EXTENDING THE FANTASY IN THE SUPERMARKET: WHERE UNHEALTHY FOOD PROMOTIONS MEET CHILDREN AND How THE GoVERNMENT CAN INTERVENE Jennifer L. Pomeranz, ID, MPH* I. INTRODUCTION ...................................................................................... 118 II. THERETAILENVIRONMENT ................................................................. 119 A. Background and Definitions ................................................... 119 B. Food Promotions Directed at Children .................................. 121 C. Industry Self Regulatory Pledges and Nutritional Quality of Food Promoted to Youth .......................................................... 123 Ill. RESEARCH ON EFFECTIVENESS OF CHILD-TARGETED PROMOTIONS .126 A. In-Store Promotions ................................................................ l27 B. Packaging and Packaging Promotions ................................... I31 I. Licensed Characters and Company Spokescharacters ....... 132 2. Other Package Promotion Techniques ............................... 135 C. Summary ................................................................................. 137 IV. REGULATING IN-STORE AND PACKAGE PROMOTIONS TO PROTECT CHILDREN .................................................................................................. 137 A. Government's Role in the Protection of Children .................. 139 B. Regulating the Food Retail Environment ................................ l44 V. FOOD AND BEVERAGE PACKAGING ..................................................... 145 A. Central Hudson Overview ....................................................... 146 B. Government Restrictions on the Use of Characters on Products ....................................................................................... 152 1. Characters are Deceptive and Misleading Under Prong One of Central Hudson ............................................................ 152 2. Refuting Industry Responses ............................................... 157 3. Character Restrictions Should Pass the Central Hudson Test ........................................................................................... 159 C. Other Package Restrictions .................................................... 164 VI. REGULATION OF IN-STORE PROMOTIONS AND PLACEMENT .............. 166 A. In-Store Advertising Restrictions ............................................ 166 B. In-Store Regulations ofConduct ............................................. 168 I. Non-expressive and Expressive Conduct ............................ 168 2. Other Standards to Regulate Conduct ................................ 173 C. Constitutional Analysis of the In-Store Regulations ............... 175 1. Regulating Product Location Based on Nutritional Criteria ............................................ ......................................... 175 2. Regulating Product Location Based on Nutritional • Director of Legal Initiatives at Rudd Center for Food Policy & Obesity, Yale; MPH, 2006, Harvard School of Public Health; J.D., 2000, Cornell Law School. 118 INDIANA HEALTH LAW REviEW [Vol. 9:1 Criteria and Character Use ................................................. .... 177 a. Analysis under 0 'Brien .................................................. 179 b. O'Brien inquiry continued .............................................. 184 VII. CONCLUSION ..................................................................................... 185 I. INTRODUCTION The first exposure to the marketplace for most children comes as soon as they become a passenger in a shopping car at the grocery store.1 Alt­ hough they do not yet know it, they are being marketed to by the food and beverage industry through packages, promotions, and displays surrounding them during this shopping experience. The marketing of unhealthful foods to children is a significant contributor to the epidemic of childhood obesity.2 The FTC found that in 2006, food and beverage companies expended $195 million, second only to the amount spent on television advertising, on pack­ aging and in-store displays targeted to children and adolescents. Since then marketing within retail establishments has grown rapidly. Almost all of the products marketed to children in retail establishments are for food of low nutritional value and tend to be high in salt, sugar, or fat.3 Industry self­ regulatory pledges do not apply to this environment, and researchers have recently begun to systematically look at the retail environment and its rela­ tionship to children's nutrition-related beliefs and behaviors.4 The primary means of in-store marketing are front-of-package design (especially the depiction of characters popular with children) and the strate­ gic placement of the products within the store (e.g., placement in check-out aisles and free standing displays). Packaging and displays are particularly important to capture the interest of young children who have limited ability to read.5 In fact, food companies use trained psychologists to create posi- 1. Deborah John, Consumer Socialization of Children: A Retrospective Look at Twenty-Five Years of Research, 26 J. CONSUMER. REs. 183, 192 (1999). 2. Cynthia Ogden et al., High Body Mass Index for Age Among U.S. Children and Adolescents, 2003-2006,299 JAMA2401 (2008). 3. See, e.g., Jonathan Lynn, WHO Recommends Food Marketing Curbs for Child Obesity, REurERs, Jan. 21, 2011, available at http:llwww.reuters.com/article/2011/01/21/us­ food-safety-idUSTRE70K4FU20110121; see also Stacy Finz. Front Labels on Food for Children Called Deceptive, S.F. CHRON., Jan. 20, 2011, at A-1, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/20 ll/01/20/MNJM1HBICE.DTL. 4. See, e.g., Jennifer L. Harris et al., Marketing Foods to Children and Adolescents: Licensed Characters and Other Promotions on Packaged Foods in the Supermarket, 13 PuB. HEALTIINUTRITION 409 (2009). 5. Billur Ulger, Packages with Cartoon Trade Characters Versus Advertising: An Empirical Examination of Preschoolers' Food Preferences, 15 J. Fooo PRODUCTS MARKETING 104 (2009). 2012] GOVERNMENT INTERVENTION IN UNHEALTHY FOOD PROMOTIONS 119 tive reactions in children upon seeing their products.6 The majority of foods marketed to children in retail stores feature characters on the packaging, which has been shown to manipulate children's food related beliefs and in­ duces them to request these products to their parents. 7 This promotional method undermines the parents' role as "nutritional gatekeeper'' and has been shown to strain parent-child interactions. 8 From the industry's perspective, "point-of-purchase materials" are "intended to lure young fans" of a popular character, movie or the like to the food product bearing the character, such as for Pokemon cereal.9 For example, at the inception of Barbie cereal, when 95% of girls ages three to ten owned at least one Barbie, industry representatives explained that the product would be part of the ••exciting and glamorous world of Barbie" and "extends the fantasy" for "little girls who •play Barbie. "'10 This paper summarizes research concerning the extent of in-store marketing of foods to children and the effects of such marketing. Next it identifies several different ways that the federal and state or local govern­ ments might regulate in-store and package-based marketing and industry arguments against such regulations. Finally, it analyzes how courts would likely scrutinize the constitutionality of such regulations· to identify which approaches are most likely to make a positive impact on public health and succeed if challenged in court. II. THE RETAIL ENviRONMENT A. Background and Definitions Marketing within food retail establishment has been ·increasing and projections state that this is the "fastest-growing area of marketing invest­ ment for packaged-goods marketers. "11 The most recent industry reports indicate that 83% of food, beverage and consumer product marketers plan to increase investments into what the industry terms, "shopper market­ ing. " 12 Shopper marketing is defined as, "the employment of any marketing 6. BRIAN WILCOX ET AL., REPoRT OF THE AP A TASK FORCE ON ADVERTISING AND CmlDREN 20 (2004). 7. See Part ID.B., infra. 8. FAQ About the Book, M:INDLESSEATlNO.ORG, http://mindlesseating.org/faq.php (last visited Oct. 30, 2011). 9. Stephanie Thompson, Kellogg's New Cereal Goes Pokemon, ADVERTISING AGE, Mar. 13, 2000, at 6, available at http://adage.com/article/newslk:ellogg-s-cereal­ pokemonl59084/. 10. Cyndee Miller, Cereal Maker to Kids: Eat Breakfast with Barbie, MARKETING NEWs, Sept. 25, 1989, at 10 (internal quotation marks omitted). 11. Jack Ne~ Shopper Marketing Trumps Digital in Spending Plans for CPG Mar­ keters, ADVERTISING AGE, Nov. 9, 2010, available at http://adage.com/article/newslshopper­ marketing-trumps-digital-spending-plan~gll46959/. 12. Sarah Mahoney, Shopper Marketing Grows Faster than Digital, Social, 120 INDIANA HEAL Til LAW REVIEW [Vol. 9:1 stimuli, developed based on a deep understanding of shopper behavior, de­ signed to build brand equity, engage the shopper (i.e., an individual in "shopping mode"), and lead him/her to make a purchase."13 A study by the Grocery Manufacturers Association (''GMA'') and Deloitte explained the premise behind shopper marketing: [M]anufacturers and retailers can together create a more engaging shopper experience, influencing shop­ pers at the point of purchase where they make most final buying decisions. Shopper marketing is about using insights, . . . to deliver the right environment, right products, right packaging, right prices, and right marketing communication-combined to satisfy the shopper in a way that was not traditionally possible. 14 Shopper marketing studies typically analyze shoppers in general so promotional techniques intended directly for children are not often reported separately. One exception is the technique termed, the "nag factor," defined as "an indirect path beginning with promotional activities influencing chil­ dren, who then request that their parent(s) buy the product, followed by the parent(s) making the decision and/or purchase."1s The retail environment is a concern for public health and child advocates because the majority of food targeted to youth in this venue is of poor nutritional value, and promotions encourage children to request (and prefer) these unhealthy products. The "bread and butter" of shopper marketing is considered to be prod­ uct packaging and in-store displays, ads, and promotions.16 This manu­ script will focus on the two main areas of shopper marketing: packaging and in-store promotions and displays, while touching on related tools. The defmitions used by the Federal Trade Commission ("FTC") when it ordered forty-four food and beverage companies to disclose information on their marketing expenditures directed at children and adolescents (collectively ''youth") are helpful.17 MEDIAPOST PuB. (Nov. 9, 2010, 5:00 AM), http://www.mediapost.com/publications/article/ 139107/. 13. GMA & DELOI'ITE, SHoPPER MARKETING sruov: DELIVER1NG THE PRoMISE oF SHOPPER MARKETING 8 (2008). available at http://www.deloitte.com/assets/Dcom­ UnitedStates/Localo/o20AssetsiDocuments/us -'cb _ cpg_ DeloitteGMA _Shopper _Mkt _Report_ 200810.pdf. 14. ld. 15. Eileen Bridges & Richard Briesch, The 'Nag Factor' & Children's Product Cate­ gories, 251NT'LJ.ADVER. 157,157-58 (2006). 16. GMA SALES CoMM. & Booz & Co., SHOPPER MARKETING 4.0: BUILDING SCALABLE PLAYBOOKS TIIAT DRivE REsuLTS 5 (2010), available at http://www.gmaonline.orgldownloadslresearch-and-reports/Shopper_ Marketing_ 4.0.pdf. 17. For all FTC definitions, children were categorized as younger than twelve years and adolescents twelve to seventeen years old. See, e.g., FED. TRADE CoMM'N, MARKETING FOOD TO CHILDREN AND ADoLESCENTS: A R.IMEW OF INDuSTRY ExPENDITURES, ACTIVITIES, 2012] GoVERNMENTINTERVENTIONINUNHEALTHYFOODPROMOTIONS 121 Packaging includes all product packaging·and labeling (including all words and images) for any of the company's food products designed to ap­ peal to youth.18 According to federal law, written. printed, or graphic mat­ ter accompanying the product is considered part of the label, such as a shelf tag with a character promoting the product placed on the accompanying shelf.19 Influential features on packaging were also independently measured by the FTC including the use of character licensing, toy co-branding, celeb­ rity endorsements, and cross-promotions-the linking of a food or beverage to a licensed character, a new movie, or a popular television program.20 In addition, the use of premiums was individually measured,· and premiums are defined as non-food· specialty items distributed in· connection with the product within food packages or by sale or the redemption of coupons, codes, or proofs ofpurohase.21 ln'-store advertising and promotions include "advertising displays and promotions at a retail site, including the offering of free samples and allowances paid to facilitate shelf placement or mer­ chandise displays" designed to appeal to youth.22 ·B. Food Promotions Directed at Children The FTC's Food Marketing Report found that food and beverage AND SELF-REGULATION 1 (2008) (hereinafter MARKETING FOOD 10 CHILDREN AND ADoLESCENTS], available at www.ftc.gov/os/2008/07/P064504foodmktingreport.pdf. 18. This includes: prominently featured youth-oriented licensed characters, celebrity endorsers, models or characters who are or appear to be· younger than· age ·eighteen, lan­ guage, such as "kid," "child," "tween," "adolescent," ~'teen," "teenager," or similar words, or youth-oriented themes, activities, incentives, products, or media. FEDERAL TRADE CoMM'N, MARKETING FOOD ro CHILDREN & ADoLESCENTS: A REviEw OF INDUSTRY EXPENDITURES, ACTIVITIES, & SELF-REGULATION: APPENDICES B-16, B-30 (2008) (hereinafter MARKETING FOOD 10 CHILDREN AND ADoLESCENTS: APPENDICES], available at http://www.ftc.gov/ os/2008/07/P064504fuodmktingreportappendices.pdf 19. The Federal Food, Drug and Cosmetic Act defines label to mean "a display of written, printed, or graphic matter upon the immediate container of any article," 21 U.S.C. § 321 (k) (2009), and the term "labeling" means "all labels and other written, printed, or graph­ ic matters (1) upon any article or any of its containers or wrappers, or (2) accompanying such article," 21 U.S.C. § 321(m) (2009). The Supreme Court found that the definition of labeling covered a pamphlet with literature about the product that was shipped with the product but also interpreted it to include the pamphlet if it was available separately. Kordel v. United States, 335 U.S. 345, 347-50 (1948). In a case more on point, a district court re­ lied on this precedent to find that in-store statement: "vitamins + water = what's in your hand" that "accompanied the sale" of the beverage vitaminwater constituted labeling. Ackerman v. Coca-Cola Company, 2010 U.S. Dist. LEXIS 73156, at *16, *25-26 (E.D.N.Y. July 21, 201 0) (The court was not explicit but likely the statement was on a shelf-tag.). 20. MARKETING FOOD TO CHILDREN AND ADoLESCENTS: APPENDICES, supra note 14, at B-20, B-23-24, B-34-35, B-37-38. 21. Id at B-18--19, B-32-33. 22. Such design elements may involve the height of placement or display to reach youth, and the use of licensed characters, images of youth, and language such as "kid," "child," "adolescent" ''teen," "teenager," or similar words. MARKETING FOOD TO CHILDREN AND ADoLESCENTS: APPENDICES, supra note 14, at B-18, B-32. 122 INDIANA HEALTH LAW REVIEW [Vol. 9:1 companies spent $195 million on packaging and in-store display materials to reach children and adolescents. 23 This represents 12% of all reported youth marketing expenditures and is second only to television advertising. 24 The products marketed to youth in this manner included in decreasing order of expenditures: snacks, breakfast cereals, carbonated beverages and can­ dy/frozen desserts, and juice and non-carbonated beverages.25 Nearly $90 million ( 46% of all youth-directed expenditures for packaging and in-store marketing) was spent on teen-directed marketing of carbonated beverages alone.26 Studies show that young children as well as teens are influenced by teen-directed marketing in the retail environment?7 The FTC found that integrated advertising campaigns, which combine several marketing techniques and often involve cross-promotions, dominate today' s landscape of food marketing to youth. Cross-promotions are used in many media venues (e.g., television, packaging, internet), account for 13% of all reported youth-directed marketing expenditures, and involve the use of licensed characters spokescharacters, games, contests, sweepstakes, movie and television tie-ins, toys, and entertainment events.28 Finally, the companies reported spending $67 million to reach youth through premiums, which accounted for 4% of all marketing expenditures. Child-targeted breakfast cereals accounted for 93% of all expenditures on premiums (approximately $40 million).29 It is important to note that this does not represent all premiums directed at youth because the companies reported that cross-promotional partners often covered the cost of premi- 23. Study of Food Industry Marketing to Children and Adolescents; Orders to File Special Report, FTC Matter No.: P094511, FED. TRADE COMM'N, http://www.ftc.gov/ os/6b_orders/foodmktg6b/P094511/index.shtm (last modified Aug. 27, 2010) (In 2010, the FTC subpoenaed forty-eight food and beverage companies gain information advertising expenditures and methods for the year 2009 and to determine whether self-regulation was having the appropriate impact on marketing to children. Some companies of the original forty-four were left off the new list and twelve new companies were subpoenaed); see also Rich Thomaselli, FTC Subpoenas 48 Food Companies Regarding Marketing to Kids, ADVERTISING AGE, Sept. 1, 2010, available at http://adage.eom/article?article_id=l45675. 24. MARKEriNG FOOD TO CHILDREN AND ADOLESCENTS, supra note 13, at 8. 25. Id 26. Id. at 18 (The next largest in store expenditure was $18.2 million for snacks). 27. See Phyllis Ellickson et al., Does Alcohol Advertising Promote Adolescent Drink­ ing? Results From a Longitudinal Assessment, 100 ADDICTION 235 (2005), available at http://onlinelibrary.wiley.com/doillO.lll1/j.1360-04432005.00974.x/pdf (reporting. that, among other findings, for seventh-grade non-drinkers, exposure to in-store beer displays predicted drinking onset by grade nine); Sandy Slater et al., The Impact of Retail Cigarette Marketing Practices on Youth Smoking Uptake, 161 ARCHIVES OF PEDIATRIC & ADoLESCENT MED. 440 (2007), available at http://archpedi.ama-assn.org/cgilreprint/16l/5/440.pdf (find­ ing that cigarette retail marketing practices increase the likelihood of smoking uptake in youth); cf Hazelwood Sch. Dist v. Kuhlmeier, 484 U.S. 260, 274-75 (1988) ("It was not unreasonable for the principal to have concluded that such frank talk was inappropriate in a school-sponsored publication distributed to 14-year-old freshmen and presumably taken home to be read by students' even younger brothers and sisters."). 28. MARKETING FOOD TO CHILDREN AND ADoLESCENTS, supra note 13, at 8. 29. Id at 19. 2012] GoVERNMENT INTERVENTION IN UNHEALTHY FOOD PROMOTIONS 123 ums.3o -In 2005, the Institute of Medicine ("10M'') found that child-targeted food products are high in total calories, sugars, salt, fat, and low in nutri­ ents.31 The food identified by the FTC study as those most promoted to children in 2006 through packaging, premiums, and in-store marketing are considered non-nutritious by objective nutrition criteria and scientific re­ search: snacks, breakfast cereals, carbonated beverages, candy, frozen des­ serts, and non-carbonated beverages.32 More recent studies have confirmed that this environment has not improved despite the fact that in 2006 the Council of Better Business Bureaus and leading food and beverage compa­ nies launched the Children's Food and Beverage Advertising Initiative ("CFBAI'') "to shift the mix of advertising primarily directed to children Cchild-directed advertising') to encourage healthier dietary choices and healthy lifestyles."33 C. Industry Self Regulatory Pledges and Nutritional Quality of Food Pro­ moted to Youth Fifteen packaged food and beverage manufacturers are members of the CFBAI. 34 Through their pledges, these companies vowed to restrict their 30. Id. Partners, such as a toy or media company, often covered the premium costs, such as sweepstakes prizes or DVD rebates. Id. 31. COMM. ON FooD MKTG. AND nm DIETS OF CHILDREN AND YOUTH. INST. OF MED., FOOD MARKETING TO CIDLDREN AND Youm: THREAT OR 0PPoR1UNITY? 163 (2005). 32. JENNIFER L. HARRIS ET AL., YALE RUDD CENTER FOR FOOD POUCY & OBESITY, CEREAL F.A.C.T.S.: EVALUATING TilE NUTRI110N QuALITY AND MARKETING OF CIDLDREN'S CEREALS (2009), available at http://www.cerealfacts.org/media/Cereal_F ACTS_ Report.pdf. For example, carbonated beverages and other sugar-sweetened drinks have been determined to be the largest single contributor to obesity and an independent risk factor for diabetes and heart disease. Vasanti Malik et al., Sugar-Sweetened Beverages, Obesity, Type 2 Diabetes Mellitus, and Cardiovascular Disease Risk, 121 CIRCULATION 1356 (2010); Vasanti Malik et al., Intake of Sugar-Sweetened Beverages and Weight Gain: A Systematic Review, 84 AM. J. CUNICAL NU1RITION 274 (2006); Samara Nielsen & Barry Popkin, Changes in Beverage Intake Between 1977 and 2001, 27 AM. J. PREvENTivE MEn. 205 (2004); David Ludwig et al., Relation Between Consumption Of Sugar-Sweetened Drinks and Childhood Obesity; A Prospective, Observational Analysis, 357 THE LANCET 505 (2001) (finding that a child's risk ofbecoming obese increases by 60% for each serving of sugar sweetened beverage the child drinks each day). 33. About Children's Food and Beverage Advertising Initiative, BETTER BUSINESS BUREAU, http://www.bbb.org/us/about-children-food-beverage-advertising-initiative/ (last visited Feb. 26, 2012). 34. The food companies are: Cadbury Adams, USA. LLC, Campbell Soup Company, The Coca-Cola Company, ConAgra Foods, Inc., The Dannon Company, General Mills, Inc., The Hershey Company, Kellogg Company, Kraft Foods Global, Inc., Mars, Inc., Nestle USA. PepsiCo, Inc., Post Foods. LLC, Sara Lee Corp., Unilever United States. Two restau­ rants are also members but are not included in this analysis: Burger King Corp., McDon­ ald's USA. See .Karlene Lukovitz, Industry Unveils New Marketing-to-Kids Standards, MEDIAPosT PuB. (July 15, 2011, 9:29AM), http://www.mediapostcom/publicationslarticle/ 154139/industry-unveils-new-marketing-to-kids-standards.html. 124 INDIANA HEAL1H LAW REVIEW [Vol. 9:1 use of certain marketing practices V>ia specific media to food that meets their own internal nutritional criteria. 35 Although each company's pledge is unique, the CFBAI announced that- uniform nutrition standards would be launched on December 31, 2013.36 The stated goal of CFBAI is to promote and support healthier dietary choices and healthy lifestyle to children under twelve years of age.37 How­ ever, the CFBAI Core Principles Statement explains that participants' commitments explicitly exclude point of sale materials, packaging, and the use of company-owned characters.38 No pledge covers in-store marketing and only two companies have a minimal exception· for their products' pack­ aging; Kellogg's and General Mills restricts their use of third-party child­ directed licensed characters on· packaging according to internal nutrition standards.39 However, both of these companies have a wide variety of well­ established company spokescharacters for their products intended for chil­ dren (e.g., the Lucky Charms Leprechaun, theTrix Rabbit, Tony the Tiger, and Snap, Crackle and Pop) that they use on:their packaging. There are no pledges addressing the use of company spokescharacters on packaging or in-store promotions. Child-targeted food product packag;.. ing also bears other promotions including the . use of premiums, cross­ promotions, tie-ins· for movies and television shows, games, puzzles, con­ tests, sweepstakes, special colors, shapes or flavors, and claims or allusions to fun.40 35. Core Principles Statement states that the pledges cover some or all of the follow­ ing media: television, print, radio, internet, video/computer games, DVDs, cell phones, PDAs, and word of mouth advertising. See BE'ITER BUSINESS BUREAU, CHILDREN'S FooD & BEVERAGE ADVERTISING INITIATIVE PROGRAM & CoRE PRINCIPLES STATEMENT (201 0), avail­ able at http://www.bbb.orglus/storage/O/Shared%20Documents/Enhancedo/o20Core% 20Principleso/o20Thirdo/o20Editiono/o20-o/o20Letterhead.pdf. . 36. About Children's Food and Beverage Advertising Initiative, BEITER BUSINESS BUREAU, http://www.bbb.org/us/about-children-food-beverage-advertising-initiative/ (last visited Feb. 26, 2012). 37. The pledges state that the companies will limit the use of one or all of the follow­ ing: licensed characters, celebrities, athletes and movie-tie-ins, to covered media according to their own internal nutrition criteria. Eight of the pledges say they do not advertise to chil­ dren under six years old. See id; see also Pre-2010 Company Pledges, BETTER BUSINESS BUREAU, http://www.bbb.org/us/children-food-beverage-advertising-initiative/pledges/ (last visited Oct. 1, 2011). 38. BETTER BUSINESS BUREAU, supra note 33 (Unilever and Campbell's Soup also explicitly exclude packaging and in-store prolllQtions ftom their pledges), 39. Jd. General Mills limits its use of third-party child-directed licensed characters to packaging for products that meet its Healthy Dietary Choice criteria and sugar guideline. BETTER BUSINESS BUREAU, THE CHILDREN'S FOOD & BEVERAGE ADVERTISING INITIATIVE IN ACTION: A REPoRT ON COMPUANCE AND IMPLEMENTATION DuRING 2008 34 (2009), availa­ ble at http://www.bbb.org/us/storage/0/Sharedo/o20Docunients/:tinalbbbs.pdf. Kellogg's limits its use of child-directed licensed characters on the front panels of its packaging and as the basis for its ''food forms," to products that meet its nutrition guidelines. BETTER BUSINESS BUREAU, supra note 33, at 4 n.5. 40. Charlene Elliott, Assessing 'Fun Foods': Nutritional Content & Analysis of Su­ permarket Foods Targeted at Children, 9 OBESITY REVIEWS 368 (2008); MARKETING FOOD 2012] GoVERNMENT INTERVENTION IN UNHEALTHY FOOD PROMOTIONS 125 The food retail environment has not improved since the initiation of the CFBAI because packaging is not included in the pledges.41 Researchers found that from 2006 to 2008, the U.S. supermarket environment has de· clined. Only 73 of 397 foods (18.4%) assessed in one study met 10M standards of healthy; thus over 81% of the foods promoted to children were unhealthy according to these objective nutrition criteria.42 Further, 790/o of all food package promotions were directed at children under twelve, with 22% directed at preschool·age children and 57% directed at children. 43 From 2006 to 2008, many companies increased their use of promotional methods not covered by the CBBB pledges, for example targeting an older youth audience or tie· ins to non·media partners such as toys and games. 44 A 2008 study of cereals found that those most marketed to children are the least healthy of the companies' products lines.45 Children's cereals contain 85% more sugar, 65% less fiber and 60% more sodium compared to adult cereals, but they all meet the companies' self·regulatory pledges.46 In a 2011 study of fifty·eight children's products considered "Better-for-You" by members of the CFBAI, only nine products met objective nutrient crite­ ria.47 The study revealed that 93% of the cereals, 90% of the snacks and 75% of the beverages were high in sugar according to government nutrition standards.48 Further, of the prepared meals, approximately one-third were high in saturated fat, low in fiber, and high in sodium.49 Thus, despite the e:x,istence of the CFBAI, concerns remain because the pledges are not based on strong nutritional criteria and exclude key TO CHILDREN & ADoLESCENTS, supra note 13, at 1; Harris et al., supra note 4. 41. See RUDD CENTER FOR FOOD POUCY AND 0BilSITY, supra note 28 (for example, in 2008, preschoolers saw 642 cereals ads, children saw 721 cereal ads and 800/o of them had the worst nutrition ratings (85% more sugar, 65% less fiber, and 60% more sodium than those advertised to adults)). 42. Harris et al., supra note 4. 43. Id. See also Elliott, supra note 36. A study of foods targeted to children in a Ca­ nadian supermarket (excluding confectionary, soft drinks, and bakery items) found them to be 89% of poor nutritional value. Three out of four of the products targeted to children had a cartoon image on the front of the box. It is also noteworthy that 63% of all the foods target­ ed to children had one or more nutrition claims and 62% of the foods of poor nutritional value had one or more nutrition claims. This is problematic because the use of characters, games, colors, etc. are used to attract children to the products while the nutrition claims are used to either attract or appease parents when their children request the product. See also Kathy Chapman et al., The Extent & Nature of Food Promotion Directed to Children in Australian Supermarkets, 21 HEALTH PRoMOTION .INT'L 339 (2006), available at http://heapro.oxfordjoumals.org/content/2114/331.full.pdfthtml. For seven food categories in Australian supermarkets that were promoted to children (sweet biscuit, snacks, confec­ tionary, chips/savory, cereals, dairy snacks, iCCHnaJD), 82% were unhealthy. 44. Harris et al., supra note 4. 45. RUDD CENTER FOR FOOD POUCY AND OBESITY, supra note 28. 46. Id 47. THE PREVENTION INSTITUTE, CLAIMING HEALTH: FRONT-oF-PACKAGE LABELING OF CHILDREN'S FOOD 6 (2011), available at http://www.preventioninstitute.orglcomponent/ jlibrary/articleldownload/id-593/127 .html. 48. Id. 49. Id. 126 INDIANA HEALTH LAW REVIEW [Vol. 9:1 marketing venues. Since the pledges do not cover retail marketing tech­ niques and package promotions (with two minor exceptions), they are not comprehensive enough to protect children in the retail environment. If the government believes it must step in because the CFBAI does not adequately regulate companies' marketing of unhealthy products to children, the mem­ bers will have missed their opportunity to self-regulate and may be subject to regulation. 50 III. RESEARCH ON EFFECTIVENESS OF CHILD-TARGETED PROMOTIONS The seminal paper on children's development as consumers is John's analysis of twenty-five years of consumer socialization research on chil­ dren. 51 John found that young children are attracted to perceptually salient features of marketing, regardless of whether it is relevant to the product. 52 This means that young children notice immediate and readily observable perceptual features in the marketplace, such as size or color of a product. 53 Children pay little attention to relevant product information and have "rela­ tively undeveloped notions about how prices reflect the valuation of goods and services."54 It is not until early adolescence that youth perceive the full range of connections between product, price, and value. 55 John's review of consumer research found that children under age eight "are seen as an at-risk population for being easily mislead by advertis­ ing" because those children do not understand the persuasive intent of mar- 50. Although the industries are quite different. a similar situation has evolved in to­ bacco retail. In a study of 3 to 6 year olds, researchers found that 90% of the six year olds correctly identified Old Joe Camel as associated with cigarettes (the same percent who rec­ ognized Mickey Mouse). Paul Fischer et al., Brand Logo Recognition by Children Aged 3 to 6 Years: Mickey Mouse and Old Joe the Camel, 266 JAMA 3145 (1991). This was at a time when tobacco advertising stated that they did not advertise to children and had ceased to advertise on television. Therefore. the children's knowledge about cigarette brands came from billboards and in-store promotions. In 1998, tobacco companies entered into the Master Settlement Agreement. agreeing to limit many marketing practices and youth access to to­ bacco. However, this resulted in an increase in tobacco retail marketing and promotions. Slater et al., supra note 23. For example, in 2003, 94% of all tobacco industry advertising and promotions were directed at the retail environment. Congress passed the Family Smok­ ing Prevention and Tobacco Control Act, directing the FDA to issue regulations to address some of these practices. 21 U.S.C. § 387a-1(aX2)(2009). 51. John, supra note l. 52. Id. at 198. In one study, children were asked to choose a candy for their friend who likes chocolate and raisins but not peanuts and were shown cards with visual candy ingredients. Over two-thirds of the kindergartners chose the candy with the most ingredients on the card, regardless of their relevance to the request. In contrast. almost two-thirds of third grade students used one of the information requests to make the choice. 53. ld.. at 187. 54. Id. at 196; see also Bridges & Briesch, supra note 11, at 169 Table 1 ("Children are typically unaware of price promotions."). 55. Jd.; see also Bridges & Briesch, supra note 11, at 169 Table l. 2012] GOVERNMENT INTERVENTION IN UNHEALTHY FOOD PROMOTIONS 127 keting. 56 Although most of the research is based on television marketing to children, there has been an increase in integrated marketing and it may be difficult to tease out the effect from the diverse and numerous influences. However, the comprehensive nature of marketing makes this less perti­ nent.57 There is a body of research on in-store promotions and packaging reviewed below that reveals efficacy of marketing in the venue and reveals why current self-regulatory pledges that exclude the retail environment are wholly ineffective. A. In-Store Promotions Within the retail environment, in-store displays, ads, and promotions are used to entice shoppers to products. 58 For adults and children alike, in­ store promotions work in two ways: either they directly promote the pur­ chase of a product or reinforce the marketing experienced through other venues prior to entering the store. First, product promotions directly promote purchase by influencing in­ store decisions and impulse purchases.59 The GMA reported that 73% of shoppers make at least one impulse purchase in the food and beverage cate­ gory per shopping trip (as compared to 41% and 39% in the household and healthy/beauty categories, respectively).60 Further, checkout aisles are lu­ crative venues for impulse purchases; hence, some suppliers pay fees to retailers for shelf space located near checkout registers. 61 In fact, the advent of self-checkout aisles had the unintended consequence for retailers of de- 56. John, supra note 1, at 190. 57. In its 2006 report, Food Marketing to Children and Youth: Threat or Opportunity, the Institute of Medicine analysis of the scientific literature led the committee to conclude that "most children ages 8 years and under do not effectively comprehend the persuasive intent of marketing messages, and most children ages 4 years and under cannot consistently discriminate between television advertising and programming." COMM. ON FOOD MKTG. AND THE DIETS OF CmLDREN AND YoUTH, supra note 27, at 9. Experts consider television marketing to these young groups to be deceptive because they cannot differentiate between commercial and non-commercial speech; this is a deceptive way to propose a commercial to them. Id. at 309. 58. GMASALEsCOMM.&Booz&Co.,supranote 12,at5. Retail promotions of tobacco and alcohol are correlated with increased youth uptake for those products. See Ellickson et al., supra note 23 (among other findings: for seventh-grade non-drinkers, exposure to in-store beer displays predicted drinking onset by grade nine); Slater et al., supra note 23 (finding that cigarette retail marketing practices increase the like­ lihood of smoking uptake in youth). 59. Ryan Hamilton & Dipankar Chakravarti, Symposia Summary: New Insights in Consumer Point-of-Purchase Decision Making, 35 Aov ANCES CONSUMER REs. 52 (2008). 60. GROCERY MFR'S. ASS'N SALES COMM., SHOPPER MARKETING 3.0: UNLEASIDNG THE NEXT WAVE OF VALUE 2009. 61. FED. TRADE COMM'N, SLOTTING ALLOWANCES IN THE RETAIL GROCERY INDUSTRY: SELECTED CASE STUDIES IN FIVE PRODUCT CATEGORIES 57 (2003), available at http://www.ftc.gov/os/2003/lllslottingallowancerpt03ll14.pdf. 128 INDIANA HEALTH LAW REVIEW [Vol. 9:1 creasing impulse purchases and reducing profits.62 The president of a retail­ consulting firm dubbed this new system ''the self-checkout diet" after re­ ports surfaced that self-checkout decreased impulse purchases, resulting in a large decrease in food and beverage calories purchased. 63 Second, retail promotions reinforce other marketing experiences through integrated marketing campaigns. The GMA explained that even when a shopper may know the type of food he or she is going to purchase, 60% of brands are selected in the store. 64 This means that in-store market­ ing is used to "reinforce those preferences and 'close the deal' in the store.'o65 Promotions are integrated across marketing strategies so in-store experience supports out of store advertising techniques. For example, at home a consumer may see a commercial for a product that includes a com­ pany spokescharacter and then upon entering the retail establishment, the consumer sees the spokescharacter on the product packaging to reinforce the previous. positive attributes of the product displayed on the commercial. The GMA report explained that the goal is to have all out of store market­ ing intersect with in-store promotions. 66 The GMA found that the most effective vehicles for product purchase were on and off-shelf displays and advertising, in-store events, and sam­ pling.67 In-store displays that have the greatest impact on sales and impulse purchases were found to be "special displays/' which include end-of-aisle displays, or within-aisle displays such as cardboard platforms, bins or bas­ kets holding the products.68 End-of-aisle displays seem to have a particular­ ly strong impact on sales,69 and industry characterizes them as "ground zero for 'in-store decision making,"' because they are unavoidable and thus, ''the best chance of getting into the passing baskets of harried shoppers.''70 62. Evan Schuman, Self-Chec/cout Killing Impulse Items, STOREFRONT BACKTALK (July 25, 2006), http://storeftontbacktalk.com/payment-systems/self-checkout-killing­ impulse-items/. 63. Id. (When going through self-check out, purchase of "chips and salty snacks dropped 53 percent," and soda and water, dropped 50 percent. "On average, we believe that self-checkout will save somebody two-and-a-half-pounds a year."). 64. GROCERY MFR.'s. Ass'N SALES COMM., supra note 61. 65. Id 66. Id ("[I]n order to unleash the full potential of shopper marketing, it must be inte­ grated with other demand-generation activities all along the path to purchase."). 67. GMA SALEs CoMM. & Booz & Co., supra note 12, at 22. 68. J.B. Wilkinson et al., Assessing the Impact of Short-Term Supermarket Strategy Variables, 19 J. MARKETING REs. 72 (1982) (Special displays have a greater impact on sales and impulse purchases than regular or expanded shelf space and are widely used as promo­ tional techniques.). Jeffrey Inman et al., The Interplay Among Category Characteristics, Customer Characteristics, & Customer Activities on In-Store Decision Making, 73 J. MARKETING 19, 19-29 (2009). GMA SALES COMM. & Booz & Co., supra note 12, at 22. 69. Ana Valenzuela & Pierre Chandon. Symposium Summary: Attentional and Infer­ ential Effects of Point-of-Purchase Marketing, 36 ADvANCES CoNSUMER REs. 100 (2009). 70. Brandon Copple, Shelf-Determination, FORBES.COM (Apr. 15, 2002), http:/ /www.forbes.com/forbes/2002/0415/130 _print.html. 2012] GoVERNMENT INTERVENTION IN UNHEALTHY FOOD PROMOTIONS 129 Most publicly available studies on the effect of in-store promotions focus on adults; however, GMA publications recognize children are also consumers. 71 There are various promotional techniques employed to attract children to products or to keep them occupied or engaged so parents can shop. These techniques include locating child-targeted food products at their eye level, placing toys and other promotional items near the most mar­ keted foods products, providing free food samples, erecting colorful dis­ plays or attractions with which children can interact, and having kids clubs.72 One study found that shelf placement had a bigger impact on sales than increased shelf space and this was particularly true in the breakfast cereal category, likely "due to the important role that children play in this category."73 For in-store methods to induce children to request products, researchers found that low level shelf placement had a larger impact on children than special displays.74 The former president of Harris Teeter gro­ cery chain explained that: "Eye level equals buy level;" thus, "slower­ moving items are on the top shelves, harder to find, and thus reserved for the 'destination shopper. ,.75 In-store methods to reach children, whether in special displays or on­ shelf displays, have the intended effect of influencing purchases and pur­ chase requests by youth. Studies reveal that children make purchase re­ quests in the retail environment by brand name of the foods most promoted to youth: breakfast cereal, snacks and, beverages. 76 71. GMA & DELOITTE, supra note 9, at 7 (Marketers and retailers ''recognized that a child (the consumer) and a mother (the shopper) transition from diapers to training pants in a similar way. As the child feels he/she is 'growing up,' the mother also experiences a sense of achievement that the diaper stage is over."). 72. GROCERY MFR'S. ASS'N SALES COMM., supra note 61 {In-store sampling programs are considered "an attractive way to build trial and drive impulse purchases." Even if geared towards adult in marketing material, promotional people or those behind bakery or deli coun­ ters offer samples to children.). See also Grocers Say Best Place to Influence Consumers is in Store, AsSOCIATED PREss, Aug. 30, 1993, at 7 (grocers hire professional food demonstra­ tors to offer samples, tout the product and gamer customer reaction.). See also Jeff Cioletti, Super Marketing: Child's Play, SUPERMARKET Bus., July 15, 2001, at 24. 73. Xavier Dreze et al., Shelf Management and Space Elasticity, 70 J. RETAILING 301, 318 (1994). 74. Bridges & Briesch, supra note 11, at 178. 75. HANK CARDELLO, STUFFED: AN INSIDER'S LooK AT WHO'S {REALLY) MAKING AMERICAFAT33 (2009). 76. Mary Story & Simone French, Food Advertising and Marketing Directed at Chil­ dren and Adolescents in the U.S., INT'L J. BEHAVIORAL NUTRITION AND·PHYSICAL ACTIVITY (Feb. 10, 2004), http://ijbnpa.org/eontent/l/113 (finding that children's first in-store requests are often for the brand name of the product: breakfast cereal (47%), followed by snacks and beverages (300/o) and correspond with the products most highly marketed to youth.); COMM. ON FOOD MKTG. AND THE DmTS OF CHILDREN AND YOUTH, supra note 27, at 103-04 (In one study observing requests by children aged 3-11 years to their mothers over a 30 day period. The study found that food accounted for 55% of the total requests made, including: snack and dessert foods (24%), candy (17%), cereal (7%), quick serve restaurant foods (4%), and fruit and vegetables (3%).). 130 INDIANA HEALTH LAW REVIEW [Vol. 9:1 Marketers use promotional activities to influence children to request their parent purchase their products.n This marketing method that encour­ ages children to make purchase requests is referred to as the ''nag factor," 78 "pester power ;m and "kidfluence"80 in the marketing literature. As one marketing researcher explained, the ''young audience does not necessarily understand the purpose of advertising and may trust messages that imply unhealthy foods are good for you.'.s1 The American Psychological Association's Task Force on Advertising and Children ("APA Task Force") found that marketing companies hire "people trained as child psychologists that specialize in market research on children" to apply "principles in developmental psychology" to the goal of more effectively persuading children to " influence their parents to purchase these products.'.s2 The APA Task Force found that, "[a]n important side effect of the influence of advertising on children's desire for products is the parent-child conflict that emerges when refusals occur in response to chil­ dren's purchase-influence attempts,'' and this "may place strain on parent­ child interaction. "83 The Task Force relied on several studies that revealed child disappointment, anger, and arguing were common responses to paren­ tal refusal for food products at the supermarket. 84 The marketing literature confirms this outcome. In an oft-cited study from the Journal of Marketing, researchers observed 516 parent-child (aged three to twelve) interactions in the cereal aisle.85 They found that 66% of the time, the child initiated the cereal selection ( 46% by demand and 20% by request) and the parent agreed more than half of the time.86 However, in cases where the parent denied the request, conflict emerged 54% of the time and child unhappiness 48% of the time. 87 Both conflict and unhappiness 77. Bridges & Briesch, supra note 11. 78. Directing the Pitch: Do Smart Marketers to Children Target Kids or their Par­ ents?, YoUTH MARKETS ALERT (Factivia, Inc.), July l, 1998, at 1 (discussing ''targeting kids with the nag factor"). 79. Grilly, Punctured Neighbour, (Oct. 21,2004, 1:14PM), http://grilly.blogspot.com /2004/10/text-from-bemard-matthews-trade-ad-we.html ("Over the years we have continual­ ly innovated, successfully harnessing pester power to become the true market leader."). 80. James McNeal, Tapping the Three Kids' Markets, AM. DEMOGRAPmcs, Apr. 1998, at 37-41 (Discussing the "dollar value of the 'kidfluence' market ... About 90% of product requests made by children to a parent are by brand name."); see also Anne Suther­ land & Beth Thompson, KlDFLUENCE: THE MARKETER's GUIDE TO UNDERSTANDING AND RESEARCHING GENERATION Y --KIDS, TwEENS, AND TEENS (2003). 81. Bridges & Briesch, supra note 11, at 159. 82. BRIAN WILCOX ET AL., REPoRT OF Tiffi APA TASK FORCE ON ADVERTISING AND CHIWREN 20 (2004). 83. See id. at 11. 84. Seeid. 85. Charles Atkin, Observation of parent-child interaction in supermarket decision­ making, 42 J. MARKETING 41 (1978). 86. Id 87. /d. 2012] GoVERNMENT INTERVENTION IN UNHEALTHY FOOD PROMOTIONS 131 occurred most in the 6 to 8 year age range.88 The commercial interest in promoting nagging likely interferes with the parent or guardian's role as the "nutritional gatekeeper." The nutritional gatekeeper is the person in the household who buys and prepares food. 89 Former Executive Director for the USDA's Center for Nutrition Policy and Promotion, Dr. Brian Wansink, found that this person's purchases control approximately 72% of all of the food decisions of their children and spouse, for the better or for the worse. 90 B. Paclmging and Paclmging Promotions Package-based advertising is especially important for children. The product's packaging brings all other advertising and promotional efforts together in one place91 and is considered one of the "most efficient market­ ing tools" for reaching child and adult consumers alike.92 The packaging has been deemed to have the most impact on sales among all shopper mar­ keting methods: Packaging plays an integral role and has a major im­ pact on shopper marketing. When a consumer is walking down an aisle and stumbles upon a shelf talker, floor ad or end-aisle display, it is the packag­ ing that will often result in that ftrst moment of truth- h h d .. 93 -t e pure ase ectston. Further, packaging is considered more important than traditional and new digital media by some marketers. First, packaging has "a longer shelf life" than advertising and "it will be seen by more people" because there is no other vehicle that consumers interact with on a daily basis.94 Second, because the "average consumer is bombarded with anywhere from 250 to 5,000 media messages each day,"95 it "has become most challenging to connect with your consumer through any one medium" (e.g., TV, maga- 88. !d. 89. Tara Parker-Pope, Who's Cooking? (For Health, It Matters), N.Y. TIMES. (Mar. 16, 2009), http://www.nytimes.com/2009/03/17/health/17well.htrnl?_r=2; see also FAQ About the Book, MINDLESSEATING.ORG, http://mindlesseating.org/faq.php (last visited Oct. 30, 2011). 90. F AQ About the Book, supra note 96. 91. Joseph DiFranza et al., Cigarette Package Design: Opportunities for Disease Prevention, 1 TOBACCO INDUCED DISEASES 97, 97-98 (2002). 92. Russ Napolitano, Packaging Can be Your Best Investment, in SHOPPER MARKETING: How TO INCREASE PURCHASE DECISIONS AT TilE POINT OF SALE 215, 216 (Markus Stahlberg et al., eds., 2010). 93. !d. at 221. 94. !d. at 216--17. 95. !d. at 216. 132 INDIANA HEALTH LAW REVIEW [Vol. 9:1 zines, newspapers, .billboards, internet, phones, blogs, games, etc.), so the packaging is the most important vehicle to make an impression and induce sales.96 Therefore, savvy manufactw'ers are encouraged to make "packag­ ing to entertain, engage and excite" consumers.97 Researchers have explained the importance of packages' communica­ tion to promote children's attraction to the products based on their limited cognitive abilities.98 One professor of marketing explained that the age span food marketers target for their packaged food is three to seven years old. 99 This makes sense for a number of reasons. Very young children cannot read or recall brand names, so attractive features such as cartoon characters are more important to their desire for a product than other aspects of the package.100 They are also less capable of storing and retrieving in­ formation so even if they enjoy a product commercial, it may not translate into purchase behavior or requests.101 Thus, packaging stimuli directed at this young age group can be the most influential to induce desire for the product.102 Studies reveal that promotions on and in food packaging are influen­ tial on children's purchase requests, preferences and tastes. Certain promo­ tional techniques are particularly effective and others have yet to be studied. A review of this research follows. I. Licensed Characters and Company Spolr£scharacters Visual recognition of a brand is important to capture young children's interest who have seen ads for the product but have a limited ability to read or recall brand names. 103 Children as young as ages two to three years can recognize familiar packaging in the stores and familiar spokescharacters on food products.104 Researchers have explained that visual recognition on 96. /d. 97. Id. at 217. See also DiFranza et al., supra note 98 (researchers within the tobacco context explained the impact and purpose of packaging as follows: "The package is the ultimate communication tool, the last step in the promotional process. The package should shape consumer expectations about the product in terms of quality and image. Packages are designed to be eye catching and·attractive, to have visual impact both when seen alone, as in use, and when amassed in great quantities. as in large retail displays. When the package is displayed in the store, it is the sum of the ~ the package, and the associated imagery that is purchased by the consumer."). . 98. Billur Olger, Packages with Cartoon Trade Characters Versus Advertising: An Empirical Examination of Preschoolers' Food Preferences, 15 J. FooD PRODUCTS MARKETING I 04 (2009). 99. Dick Mizerski,lssues Concerning the Effects of Advertising on Children, 24 lm'L J. ADVERTISING 399 (2005). - 100. Olger,supranote 106. I 01. ld; see also Bridges & Briesch. supra note II, at 163. 102. Olger, supra note 106. 103. ld 104. John, supra note 1, at 189; Story & French. supra note 81 (stating that children 2012] GoVERNMENT INTERVENTION IN UNHEALTHY FOOD PROMOTIONS 133 product packaging induces young children's desire for products even when they do not understand the functional benefit of the product.10s An anec­ dote from the book Food Fight captures this precisely: a mother recounts shopping in the supermarket with her child aged four who sees Betty Crocker's Disney Princess Fruit Snacks with Cinderella, Snow White, and the Little Mermaid on the box. The child says, "I want that." The mother asks "What is it?" and the child responds, "I don't know."106 Spokescharacters and licensed characters become important attractive features on product packaging.107 It is thus not surprising that the majority of food marketed to children has some sort of cartoon character on the front of the package.108 Very popular licensed characters adorn dozens of differ­ ent types of food products. For example, SpongeBob SquarePants is on products ranging from fast food to cereal to cookies.109 Three studies, in particular, of identical food offerings to children, one bearing a licensed character and one without, revealed that the licensed character induces children to prefer the taste of the food and select that item for a snack.110 In a 2005 study by Sesame Street Workshop, researchers first request products at about two years of age and 75% of these requests occur in the su­ permarket). 105. Ulger, supra note 106. 106. KELLY BROWNELL & KATHBR1NE BORGEN, FOOD FIGHT: THE INSIDE STORY OF THE FOOD INDUSTRY, AMERICA'S OBESITY CRISIS, AND WHAT WE CAN Do ABoUT IT 106--07 (2004); see also Susan Linn, Remarks in CONSUMING KIDs: THE CoMMERCIALIZATION OF CHILDHOOD 8 (Media Education Foundation 2008) (transcript on file with author) ("SpongeBob SquarePants was Kraft's best selling macaroni & cheese. I personally know a five year old who told her father, in no uncertain terms, that SpongeBob SquarePants Maca­ roni &Cheese tastes better than any other macaroni & cheese. Now, how do you argue with a 5 year old about that? What do you say? You say, 'no it doesn't,' and then she says, 'yeah it does.' ... 'Well, have you ever had SpongeBob SquarePants Macaroni & Cheese?' 'No, but I know that it tastes better.'"). 107. See Michael Rich, Remarks in CONSUMING KIDs: THE COMMERCIALIZATION OF CmLDHOOD 8-9 (Media Education Foundation 2008) (transcript on file with author) ("Grow­ ing up is a very strenuous, difficult, and sometimes bard and scary process for children. One of the things that gives them some stability and continuity in that is their attachment to touchstones in their lives. And among those touchstones are characters: Clifford the Big Red Dog, Mickey, Mouse. These are constants in their lives. These are things that 1hey have figured out, they feel they understand, and that they feel comfortable with, and indeed, in their owil way, love. When you take that, and you leverage that into saying, 'eat this food,' you are basically leveraging that very powerful emotion that the child has-that very power­ ful attachment-to make money."). 108. Elliott, supra note 37 (3/4 products: cartoon on box front)~ 109. Press Release, Parents Beware: SpongeBob Movie Rife with Commercialism, CAMPAIGN FOR CoMMERCIAL-FREE CHILDHOOD (Nov. 16, 2004), http://www.oommercialftee childbood.orglpressreleases/spongebob.htm. 110. See also Matthew Lapierre et at., Influence of Licensed Spokescharacters and Health Cues on Children's Ratings of Cereal Taste, 165 AR.CIUVES PEDIATRIC & ADoLESCENT MED. 229, 231-32 (2011) (comparing four- to six-year-olds' taste preference for cereal with or without a character, children liked the same cereal with the character but there was also a difference based on the use of a different name for the cereal); Thomas Rob­ inson et al., Effects of Fast Food Branding on Young Children's Taste Preferences, 161(8) ARCHIVES PEDIATRIC & ADoLESCENT MED. 792, 793-94 (2007) (demonstrating that when researchers gave sixty-three children aged three to five years identical food and beverages in 134 INDIANA HEALTH LAW REVIEW [Vol. 9:1 asked children. to choose between broccoli and chocolate; 22% chose the broccoli and 78% of chi1dren chose the chocolate. Ill However, when the researchers paired a sticker of a popular Sesame Street character Elmo with the broccoli and an unknown character with the chocolate, 50% of the chil­ dren chose each product. 112 Lastly, when researchers put the Elmo sticker on the chocolate and the unknown character sticker on the broccoli, 89% chose the chocolate, and 11% chose the broccoli.1 13 This study indicates that popular characters attract children significantly more than no character or an unknown character.114 A 2010 study corroborated the findings above. 115 Children aged four to six were presented with two identical samples of one of three different types of foods (gummy bears, graham crackers, and baby carrots), but one sample bore a sticker of one of three characters: Scooby Doo, Dora the Ex­ plorer, and Shrek.116 The children were asked to taste both samples and say which one tasted better. The majority of the children preferred the taste of the snacks across all 3 food categories that had the licensed-character on the package, with 72.5% choosing the carrots, 85% preferring the gummy bears, and 87.5% choosing the graham crackers with the licensed characters on them. 117 Third, an interesting study published in 2009 with Turkish children revealed that licensed characters on product packaging had a significantly greater effect on their food preference than seeing a commercial for an al­ most identical product.ll8 Researchers divided 144 preschool, six-year-old children into two statistically equivalent groups; both watched approximate­ ly 50 minutes of Bugs Bunny cartoons with the treatment group also view­ ing 8 commercials inserted between episodes for Chocolate Wafer .. B." (The commercials were humorous, dynamic and contained child actors. 119) branded McDonald's packaging or in plain packaging, the study subjects significantly pre­ ferred the taste of the food and beverages in the branded packaging, including carrots, which McDonald's did not offer at the time of the study). 111. Press Release, "if Elmo Eats Broccoli, Will Kids Eat it Too?" Atkins Foundation Grant to Fund Further Research, SESAME WORKSHOP (Sept. 20, 2005), http://archive. sesa­ meworkshop.org/aboutus/inside_press.php?contentld=l5092302; see also JENNIFER KOTLER, HEALTHY HABITS FOR LIFE: A GREAT START TO A LIFETIME OF GooD HEALTH (2007). 112. "If Elmo Eats Broccoli, Will Kids Eat it Too?", supra note 120; see also KOTLER, supra note 120. 113. KOTLER. supra note 120. 114. A similar result was seen when comparing the preferences for banana and grapes. See KoTLER. supra note 120; but see Lapierre, supra note 119, at 229-34. In this study of 80 four-to-six-year-olds' subjective taste of cereal from a box bearing a licensed character or no character, only six children did not recognize the character but this did not influence their taste assessment. Children who saw the character liked the cereal more than those without the character on it. 115. Christina A. Roberto et al., Influence of Licensed Characters on Children's Taste and Snack Preferences, 126 PEDIATRICS 88, 88 (201 0). 116. Jd. at 90. 117. ld. at 91. 118. Ulger, supra note 106. 119. Id at 110-111. 2012] GOVERNMENT INTERVENTION IN UNHEALTHY FOOD PROMOTIONS 135 After the viewing, both groups were asked to choose between Chocolate Wafer "B" that has a plain red package or Chocolate Wafer "A" that had a Disney cartoon character on the red package. The majority of both groups (control group/no commercials 68%; treatment group/with commercials 78%) chose the chocolate wafer with the cartoon character on it.120 The majority of the research is on licensed characters, but company spokescharacters similarly attract children to the product. Company spokescharacters have also been shown to produce favorable brand attitudes and increase brand awareness among children.121 Marketing researchers found that the most effective marketing campaigns involve spokescharac­ ters and that spokescharacters are more important than verbal communica­ tions in advertising campaigns to promote brand recall and favorable brand attitudes. 122 Industry research makes no distinction among characters that appeal to young children or differentiate among different types of characters to induce the "nag factor."123 Spokescharacters can either reflect their brand attributes or not. The classic example is Snuggle Bear is the spokescharacter for Snuggle Fabric Softener and his very being suggests softness. In the food context, Buzz, the Honey Nut Cheerio bee, references honey. Conversely, Tony the Tiger does not have any basic relevance to the sugar coated corn flakes cereal, Frosted Flakes. 124 The latter type of spokescharacters have developed rele­ vancy to the product over time and through advertisements.125 But even perceptually relevant spokescharacters need to develop meaning over time or though integrated marketing campaigns. For example, the Energizer Bunny was not immediately recognizable as a figure for the Energizer brand of batteries as opposed to a competitor's batteries.126 Because the company's research found that consumers did not recall which battery brand was associated with the bunny, Energizer introduced the bunny onto its product packaging and the association stuck. 127 2. Other Package Promotion Techniques The use of characters is the most studied feature ofproducts intended 120. Id. at 111-112. 121. Judith A. Garretson & Scot Burton. The Role ofSpokeschracters as Advertisement and Package Cues in Integrated Marketing Communications 69 J. OF MARKETING 118, 118 (2005). See also MARKETING FOOD TO CHilDREN AND ADoLESCENTS, supra note 13. 122. Garretson & Burton, supra note 130, at 127. 123. See Bridges & Briesch, supra note 11, at 158-59. 124. Garretson & Burton, supra note 130, at 118-19. 125. Tony the Tiger ftrst appeared on cereal boxes in 1958 and now he is a well known ftgure for the cereal. See Company History, KELLOGG's, http://investor.kelloggs.com lhistory.cfm (last visited Mar. 19, 2012). 126. Garretson & Burton, supra note 130. 127. Id. 136 INDIANA HEALTH LAW REVIEW [Vol. 9:1 for children; however, research has shown that other tactics also have an effect. Premiums have been shown to increase short-term sales of products when children desire the item over the associated food and can also elevate the image of that brand in children's minds.128 In a marketing observational study of parent-child interactions in the cereal aisle, researchers found that 9% of the children ( 6% of 3-5 year olds, 8% of 6-8 year olds and 11% of 9- 12 year olds) explicitly identified the premium as the primary reason for the cereal selection.129 If parents refused, these children expressed "marginally more unhappiness" than children who were not premium-oriented. 130 By preschool, children can recall brand names if they are "associated with salient visual cues such as colors, pictures, or cartoon characters."131 For young children, these visual cues are needed to induce brand memory and recognition. Older children are able to recognize that a brand name is a distinct aspect of the product packaging. 132 Marketing research explains that these older children's attitudes to a brand "is of the utmost importance" to measure the effectiveness of advertising because "marketers of very simi­ lar products are constantly approaching children with sales messages that are distinguishable only by their brand."133 In the school food context, food service directors note that introducing a brand name food item has measur­ able success for inducing purchase, but when children did not recognize the brand name, it functions like a generic brand and then they focused on the actual qualities ofthe product, i.e., how good it tasted.134 Little research on the use of other promotional techniques such as col­ ors or design is publicly available in the food context. It is clear that food companies use color to attract children, such as the case of Heinz EZ Squirt Ketchup, which came in colors such as green and purple. 135 Reportedly, the 128. Story & French, supra note 81, at 10. 129. Atkin, supra note 93, at 44. 130. Jd.at43. 131. John, supra note 1. 132. Gwen B. Achenreiner & Deborah R. John, The Meaning of Brand Names to Chil­ dren: A Developmental Investigation, 13 J. CoNSUMER PsYCHOLOGY 205, 207 (2003). 133. Claude Pecheux & Christian Derbaix, Children and Attitude Toward the Brand: A New Measurement Scale, J. ADVERTISING REs., July-Aug. 1999, at 19. 134. Michael Buzalka, This Brand is Your Brand, This Brand is 1\zy Brand: How On­ site Foodservice Operators Leverage the Retail Brand Equity of Major Food Manufacturers, 39 FooD MGMT. 24, 33 (2004). In the tobacco context, studies of Australian and New Zea­ land youths revealed that American branded tobacco packaging genemted positive imagery without additional promotional communications but generic packaging was considered unat­ tractive, not "cool," and undesimble to purchase or carry around. &e DiFranza et al., supra note 98, at 97 (citing Paul C. Beede & Robert W. Lawson, Brand Image Attraction: The Promotional Impact of Cigarette Packaging, 18 N. Z. Fam. Physician 175, 175 (1991)); Centre for Behavioral Research in Cancer, Anti-Cancer Council of Victoria, Health Warn­ ings and Content Labeling on Tobacco Products (1992) (Adolescents' reactions to cigarette packs modified to increase extent and impact of health warnings); Paul C. Beede & Robert W. Lawson, The Effect of Plain Packages on Perception of Cigarette Health Warnings, 106 Public Health 315,315 (1992). 135. Bridges & Briesch, supra note 11, at 163. 2012] GOVERNMENT INTERVENTION IN UNHEALTHY FOOD PROMOTIONS 137 "stores couldn't keep the bottles stocked, so the company followed up with coloured Ore-Ida fries, and Kraft Macaroni & Cheese also began to be of­ fered in colour."136 Further, new innovative packaging designs are emerg­ ing that have not been studied. For example, a new technology was created to make illuminated cereal products, which are powered from the shelf and printed with inductive inks to make the package illuminate.137 Another package designer created a package that can be used to play an interactive game using the box and a motion sensing technology, like Nintendo Wii. 138 C. Summary In sum, the food retail environment does not support healthy choices and induces children to request and think they prefer unhealthy food be­ cause of the use of characters and other promotions on packaging and throughout the store. Government regulation may be warranted to support public health and create healthy defaults in the retail environment. This is especially the case because the food retail environment is not being ad­ dressed by industry self-regulation and has been getting progressively worse from a public health perspective. N. REGULATING IN-STORE AND PACKAGE PROMOTIONS TO PROTECT CHILDREN At the time of this writing, there are no federal, state, or local laws di­ rectly addressing the aspects of the retail environment set forth above. There are also no cases directly on point to determine how a court might consider them if challenged by food and beverage (collectively "food") re­ tailers or manufacturers. Government entities considering adopting laws to address food packaging and retail promotions directed at children would want to avoid and succeed in any constitutional challenges brought by in­ dustry. To this end, analogies can be drawn from the case law related to other challenges for products or services deemed problematic. Conceptually there are two types of regulations that could be ad- 136. ld. 137. Sam Grobart, C.E.S. 2011: Diamonds in the Rough, N.Y. TIMES (Jan. 8, 2011), http://video.nytimes.com/video/20 11/0 l/08/business/l248069538616/ces20 11-diamonds-in­ the-rough.html (e.g., General Mills; see video at 2:19 minutes). 138. Press Release, Dassault Systemes, Reinventing Packaging with Interactive 3D and Transform a Box of Cereal into a New Generation Game Console, available at http://minimoys.3ds.com/presse/nestle3dvia (used by Nestle; "player's movements are de­ tected in real time when tilting his cereal box. All children using Wiimotes or any other motion sensor material understand very quickly the benefits of interaction between the body and th.e virtual world. The feeling of immersion is further enhanced by the screen image blending real and virtual. The player who seems himself like in a mirror, must collect balls of light to bring the character Betameche out of the Minimoys world (inside the package) onto the side of the box. This is a new step in the industry of promotions."). 138 INDIANA HEALTH LAW REVIEW [Vol. 9:1 vanced to protect children and further public health. The first involves re­ stricting the marketing of certain products to children. The second would be to restrict the location within stores of certain products to create a health­ ier retail environment. Both types would likely provoke challenge by the industry claiming that they implicate their First Amendment rights of com­ mercial expression.139 However, legally they would be analyzed differently because the first would be viewed as restricting commercial speech, where­ as the second would be viewed as a regulation of conduct. The First Amendment's protection for commercial speech is relevant when government attempts to restrict commercial communication intended to induce sales.140 Food product labels are generally considered commercial speech protected by the First Amendment. 141 In the context of product promotion, the case law primarily addresses restrictions on commercial speech for products only legally purchasable by adults (e.g., alcohol, tobac­ co ).142 Even in instances when the government is attempting to protect children from communication about such products, the courts analyze the restrictions based on the rights of companies to communicate with adults and the concurrent right of adults to receive such speech.143 The Supreme Court has yet to analyze a commercial speech restriction aimed at protect­ ing children from communication directed at them about harmful products they can legally purchase.144 The regulation of conduct invokes a different line of jurisprudence and requires a differentiation between pure and expressive conduct; again, there are no cases directly on point.145 Thus, analogies must be made in order to analyze how courts may respond to such regulations. In both contexts it may be appropriate for the government to empha- 139. See, e.g., Commonwealth Brands. Inc. v. United States, 678 F. Supp. 2d 512 (W.D. Ky. 2010) (challenging Congress' ban on the use of graphics and color on tobacco packaging under the First Amendment) affirmed in part and reversed in part by Discount Tobacco City & Lottery, Inc. v. United States. Nos. 10-5234 & 5235,2012 LEXIS 5614 (6th Cir. March 19, 2012); Philip Morris USA, Inc. v. City & County of S.F., 345 F. App'x 276 (9th Cir. 2009) (challenging government's ban on the sale of tobacco in phannacies under the First Amendment). 140. Bd. ofTrs. of the State Univ. ofN.Y. v. Fox, 492 U.S. 469, 482 (1989) ("speech that proposes a commercial transaction"). See also City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,423 (1993) (defining commercial speech "even more narrowly, by char­ acterizing the proposal of a commercial transaction as 'the test for identifying commercial speech.'" (quoting Bd. ofTrs. of the State Univ. ofN.Y., 492 U.S. at 473-474.)). 141. See Rubin v. Coors Brewing Co., 514 U.S. 476, 481 (1995). 142. See, e.g., id.; Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). 143. See, e.g., Lorillard Tobacco Co., 533 U.S. at 525. 144. But see Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729 (2011) (striking down California law prohibiting the sale or rental of violent video games to/by minors under strict scrutiny test). None of the justices consid­ ered this a commercial speech case. 145. But see Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (applying the United States v. 0 'Brien standard to ban on self-service displays of tobacco). 2012] GoVERNMENT INTERVENTION IN UNHEALTHY FOOD PROMOTIONS 139 size its elevated interest in protecting children to promote public health. Outside the speech context, the Court has held that different constitutional protections and rights apply to children than to adults. 146 Within the core speech context, the Court recently devalued the government's role in pro­ tecting children from harmful core speech. 147 However, in the commercial context, the Court has upheld restrictions to protect adults from overreach­ ing by commercial actors and supported federal agencies' function to enact guidelines to protect children. 148 A. Government's Role in the Protection of Children Outside of the First Amendment context, the Supreme Court has found that children have different rights than adults and that different standards apply to children. This is clear in the juvenile justice system, where the Court found that minors' lack of maturity and vulnerability supports differ­ ent sentencing allowances for minors than adults.149 In the context of priva­ cy rights, the Supreme Court recognized three justifications for concluding that ''the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the paren­ tal role in child rearing!'15° For example, children do not have rights on par with adults to express themselves in school, 151 to purchase obscene materi­ als, 152 to marry, or to vote.153 However, this appreciation has not translated 146. Seee.g.,Roperv. Simmons, 543 U.S. 551 (2005). 147. Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729 (2011). 148. See Part IV .A., infra. 149. In perhaps the most vital area where this has been found, the Court held that ado­ lescents and adults cannot be treated the same in the criminal justice system due to the inher­ ent differences in the minds of youths. Roper v. Simmons, 543 U.S. 551,578 (2005). In the context of juvenile offenders, the Supreme Court recognized three significant differences between minors under eighteen and adults supported by scientific and sociological studies, including: (1) a "lack of maturity and an underdeveloped sense of responsibility'' that "often result in impetuous and ill-considered actions and decisions;" (2) being 'ers. 380 The government has a valid argument that these public health and consumer protection rationales will be furth~red by the regulations within retail establishments. In this context, the Court has held that under 0 'Brien, 373. Jd. at 570 (internal citations omitted). 374. /d. at 569. 375. United States v. O'Brien, 391 U.S. 367, 377 (1968). 376. City of Erie v. Pap's A.M., 529 U.S. 277, 296 (2000); Gostin, supra note 337, at 282-83. 377. See, e.g., New York Laws: New York City Administrative Code: Tobacco Product RegulationAct. §§ 17-616-17-626. 378. O'Brien, 391 U.S. at 377. 379. Bd. ofTrs. of the State Univ. ofN.Y. v. Fox, 492 U.S. 469 (1989). 380. Bellotti v. Baird. 443 U.S. 622, 634 (1979); FCC v. Pacifica Foundation, 438 U.S. 726,749 (1978) (quoting Ginsberg v. New York. 390 U.S. 629) (the government's interest in "supporting 'parents' claim to authority in their own household'" justifies restricting other­ wise protected expression). 180 INDIANA HEALTH LAW REVIEW [Vol. 9:1 a government "must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems. "'381 Even if a court doubts that the regulation will "greatly'' reduce the problem to be solved, "0 'Brien requires only that the regulation further the interest" identified by the gov­ ernment. 382 Based on the research delineated above, the government can establish that the regulations would further these public health and consum­ er protection interests. Third, the court will ask if the governmental interest is unrelated to the suppression of free expression;383 this means that the regulation must not target expression according to its content and the government must also justify the regulation without reference to the content of the regulated speech. 384 Industry might argue that the regulation is not content-neutral because it incorporates the use of characters, which it considers to be pro­ tected speech. The government would argue that regulation does not target expression because it is not disagreeing with any message that the manufac­ turer is attempting to convey by using characters on its packaging or any message the retailer may have by locating the products in their originallo- . cations. Rather, the governtnent would simply be seeking to move these messages to another location within the same retail establishment for the reasons delineated in the second inquiry above, thereby moving any expres­ sive component to a different location-not to suppress the expression it­ self. The industry would likely challenge the content neutrality of the regulation by arguing that designating a product by reference to the use of a cartoon character would be content-based. It is worth analyzing to what extent this is a valid argument under the 0 'Brien test. (/) Content-neutrality In Lorillard the Court did not expand on the content-neutrality of the regulation upheld under O'Brien. Apart from Lorillard, the Court had not applied 0 'Brien to expressive commercial conduct but the closest case on point is Flipside v. Hoffman Estates where the Court upheld the city's ordi­ nance which moved the location of commercial products within the retail environment. The ordinance in that case "licenses and regulates the sale of items displayed 'with' or 'within proximity of' 'literature encouraging ille­ gal use of cannabis or illegal drugs, • . . . . [and] drug-related designs or names on cigarette papers may subject those items to regulation." Howev- 381. City of Erie v. Pap's A.M., 529 U.S. 277, 301 (2000) (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41, 52 (1986) (quoting Young v. American Mini Theatres, 427 U.S. 50, 71 (1976) (plurality opinion))). 382. Id. . 383. O'Brien, 391 U.S. at377. 384. Boos v. Barry, 485 U.S. 312, 320 (1988) (quoting Virginia Pharmacy Bd. v. Vir­ ginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976)). 20 12] GoVERNMENT INTERVENTION IN UNHEALTHY FOOD PROMOTIONS 181 er, the Court found that, ''the village does not restrict speech as such, but simply regulates the commercial marketing of items that the labels reveal may be used for an illicit purpose." 385 Thus the Court recognized that the method to determine which commercial·speech was subject to the ordinance was to look at the content of the label.386 The purpose of the regulation was not to limit the speech but move it to a different location. On this latter point, the Court concluded that, ''insofar as any commercial speech interest is implicated here, it is only the attenuated interest in displaying and mar­ keting merchandise in the manner that the retailer desires. We doubt that the village's restriction on the manner of marketing appreciably limits Flip­ side's communication ofinformation." 387 Based on this case, the government has a good argument that moving the location of items defined through nutrition profile and the use of charac­ ters should withstand First Amendment scrutiny. The Court's commercial speech jurisprudence has . evolved since Flips ide, so a comparison to two cases concerning core speech (which is strictly protected) can also flesh out the concept of content-neutrality. In Boos v. Barry, the Court found the restriction at issue to be content-based. In that case Washington, D.C. at­ tempted to prohibit individuals from displaying signs 500 feet from foreign embassies if the sign brought that foreign government into ''public disre­ pute!.J88 The Court found this regulation to be content-based because it prohibited political speech based on the content of the speech in a public forum. 389 The Court noted that the city attempted to justify the regulation based on the need to protect the "dignity of foreign diplomatic person­ nel. "390 Disregarding the forum and political aspect of the speech, the case 385. Viii. ofHoffinan Estates v. Flipside, 455 U.S. 489, 496 (1982). 386. See also Hill v. Colorado, 530 U.S. 703, 721-22 (2000) ("It is common in the law to examine the content of a communication to determine the speaker'& purpose. Whether a particular statement constitutes a threat, blaclnnail, an agreement to fix prices, a copyright violation, a public offering of securities, or an offer to sell goods often depends on the pre­ cise content of the statement. We have never held, or suggested, that it is improper to look at the content of an oral or written &tatement in order to determine whether a rule of law applies to a course of conduct. With respect to the conduct that is the focus of the Colorado statute, it is unlikely that there would often be any need to know exactly what words were spoken in order to determine whether 'sidewalk counselors' are engaging in 'oral protest, education, or counseling' rather than pure social or random conversation. Theoretically, of course, cases may arise in which it is necessary to review the content of the statements made by a person approaching within eight feet of an unwilling listener to determine whether the approach is covered by the statute. But that review need be no more extensive than a determination of whether a general prohibition of 'picketing' or 'demonstrating' applies to innocuous speech. The regulation of such expressive activities, by definition, does not cover social, random, or other everyday communications .... Nevertheless, we have never suggested that the kind of cursory examination that might be required to exclude casual conversation ftom the coverage of a regulation of picketing would be problematic."). 387. Viii. ofHoffinan Estates, 455 U.S. at496. 388. Boos v. Barry, 485 U.S. 312,315 (1988). 389. Id at 319. 390. /d. at 321. 182 INDIANA HEALTH LAW REVIEW [Vol. 9:1 nonetheless addressed a ban on content-based political expression. Even in the context of political expression the outcome could have been different if the ordinance just required the protesters with such signs to move to another location outside the embassies. The case of Hill v. Colorado stands for this propositioJI. 391 In Hill v. Colorado, the Court sought to determine the constitutionality of a statute prohibiting people from approaching one another within 100 feet of the entrance to any health care facility to engage in protest or educa­ tion. The principal inquiry in the Court's analysis of content-neutrality was to determine "'whether the government has adopted a regulation of speech because of disagreement with the message it conveys. "'392 The Court found that the statute was content-neutral because it did not regulate speech, but rather regulated ''the places where some speech may occur;" it was not adopted because the government disagreed "with the message it conveys" because it equally applied to all demonstrators regardless of the view­ point.393 The Court specifically stated: "We have never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct. "394 In the case of regulation of products within retail environments, the government would likewise not be regulating speech but rather regulating the place where some speech may occur. Second, the government does not disagree with a message that a cartoon character may indicate but simply requires a "cursory examination" of the package to identify which packages fall under the ordinance. 395 The regulation would cover all products with a 391. The majority in Colorado v. Hill noted that the persons going into the health care center would be unwilling listeners and compared them to a captive audience. Captive audi­ ence jurisprudence is based on a privacy interest, and in this case it was the access to health care. Hill, 530 U.S. at 718. Although a similar privacy interest would not likely attach to a supermarket experience, an analogy could be drawn because going into a food store is a necessity to obtain food and further, in order to purchase food. customers must exit through a check-out aisle which is lined with items known to induce impulse purchases. Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 210-11 (1975); see also Lehman v. City of Shaker Heights, 418 U.S. 298, 302 (1974). Even if a court does not perceive customers to be a cap­ tive audience, this is how retailers view them. Restrictions on traditional speech have been upheld when the listener has been considered captive and ooable to avoid offensive speech. In Lehman, the Court found that riders on the city's public transit system were a captive audience, and the city could reject political advertisements on its vehicles. The Court found that the '"streetcar audience is a captive audience. It is there as a matter of necessity, not of choice."' /d. at 302. Likewise, a food store is a place one goes out of necessity and the checkout aisle is a place one must enter and cannot avoid in order to purchase food necessi­ ties. In the school context the Court has recognized that children are a captive audience and has afforded increased protection from exposure to sexually explicit, indecent, or lewd speech. See Bethel Sch. Dist. v. Fraser, 478 U.S. 675,684 (1986). 392. Hill, 530 U.S. at 718 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). 393. Id at 719-20. 394. !d. at 722. 395. !d. 2012] GoVERNMENT INTERVENTION IN UNHEALTHY FOOD PROMOTIONS 183 character that do not meet the nutritional guidelines, not differentiating among potential "messages" that the character is cute, funny or "creepy."396 Because the character restriction is based. on nutritional guidelines and not on the type of character, the regulation would not be choosing among dif­ ferent types of characters or messages that different characters may be at­ tempting to send from an industry perspective. One purpose behind the ban on self-service displays in Lorillard To­ bacco Co. v. Reilly, was to move tobacco products to areas where children could not access them.397 Similarly, the supermarket restrictions would be moving harmful products to different locations so adults accompanied by children can avoid if they so wish. The Second Circuit suggested this exact measure to protect children in the retail environment from seeing .a "vulgar" character on beer labels: [T]o whatever extent [the state] is concerned that children will be harmfully exposed to the Bad Frog labels when wandering without parental supervision around grocery and convenience stores where beer is sold, that concern could be less intrusively dealt with by placing restrictions on the permissible locations where the appellant's products may be displayed with­ in such stores. 398 The Court's reasoning in Tennessee Secondary School v. Brentwood is also relevant.399 The Court recognized the need to protect "impressionable middle school" children from overreaching by a letter from a sports coach, as a "hard-sell tactic.'..wo In the case of a letter, the parent retrieves the mail and could control whether to give the middle school child the letter. In the supermarket, parents cannot similarly shield their children from all food packaging. In Brentwood, the letter came from a coach seeking to solicit participation in football-the Court found that this "could lead to exploita­ tion, distort competition between high school teams, and foster an environ­ ment in which athletics are prized more highly than academics. "401 In the supermarket, the characters are certainly a hard-sell tactic because they in­ duce purchase requests by children who do not even know what is in the packaging and also influence children to prefer the food with the character. 396. Derek Thompson, Burger King's Horrible, Creepy Ad Campaign isn't Working, The Atlantic, June 22, 2009, http://www.theatlantic.comlbusinesslarchive/2009/06/burger­ kings-horrible-creepy-ad-campaign-isnt-working/19870/. 397. Lorillard Tobacco Co., 533 U.S. at 567. . 398. Bad Frog Brewery v. N.Y. State Liquor Auth., 134 F.3d 87, 101 (2nd Cir. 1998). 399. Tenn. Secondary Scb. Athletic Ass'n v. Brentwood Acad., 551 U.S. 291 (2007). 400. ld. at 296. 401. Tenn. Secondary Sch. Athletic Ass'n v. Brentwood Acad., 551 U.S. 291, 300 (2007). 184 INDIANA HEALTH LAW REVIEW [Vol. 9:1 A similar argument can be made that this fosters an environment where packaging is "prized more" than the food contained therein, and especially healthy nutritious food. The government bas a valid argument that the regulation is content-neutral and the court should proceed to the fourth in­ quiry under O'Brien b. 0 'Brien inquiry continued Under the final inquiry under O'Brien, the government must show that any incidental restriction on alleged First Amendment freedoms is no great­ er than is essential to further that interest.402 Even if the manufacturers and retails bad some kind of expressive interest in the original location of the products, by placing the products in the new location within the same retail establishment, any incidental restriction on alleged First Amendment free­ doms would be no greater than is essential to further that interest.403 This paper explored several other options in order to address the problem of character marketing on unhealthy food and beverages. These regulations of conduct are the least restrictive available to state governments, while also addressing the problem sought to be rectified. In the food context, the government bas evidence that regulating the location of products does alter consumer behavior. 404 The government has a good argument that the retail establishment regulations are narrowly tai­ lored to eliminate the harms the government seeks to rectifY, without signif­ icantly restricting any quantity of speech that does not create the same harms. 405 Thus even assuming retailers and manufacturers have a cogniza­ ble speech interest in the original means or location of displaying· their ·products, the ordinances should pass this part of the test because the expres- sive components are simply being moved to a different location and are not being suppressed.406 Given that the retail food environment fosters pur­ chase of foods high in calories and low in nutrients and that some of the worst foods are placed where impulse purchases are most likely, a strong argument can be made that government bas a compelling interest in chang­ ing this environment, particularly as it affects children. 407 402. United States v. O'Brien, 391 U.S. 367, 377 (1968). · 403. /d 404. See, e.g., Gale Grp. Confection Detection: Creative Merchandising Works -Food -Candy Stores-Within-a-Store Concept Coffer Coloiful, Interactive Displays- Brief Article DSN Retailing Today (June 24, 2002), ht1p://findartic1es.comlp/articleslmi_m0FNP /is_12_ 41/ai_87776891/ (''The key to location is realizing candy is an impulse purchase. It reacts more to a display than it does to price. j. 405. Turner Broad. Sys. v. FCC, 520 U.S. 180,216 (1997). 406. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525,569 (2001). 407. Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2762 (2011) (Breyer J. dissent­ ing) (The "'regulatio[n] of communication addressed to [children] need not conform to the requirements of the [F]irst [A]mendment·in the same way as those applicable to adults."') (quoting Ginsberg v. New York. 390 U.S. 629, 638 n.6, (1968) (quoting Thomas Emerson, 2012] GOVERNMENT INTERVENTION IN UNHEALTHY FOOD PROMOTIONS 185 VII. CONCLUSION The food retail environment does not support healthy choices and in­ duces children to request and think they prefer unhealthy. food because of the use of characters and other promotions on packaging and throughout the store. The government may determine that it has an interest in addressing this environment based on its interests in advancing public health, protect­ ing children from manipulation and commercial exploitation, and support­ ing parents' role in child-rearing. Based on the best science evidence and within the constraints of the First Amendment, two viable methods to ad­ dress this environment emerge. The federal government is in the best position to enact a restriction on the use of characters on packaging for food and beverages that do not meet strong nutritional guidelines. The government can argue that the use of characters on unhealthy food is deceptive and misleading as directed at children and thus not protected under the First Amendment. If a court does not accept this argument, the government would have a strong argument that a well-defined restriction would survive scrutiny under the full Central Hudson test. Concurrently, or in the absence of federal regulation, state and local governments could regulate the location of such products within retail es­ tablishments that do not meet certain nutrition profiles or regulate the loca­ tion of the same unhealthy products that also bear characters on the packaging. The former should be considered and upheld as a pure regula­ tion of conduct and the latter should be upheld under the test developed in O'Brien. Government regulation may be warranted in light of the emerging ev­ idence that food retail and package promotions directed at children are pri­ marily for unhealthy food, and this environment is not being addressed by the industry despite self-regulation in other areas. To date government ac­ tion has largely focused on deceptive or misleading claims on food and beverage packaging directed at adult consumers. Industry has treated chil­ dren as active consumers for decades and research reveals that this is nega­ tively impacting children's beliefs and behaviors associated with unhealthy food products. Public health and government entities should address this environment by responding to the true role children play in the marketplace. In this way, the government can directly address deceptive and misleading practices targeting child-consumers and enact protective measures based on the most recent science. Toward a General Theory of the First Amendment, 72 YALE L. J. 877, 939 (1963))).