Why self-regulation of children's advertising is a joke.
The Center for Science in the Public Interest, a Washington, D.C.-based nonprofit, is suing McDonald's in California state court over its use of toys to sell Happy Meals to young children. The practice, CSPI says in a class-action complaint, violates two California state laws. The complaint makes no mention of any federal laws. Given that McDonald's markets Happy Meals nationwide, why didn't CSPI file its complaint in federal court? Because the federal government imposes no restrictions on children's advertising.
Industry self-regulation is sometimes preferable to government regulation, especially on matters concerning free speech. Loopy as the Motion Picture Association of America's ratings system is, it's better than what you'd probably get by putting such decisions in the federal government hands. But the restrictions advertisers impose on themselves when they market to young children are, as any parent knows, extraordinarily accomodating. The use of toys to lure children to McDonald's is perhaps the best example.
It's never been easy to justify ads directed at young children. Below a certain age—7 years according to the Catholic church, 8 according to UNESCO—children don't have much ability to reason. They therefore are easy prey for adverters, against whom they are "cognitively and psychologically defenseless," according to the American Academy of Pediatrics. The Federal Trade Commission, which regulates advertising, tried in 1978 to craft a rule banning all ads directed at children under the age of 8; under pressure, the FTC subsequently changed that to children under the age of 6. Such advertising, FTC chairman Michael Pertschuk said, was "inherently unfair." But cereal, candy, and toy manufacturers went berserk, with the result that Congress blocked the rulemaking.
Instead, industry adopted voluntary standards established by the Children's Advertising Review Unit of the Council of Better Business Bureaus, an organization that, as I've written previously, ain't what it used to be. Many of these standards sound as if they ban the use of toys to entice kids to purchase happy meals, but on closer inspection, they don't.
Television "program personalities," for instance, "live or animated, should not be used to advertise products, premiums, or services"—sounds good, but keep reading: "in or adjacent to a television program primarily directed to children under 12 years of age in which the same personality or character appears [italics mine]." Never mind!
Here's another one. "Advertisers should recognize that the mere appearance of a celebrity or authority figure with a product can significantly alter a child's perception of the product." Bravo! But wait, there's more: "Advertisers may use such personalities as product endorsers, presenters, or testifiers, but they must take great care to avoid creating any false impression that the use of the product enhanced the celebrity's or authority figure's performance [italics mine]. In other words, the ads can't be fraudulent. That's the legal standard already imposed on advertising aimed at adults.
What about advertising aimed at getting kids to eat junk food? "Advertisements representing a mealtime should depict the food product within the framework of a nutritionally balanced meal." How can a Happy Meal possibly meet that criterion? By hiding the fries. When you see a TV ad for McDonald's directed at kids, you see a Happy Meal, all right, and you see kids holding little thingies that, if you aren't paying close attention, you might mistake for McDonald's french fries (which, half a century after McDonalds' founding, remain the only edible thing on the menu). But those aren't french fries! They're something I've never even heard of before called Apple Dippers, which turn out to be little slices of apple that you dip into low-fat caramel. And sure, it is possible to imagine a bioengineered child who, on being taken to McDonald's, would ask that instead of being given fries he be given little apple slices that he can dip into low-fat caramel. But if the child doesn't ask, he won't likely hear his server ask, "Would you like french fries or would you like Apple Dippers?" That's like asking the kid if he wants to go out to recess or stay inside to clap erasers. CSPI tested this proposition in 44 McDonald's outlets and found that french fries were included automatically more than 90 percent of the time. People go to McDonald's for the fries.
When the voluntary ad standards were announced in 2006, McDonald's supported them. In 2007 it formally signed onto a special pledge under the Children's Food and Beverage Advertising Initiative to feature in any national advertising directed at kids under 12 "products that reflect healthy dietary choices." The meals advertised will "provide no more than 600 calories" and meet various other criteria. That's hard to do at McDonald's. The company meets the standard by showing Happy Meals with Apple Dippers that look like french fries and lowfat milk, which of course looks exactly like whole milk. A real Happy Meal—cheeseburger, fries, and a Sprite—has 640 calories, according to CSPI (which recommends "for a typical sedentary four- to eight-year old" no more than 430). There's not a word in the special pledge about getting kids through the door by offering them toys.
It's the toys, far more than the calories, that bother me. Although I'm sure McDonald's contributes to the national obesity epidemic in various ways I don't want to think about, I never begrudged my kids their Happy Meals when they were little. They loved McDonald's then; they don't much like it now that they're teenagers (though it will do in a pinch). Happy Meals you can outgrow. What irritated me when they were little was the way they clamored to go to McDonald's for the toys. Sometimes you didn't even get a whole toy; you got a piece of a toy that needed to be connected to X number of other pieces to get you the whole toy, necessitating X-minus-one additional Happy Meals. I would have been annoyed by this blatant manipulation even if McDonald's had been feeding my kids tofu.
The Children's Advertising Review Unit guidelines—not the customized version signed by McDonald's, but the document created for everyone in 2006 (and updated in 2009)—contain a section on "premiums" that would appear to apply to Happy Meals. "Since children have difficulty distinguishing product from premium," the document says, "advertising that contains a premium message should focus the child's attention primarily on the product and make the premium message clearly secondary." That standard covers a multitude of sins. But lets take a look at that McDonald's ad again. It's a tie-in with the movie Megamind, featuring some sort of Megamind toy. I don't know about you, but when I watch it my attention isn't focused primarily on the Happy Meal. It's focused on Megamind. If I go to McDonald's I will get this cool Megamind toy. That's where my mind goes. And I barely know what Megamind is!
Timothy Noah is a former Slate staffer. His book about income inequality is The Great Divergence.