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Possibilities for Administrative Regulation of Food Marketing

Possibilities for Administrative Regulation of Food Marketing. Michelle Mello, JD, PhD Harvard School of Public Health. Roadmap. Why administrative regulation? Scope of FTC authority Potential regulatory strategies. Roadmap. Why administrative regulation? Scope of FTC authority

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Possibilities for Administrative Regulation of Food Marketing

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  1. Possibilities for Administrative Regulation of Food Marketing Michelle Mello, JD, PhD Harvard School of Public Health

  2. Roadmap • Why administrative regulation? • Scope of FTC authority • Potential regulatory strategies

  3. Roadmap • Why administrative regulation? • Scope of FTC authority • Potential regulatory strategies

  4. Advantages of administrative regulation • No legislative consensus building required • Relatively rapid • Formal opportunity for public comment • Agency expertise • Relatively easy to modify later But…potentially formidable political barriers

  5. Roadmap • Why administrative regulation? • Scope of FTC authority • Potential regulatory strategies

  6. FTC’s regulatory authority • 1938: Granted statutory power to regulate “unfair or deceptive acts or practices in or affecting commerce” • Remedies: can quash advertisements or require corrective advertising • 1980: Stripped of authority to promulgate rules regulating children’s advertising on an unfairness theory • 1994: Statutory amendments further restricted unfairness authority

  7. The unfairness doctrine • A practice is “unfair” if: • It is likely to cause substantial injury to consumers; • The injury is not reasonably avoidable by consumers; and • The injury is not outweighed by countervailing benefits to consumers or competition.

  8. The deception doctrine • Advertising is “deceptive” if: 1. A claim is made; 2. The claim is likely to mislead a reasonable consumer; and • Child-oriented advertising is evaluated in light of how the target age group would perceive it 3. The claim is material. • No proof of consumer injury required

  9. Barriers to regulating food ads “I continue to have confidence that self-reg and industry initiatives can effectively contribute, and to believe that industry action can bring change more quickly and effectively than government regulation of speech.” - FTC Chairman Deborah Platt Majoras, July 2007 • FTC’s current posture • Emphasis on the concept of reasonable avoidance • Antipaternalism • Unavailability of unfairness doctrine • Causation • The puffing/deception distinction • Tailoring

  10. Roadmap • Why administrative regulation? • Scope of FTC authority • Potential regulatory strategies

  11. Strategies for FTC regulation • Regulate under deception doctrine • Restore unfairness authority • Further encourage voluntary restrictions

  12. Other strategies • Administrative enforcement of state consumer protection laws • Private lawsuits under state consumer protection laws • School-based marketing restrictions

  13. Conclusions • FTC has considerable latitude to regulate individual food ads more aggressively • Rulemaking to restrict child-oriented ads as inherently unfair would require a statutory amendment • Not clear how voluntary restrictions will be enforced

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