Two aspects of the Federal Trade Commission (FTC) Act of 1938 give the FTC authority to more aggressively regulate food advertising to children.

Most child health experts agree that television advertising contributes to childhood obesity. The Institute of Medicine reports that TV advertising has an overwhelming influence on children’s food preferences; and, that young children cannot differentiate between TV advertising and programming.

This paper explores possibilities for more aggressive FTC regulation of how the food industry markets its products to children. The author evaluates the strengths and weaknesses of industry self-regulation; details the FTC’s regulatory authority under the Federal Trade Commission Act of 1938; explains why the current political climate favors more aggressive regulation; revisits legislation that cut back the FTC’s authority; reveals barriers to effective legislation; and suggests regulatory strategies based on the current scope of the FTC’s authority.

Key Findings:

• The unfairness doctrine of the Federal Trade Commission Act of 1938 allows the FTC to regulate advertising that is likely to cause injury to consumers or if consumers cannot reasonably avoid the injury.
• The Federal Trade Commission has the authority to restrict food advertising to children if the advertising is deceptive.
• The issue of causation, whether food advertising is directly injurious to children, poses a challenge to crafting legally defensible advertising regulations.

The food industry spends $1.5 billion marketing its products to children and adolescents. Historically, the FTC has refrained from taking an aggressive role in restricting food advertising; the agency has maintained that its role is to encourage the free flow of information in the marketplace. This paper examines the FTC’s authority to aggressively regulate food advertising.