising “unhealthy” foods – particularly as that advertising affects children.

A recent Broadcasting and Cable article referred to discussions held between advertising organizations and Senator Brownback of Kansas, seeking to encourage industry self-regulation on the advertising and promotion to children of unhealthy foods.   After the discussion, the Senator reportedly agreed to refrain from pursuing any Congressional action at this time, while industry efforts to develop voluntary guidelines proceeded. However, the concern was clearly expressed that, should industry actions not be forthcoming, legislative action may follow.

These efforts to regulate the advertising of unhealthy foods have been arising not only at the Federal level, but also in state legislatures around the country.   Several state broadcast associations have faced proposals in their legislatures to enact restrictions on the advertising of unhealthy foods. So far, most of these efforts have not resulted in actual regulation, at least in part because of the difficulty of defining what foods would be covered by any rules that may be adopted. 

This issue is one which seems to be growing in intensity and focus.  Not only have there been recent books and movies popularizing the subject (e.g. Supersize Me, Fast Food Nation), but this morning, the Today Show had a feature about the ability of children as young as 2 to recognize fast food logos and brands, and plans to broadcast a special Dateline on the subject this evening.  The context of the stories clearly was not "what a great job brand marketers are doing," but instead it was viewed with concern as to whether children are learning from advertising unhealthy eating habits at an early age.

Apparently recognizing the issue, the NAB plans a special session at its Legislative Breakfast at the NAB Radio Show in September to discuss fears of regulation taking away or limiting certain categories of advertising. 

This is an issue which broadcasters and advertisers should watch carefully. The difficulties in complying with or enforcing such regulation would be tremendous.  How do you define what foods are not healthy?  Where would the responsibility lie to determine if an ad was for an "unhealthy food?"  Would broadcast stations need to have staff nutritionists to determine if ads were for unhealthy products?  Where would the liability lie for such ads – with the advertiser or with the station?  And where would this end – what other legal products might be subject to regulation or prohibition?  Stations should be alert to such regulatory actions – both in Congress and in their state legislatures.