Last July, in an effort to reduce obesity, eleven major food and drink companies announced plans to restrict television advertisements to US children under the age of 12. Federal Trade Commission Chair Deborah Platt Majoras hailed this voluntary move, claiming that “industry action can bring change more quickly and effectively than government regulation of speech.” Since advocates seeking to reduce the harmful health consequences of the food, tobacco, alcohol, pharmaceuticals, firearms and automobile industries need to make decisions about the relative merits of voluntary industry action and public oversight, it is worth considering the evidence on this issue.
One way to assess the truth in Commissioner Majoras’s assertion is to examine other examples of industry self-regulation of products that harm health. For example, in his new history of the tobacco industry, The Cigarette Century, Harvard historian Allan Brandt explains that for decades, the tobacco industry claimed that its voluntary advertising guidelines precluded the need for stronger government regulation. For decades, until the 1970s, industry arguments – and their political contributions – persuaded Congress not to act. Smoking continued to increase until restrictions on advertising, bans on public smoking, and tobacco tax hikes helped to bring smoking rates down. Had the government resisted tobacco industry pressure by instituting these measures two decades earlier, when most of the scientific evidence against tobacco was already established, hundreds of thousands of premature tobacco deaths could have been averted.
Beer industry self-regulation
To avoid regulation of alcohol marketing, the beer industry established voluntary guidelinessetting rules on advertising content and placement. A 2006 independent review of the beer industry’s compliance with these guidelines found that beer makers met three of its 15 recommended standards, partially met four and failed to meet eight, hardly strong evidence for compliance. Research shows that exposure to alcohol advertising contributes to increased youth drinking. Each year about 4,500 young people die in the United States from alcohol-related causes, and two million more are injured.
Oversight of global food companies
Returning to the food industry, in 2005, the World Health Organization asked three nutritionists to evaluate how well McDonalds and Kraft, signatories to this week’s agreement, had kept their own promises to improve practices related to obesity. The reviewers found that the companies had, at best, made modest changes and continued to market unhealthy products to children. They concluded that “for business reason alone,” food companies “cannot” and “will not” “stop making and marketing nutritionally questionable food products to children” and therefore only regulatory intervention could protect children’s health.
Corporate arguments against public oversight
Interference with free speech. Corporations offer three main arguments against stronger public oversight of their health practices. First, they claim limits on advertising interferes with their right to free speech. The legal theory that the First Amendment protects corporations – commercial activities is relatively recent. Not until 1976 did the Supreme Court assert that corporate commercial speech warranted constitutional protection (Virginia State Board of Pharmacy v. Virginia Citizens Council, 1976). In that decision, the court found that a Virginia regulation banning advertising of pharmaceutical prices was unconstitutional. A consumer group argued that people had a right to pricing information, and the Supreme Court agreed. However, whether the right to provide consumers with factual information about a product also applies to speech promoting unhealthy food to children or potentially dangerous drugs to patients raises different legal issues. Since the current Supreme Court is more favorably disposed to corporate interests than at any time in its history, in the short run, the prospects for reducing successful challenges to expanded protection are slim. In the long run, however, giving commercial speech similar protection to political speech has created new threats to public health that require public consideration. Public health professionals may have the credibility to initiate this debate.
Nor is the FTC the only regulatory agency to take on a more pro-business slant during the Bush Administration. On September 1, 2007, the New York Timespublished a story on its investigation of the capacity of the Consumer Products Safety Commission to fulfill its mission. According to the Times, under President Bush, the CPSC has “blocked enforcement actions, weakened industry oversight rules and promoted voluntary compliance over safety mandates.” At a time when imports from China and other Asian countries surged, creating an ever greater oversight challenge, the Bush-appointed commissioners voiced few objections as the already tiny agency – now just 420 workers – was pared almost to the bone. By weakening the agency and failing to enforce its legislative mandates, charge consumer advocates, this Administration has turned its belief in the superiority of voluntary guidelines versus public oversight into a self-fulfilling prophecy.
Restriction of personal choice. The second principal argument against public oversight of harmful corporate practices is that it will prevent Americans from enjoying their freedom to eat, drink, or smoke what they want. In fact, in past decades, the loudest and most consistent influence on health and lifestyle today comes not from the “nanny state” but from corporate America. McDonalds spends more than a billion dollars a year to persuade children and their parents to fill up on high-fat Happy Meals that contribute to the nation’s obesity and diabetes epidemics. Philip Morris targets young people with ads that show smoking is fun, sporty and sexy while warning them that smoking is only for adults, a sure way to encourage experimentation. While courts force governments to use the least restrictive method possible to regulate private behavior that harms public health, corporations face no such limits in their efforts to persuade us to consume. Advertisers expose children to more than 20,000 television ads a year, placing their advertising in formerly non-commercial spaces such as cell phones, school classrooms, the sides of busses, taxis and even private SUVs, and use “viral marketing” techniques in which teens are hired to persuade their friends to buy certain products.
Leave it to Markets. The third argument against public oversight is that market forces are sufficient to modify harmful corporate practices and that well-intentioned but inadequately informed oversight will disrupt the market and produce unwanted and unintended side effects. The most frequently invoked historical example is the prohibition of alcohol, which is alleged to have created a black market, encouraged organized crime and promoted disrespect for the law. In the case of tobacco, however, market forces appear to have played a small role in controlling a product that contributed to 100 million premature deaths in the twentieth century. In fact, the market has been the principal savior of the tobacco industry, allowing it to find new populations to addict when public oversight restricted access in one place or to one group.
Public Health Arguments for Voluntary Guidelines
If only corporate leaders and their allies supported voluntary guidelines over public oversight, the task of public health advocates would be straightforward albeit challenging. We would need to make public arguments for oversight, mobilize constituencies who supported this position and convince policy makers to enact measures to protect public health. In fact, however, the public health community itself is divided on this question. Thus, it is necessary to examine the public health arguments for voluntary guidelines and to encourage open dialogue on this question within the profession.
Useful step in the right direction. Supporters of voluntary guidelines to modify corporate behavior advance several arguments. First, some claim that voluntary guidelines, even if inadequate, are a useful step in the right direction. When the advertising industry revised its voluntary guidelines for ads targeting children last November and several major food companies announced a new “healthy lifestyle” marketing campaign aimed at children, Dr. J. Michael McGinnis, a distinguished public health leader who served as chair of the Institute of Medicine’s Children’s Food Marketing Committee, said, “This is a move in the right direction. . . . It would be a pretty substantial change.” Critics responded that the guidelines didn’t go far enough. “I don’t see any substantial changes,” commented Susan Linn, a Harvard psychologist and author of Consuming Kids. Companies “will continue to be able to market junk food to children — and their marketing is going to be even more confusing for children because it will be linked to ‘healthy lifestyle’ messages.” In the case of tobacco, advocates argued that the industry crafted its voluntary guidelines to advance its business interests, limit future liability and avoid future regulation, not to protect public health, making the guidelines a step in the wrong direction.
Best possible deal under circumstances. A more pragmatic defense of voluntary guidelines is that however inadequate, such rules are better than nothing and perhaps the best option possible given political and economic constraints. Proponents of this position maintain that public disclosure of voluntary guidelines encourages political debate on the issue or sets the stage for later regulation. For example, in 2005, the New York City Department of Health and Mental Hygiene called on the restaurant industry to reduce voluntarily the use of trans fats. When a later survey showed that its call had gone unheeded, the Board of Health successfully instituted mandatory rules to eliminate trans fat.
Only public private partnerships have power to make meaningful changes. The belief that any public health successes require collaborative partnerships between the public and private sectors is deeply ingrained in mainstream American ideology. For example, Drs. Simon and Fielding, two leaders of the Los Angeles County Department of Health Services, assert that “all businesses and public health agencies share an interest: ensuring a healthy population. Businesses should have a financial interest in supporting organized public health efforts, and collaborative efforts can increase the reach and effectiveness of public health.” For those who believe that business and public health have an inherent confluence of interest, it is natural to seek partnerships. By allying with the power of big business, say the supporters of this approach, public health has a better chance of achieving its objectives.
Some advocates have a more critical view of partnerships. They argue that business can just as easily co-opt as support public health and that voluntary partnerships can be used as a substitute for more substantive protection. In a review of lessons for reducing obesity from advocacy efforts to modify tobacco, alcohol, firearms and automobile industry practices, Dorfman and her colleagues conclude:
Clearly both extremes – working too closely with the industry, or considering the entire industry a monolithic enemy – have downfalls. The best approach is to deal with the industry from a base of power. After the community organizing effort gels and there is a strong base of support in the community and solid strategic direction, then advocates can talk with the industry on their own terms.
In this view, the question is not whether to engage in discussions with industry about voluntary changes but rather under what circumstances, when and with what goals.
In summary, public health professionals offer compelling but contradictory arguments for and against voluntary corporate guidelines and stronger public oversight as strategies to reduce harmful corporate practices. To move beyond ideological assertions of the merits of one path or another will require systematic evidence that analyzes the outcomes of each option in a variety of circumstances. By focusing public health research on this question, public health officials and advocates can move towards evidence-based decisions that are based on concrete analyses of specific situations.
The stakes for finding the right balance between the two could not be higher. A recent study in the New England Journal of Medicine warned that if current trends on obesity and diabetes continue, our children and grandchildren will have shorter lifespans than we do. Choosing the right path to reduce the promotion of unhealthy food can help us avoid this prediction. Similarly, it is estimated that one billion people will die from tobacco-related diseases in the 21st century, a fate that can be changed only if the tobacco industry plays a different role in this century than in the last one.
Thus, providing more definitive guidance on how to choose when to support voluntary industry initiatives and when to insist on strong public oversight is literally a matter of life and death.
Nicholas Freudenberg is Distinguished Professor of Public Health at Hunter College, City University of New York.