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.