Frequently Asked Questions about the lawsuit against Viacom and Kellogg

On January 18, 2005, CCFC, the Center for Science in the Public Interest and two Massachussetts parents announced their intent to file suit against Viacom and Kellogg to stop them from marketing junk food to young children. Below are answers to some frequently asked questions about the suit.

 

What are you trying to gain by this lawsuit?

This is a lawsuit about protecting children’s health at a time when childhood obesity and Type 2 diabetes are major public health problems.  We want Viacom (the parent company of Nickelodeon) and Kellogg to stop marketing junk food to children under eight.  We have stated clearly that if Viacom and Kellogg stop this practice we will drop the suit.

 

Why Viacom and Kellogg?

Their brands infiltrate nearly every aspect of children’s lives. Television commercials and Internet advertising combine with brand licensing, in-school marketing, promotions, contests, and advergames to sabotage parents’ best efforts to raise healthy children, turning kids into miniature lobbyists for products such as SpongeBob Squarepants Wild Bubble-Berry Pop Tarts and Dora the Explorer Fruit Snacks.  Consider these findings from the Center for Science in the Public Interest:

  • 100% (21/21) of Kellogg’s websites for children feature foods of poor nutritional value.

  • One study found that 98% of Kellogg’s commercials on Saturday morning television  were for foods of poor nutritional content.

  • In 28 hours of Nickelodeon, of 168 food commercials—148 (88%) were for foods of low nutritional value.

  • Nickelodeon has partnered with both McDonald’s and Burger King and its characters can be found on many packages of food of low nutritional value.

  • Junk food is advertised extensively on Nick.com, and Nickjr.com which are among the most popular websites for kids.

     

Why are you so concerned about junk food marketing? 

Childhood obesity is a major public health problem.  Overweight children are at risk for a number of serious medical problems including Type 2 diabetes; yet children continue to be inundated with ads for foods high in fat, sugar, salt, and calories.  The National Academies' Institute of Medicine recently concluded in an extensive literature review that food advertising influences children's food choices, food purchase requests, diets, and health.

 

Children have always been targets of food advertising.  I remember cereal commercials on Saturday morning TV when I was kid.  Is the situation really any different?  Can’t parents just turn off the TV?  

The situation has completely changed over the past twenty years.  Television programs for children are now on 24 hours-a-day, but even children whose parents limit their exposure to television are not protected from junk food marketing.   Marketer also use film promotions, product placement, brand licensing, Internet ads, advergaming (computer games built around a product) , viral marketing (using children to market to friends), guerilla marketing (using public space as venue for advertising), cell phone ads and in-school marketing to target children.  In 2005, the food industry alone spent $10 billion marketing to children. 

 

But can’t parents just say no to their kids’ food requests?  

In the debate over the causes of childhood obesity, parents are often given a bad rap. We hear arguments such as, children don’t drive themselves to fast food places, and that parents just need to turn off the television. Of course, parents have an important and critical role to play in teaching their children good eating habits and in modeling that behavior. However, we cannot ignore the fact that food corporations spend roughly $10 billion a year directly targeting children with junk food marketing. If parents are supposed to be the ones making decisions for their children, then why are companies bypassing parents altogether and marketing directly to kids.

Corporations such as Viacom and Kellogg’s aim to undermine parental authority by getting children to nag their parents. And it’s not only marketing for junk food that parents must contend with, but also for toys, video games, clothing, CDs, cell phones, computers--you name it. So, which battles are parents expected to fight? And why have we accepted a consumption driven society in which parents must continuously say no to their children who are being assaulted by marketing? 

 

Isn’t it another case of parents choosing not to take responsibility for their actions but instead placing the blame elsewhere? We do not see parents as powerless or as abdicating their parental responsibility when we pass child labor laws. Rather, we recognize that there are business forces so powerful and harmful that parents and society need to band together to fight them. Further, most people do not see laws banning alcohol, tobacco, and pornography sales to minors as evidence of parental failure or as an invitation for parents to become less vigilant in regards to these products. If anything, the opposite is true. Making these products illegal underscores how harmful they are and encourages parents to monitor their children's behavior in regards to them. These laws help parents to be good parents.

Andrew Leong and Sherri Carlson, the two parents who are plaintiffs in this lawsuit, recognized a legitimate threat to their children’s wellbeing.  Rather then simply trying to spend all of their time shielding their children from that threat, they decided to confront it head-on – not just on their own children but for the sake of children everywhere.  That sounds like responsible parenting to us.

Corporations spend a great deal of time and money devising ways to get to children by bypassing parents. They purposely undermine parental authority.  Are they not accountable for this? 

 

But it’s a corporation’s job to make money.  Do you really expect them not to market to children?

In fact, society already limits the corporate exploitation of children.  Otherwise there would be no child labor laws or laws forbidding the sale of alcohol, tobacco and pornography to minors. We'd just tell parents not to let their children work or buy these products. So the question isn't whether society's institutions have responsibilities to protect children, but rather what these responsibilities are. A civilized society strives to protect its children from adults that would exploit and harm them, even when those adults work for a corporation.

 

What is the legal basis of this lawsuit?

The case is being brought under a Massachusetts statute that is designed to protect consumers from unfair or deceptive advertising. Our argument is simply that it is unfair and deceptive to market to children under the age of 8 because they don’t have the cognitive ability to understand they are being advertised to. In other words, young children cannot perceive the “persuasive intent” of advertising. As far back as 1978, the Federal Trade Commission recognized this fact when the agency proposed a total ban on all TV ads aimed at young children. While industry might try to claim their marketing is protected by the First Amendment, deceptive advertising is not protected free speech.

 

Why is litigation necessary?

 Many people associate lawsuits with greedy trial lawyers. However, this case is not about money. It’s about getting irresponsible food and media corporations to stop using deceptive marketing practices to lure vulnerable children into a lifetime of destructive eating habits. Litigation has been an important tool of social change throughout our nation’s history. From the environment, to civil rights, to health care, public interest advocates have relied on the court system as a last resort when other avenues fail, in order to bring about much-needed improvements in the ways we live our lives.

 

Have you tried other avenues?

 Children’s advocates have been fighting for more than thirty years to get companies to stop targeting children with advertisements for unhealthy food, but to no avail. Large corporations have undue influence on Capitol Hill and the food industry and media industries are certainly no exception. Many regulations are inadequate to protect children, thanks to heavy industry lobbying. When all the other legal avenues have failed: government regulation, legislation, and industry self-regulation, that leaves only one remaining option: litigation.

 

Isn’t this just one more “frivolous lawsuit”?

 There has been much talk in the media lately of “frivolous lawsuits,” giving the wrong impression that many lawsuits against food companies are being filed. But in fact courts disallow baseless claims through the normal course of legal procedures. The companies’ lawyers will have ample opportunity to ask the court to dismiss the case early on in the litigation process. In addition, if the case is dismissed, the opposing counsel can ask the judge to sanction our lawyers for filing a frivolous claim. Because lawyers don’t like to pay fines or be sanctioned, this case was not brought lightly. Also, because filing a lawsuit takes such a tremendous amount of resources, few lawyers are willing to take big risks, especially against corporate defendants who can and do easily out-spend them, wearing them down. All of these potentially costly risks work quite well together to discourage the filing of “frivolous lawsuits.”

 

What are the benefits of litigation?

Lawsuits can bring an important issue into the public eye, which in turn puts pressure on legislators to act. A good example is how in the tobacco wars, litigation got the attention of Congress, who then held hearings to investigate industry practices. An avalanche of damning documents discovered through litigation revealed much malfeasance by tobacco companies. This was critical to shifting public opinion, giving policymakers the support they needed to pass significant public health measures that have reduced smoking rates and lessened exposure to secondhand smoke.

 

Why hasn’t the federal government acted?

For 30 years, children’s advocates have been trying to stop junk food marketing to children by asking the federal government to take action, but to no avail. We came close in the late 1970s, but the food and advertising industries mounted a $16 million lobbying campaign that threatened to shut down the entire Federal Trade Commission, the agency that proposed tighter regulations. Since then, the federal government has done virtually nothing, while technology has advanced to make marketing even more sophisticated and harmful to children. Also during that time, we have seen child obesity and diabetes rates begin to climb. And yet, last summer when the Federal Trade Commission and Department of Health and Human Services held a “workshop” on childhood obesity and food marketing, the result was a massive public relations opportunity for junk food companies. To this day, the agencies have yet to release a promised report on the proceedings, let alone promulgate regulations to actually address the problem.

 

Why can’t the food industry regulate itself?

Food and marketing companies favor “self-regulation,” which translates to the fox guarding the henhouse. The Children’s Advertising Review Unit (CARU) industry’s self-appointed and corporate-funded regulatory body has failed miserably to protect children since its inception in the mid-1970s. For example, CARU places no nutritional limits on the types of foods that can be marketed. Also, when CARU does act, companies rarely listen since CARU has no enforcement power. As Senator Tom Harkin of Iowa has noted: “CARU, frankly, has become a poster child for how not to conduct self-regulation.”

 

Special thanks to Michele Simon from the Center For Informed Food Choices for her expertise and help in drafting this FAQ.  To learn more about the politics of food and to sign up for "Informed Eating," a free monthly email newsletter that exposes food industry tactics and analyzes nutrition policy, please visit www.informedeating.org.

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