The Public Health Advocacy Institute at the Northeastern University School of Law recently released the results of an analysis of state-by-state consumer protection laws that prohibit unfair, deceptive or unconscionable sales and marketing of unhealthy food and beverages to children and adolescents. We asked lead researcher Cara Wilking, a staff attorney for the advocacy institute and the clinical instructor for the law school’s Public Health Legal Clinic, to explain the findings.
What is the difference between direct marketing and “pester power,” and how successful are consumer protection laws at curtailing these types of junk food marketing strategies? Which state best protects children from unfair marketing of unhealthy food?
In this context, direct marketing targets the ultimate purchaser of the marketed product by using tactics that appeal to that purchaser. Direct marketing to an adolescent, for example, might focus on fitting in or being cool. “Pester power” marketing targets children with tactics that appeal to them — such as toy premiums, contests, games and cartoon characters — on products that children do not have the ability to purchase for themselves. The desired effect is to generate nagging whereby the child repetitively requests a product until an adult purchases it. Pester power marketing is “indirect” insofar as it targets someone other than the otherwise disinterested ultimate purchaser. It is highly effective; some studies suggest that it results in an actual purchase about half of the time.
State consumer protection law has been invoked in Massachusetts to challenge the use of licensed cartoon characters to market unhealthy foods to children and, more recently, in California to challenge the use of toys to market unhealthy fast food children’s meals. Our review of state consumer protection laws revealed that a number of states, including Massachusetts, address marketing tactics that use indirect tactics to induce consumers to purchase products they otherwise would not have purchased. Pester power marketing, insofar as it unfairly induces parents to purchase unhealthy products by exploiting the vulnerabilities of children, seems to fit squarely under those laws.
What are some of the most memorable ways in which unhealthy food and beverage marketing firms entice children to purchase their products?
The most memorable discovery came from a 2005 tax court decision involving fast food. In the course of the case, McDonald’s disclosed that its Happy Meal toy and packaging cost (47 cents — 43 cents just for the toy) was more than its food and condiment cost (33 to 46 cents) for the Happy Meal combinations it offered at the time. That means that the inedible marketing and packaging materials made up a higher percentage of the cost of the Happy Meal than the food. While McDonald’s has recently announced that it will be improving the nutritional quality of its Happy Meals, which presumably will increase the cost of the actual food, the cost information reveals just how crucial marketing to kids has been to the McDonald’s business model.
In the study, you note that children between the ages of 4 and 12 directly influenced $330 billion worth of purchases made by adults in 2004. Why should marketing firms be blamed for purchases that a parent makes on his child’s behalf?
Food and beverage companies engage in marketing to children because, as the Institute of Medicine concluded, “marketing works.” In response to inquiries from the Federal Trade Commission in 2008, food companies self-reported that child requests to parents to buy a product are important in driving purchases. We can pretend that companies are simply taking a gamble by spending billions of dollars to market foods and beverages of poor nutritional quality to children they know do not have the ability to purchase for themselves. Or we can take them at their word and hold them responsible when they engage in tactics that run afoul of existing consumer protection laws.