Using the Law to Stop Exploitation

Richard A. Daynard, J.D., Ph.D.
Professor, Northeastern University School of Law
Chair, Tobacco Products Liability Project
Director, Public Health Advocacy Institute’s Law and Obesity Project

Twenty years ago the California Supreme Court, in a case called COMMITTEE ON CHILDREN'S TELEVISION, INC. v. GENERAL FOODS CORPORATION, squarely decided that the law could indeed be used to stop exploitation of children. The case involved the promotion on television, in magazines, and on the cereal boxes themselves of cereal containing between 38% and 50% of sugar by weight. The plaintiffs alleged that defendants "engaged in a sophisticated advertising and marketing program which is designed to capitalize on the unique susceptibilities of children and preschoolers in order to induce them to consume products which, although promoted and labeled as 'cereals,' are in fact more accurately described as sugar products, or candies.” They claimed that the advertising and labeling implicitly represented that "children . . . who regularly eat candy breakfasts are bigger, stronger, more energetic, happier, more invulnerable, and braver . . .," that eating such products is a "'fun' thing . . . to do," that the products possess or impart "magical powers," etc. Some representations, however, are more specific: that the sugared cereals are "grain products," are "healthful and nutritious," contain adequate amounts of elements essential to diet, and "are the most important part of a well balanced breakfast."

The case was brought under common law fraud, as well as under a section of California’s Business and Professions Code that outlaws “unlawful, unfair, or fraudulent business practice and unfair, deceptive, untrue or misleading advertising.” Similar laws exist in every state. The plaintiffs sought an order enjoining the General Foods from continuing its marketing campaign, restitution of the money parents had paid for the deceptively marketed “candy breakfasts”, and other relief, including recovery of their attorneys’ fees. In response to the defendant’s insistence that the plaintiff identify every advertisement that each kid saw and relied upon, the court noted that “the realistic setting of the case, however, may make such specific pleading impossible. A long-term advertising campaign may seek to persuade by cumulative impact, not by a particular representation on a particular date. Children in particular are unlikely to recall the specific advertisements which led them to desire a product, but even adults buying a product in a store will not often remember the date and exact message of the advertisements which induced them to make that purchase. Plaintiffs should be able to base their cause of action upon an allegation that they acted in response to an advertising campaign even if they cannot recall the specific advertisements.” General Foods also tried to defend on the basis that, while the children saw the promotions, it was actually the parents who bought the cereal. The Court didn’t buy that either. They noted that “Defendants' argument is inconsistent with the strategy of their own advertising. They are aware that the parents purchase the cereals, but they are also aware that parents do not exercise a totally independent judgment, but are influenced by the desires of their children. If such were not the case, defendants would not spend millions to advertise cereals on children's programs watched by very few adult purchasers.”

Following the California Supreme Court decision the General Foods case did not go to trail, but was apparently settled in a way that obviously has not stopped General Foods (now Kraft, which is owned by Altria, which used to be called Philip Morris) or its competitors from continuing to behave in very similar ways. But the General Foods case is still good law, and can be cited in a wide variety of contexts, wherever its underlying principles fit, in courts around the nation, by public interest lawyers seeking to stop commercial exploitation of children.

Richard Daynard, JD, PhD (r.daynard@neu.edu) is a professor at Northeastern University School of Law, chairs the Tobacco Products Liability Project and is President of the Tobacco Control Resource Center. He directs the Law & Obesity Project of the Public Health Advocacy Institute, and this past June chaired the first annual conference on Legal Approaches to the Obesity Epidemic.