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From San Francisco to Arizona and then…

March 15, 2011

I must admit I didn’t see this coming, but in a strange twist, the restaurant industry has taken their next step in the battle for indoctrinating our youth on the party like qualities of junk food.  I was expecting a ongoing and protracted battle between the municipal governments and the fast food restaurants, but it looks like the restaurant business got out ahead of this one and figured out that this slow battle was a loser.

They were right too.  Each and every battle, each and every public airing of the questionable business practices of McDonalds, Burger King and others would only highlight just how wrong they are and how little the corporations in charge of these brands care for your health.   Despite the fact that they know full well that in this political climate they were shoe-ins to win the war, given the fact that every level of government above the municipal level is so corporation friends, so much so that it would appear that they were elected by companies instead of people, and that this corporate love is found at its most concentrated at the state level, they decided that they didn’t want to play on the battlefield known for being the highest form of democracy-the municipal level.

Still, I clearly don’t know enough about the power of the state.  I should know that it is near absolute, but from time to time I am shocked by what states do.  Arizona is a case in point.  No, I am not referring to the unfortunate attempt they made to end-around the constitution with their immigration law:  The federal government has stated that immigration law falls under federal jurisdiction and Judge Susan Bolton agreed, saying that the state law “interferes with longstanding federal authority over immigration and could lead to harassment of citizens and legal immigrants.”

No the case in point I am referring to is HB 2490:

On a split vote, the House Commerce Committee on Wednesday voted to block local governments from imposing any restrictions on the kind of give-aways now offered by many restaurants. That would range from toys and trading cards to crayons and place mats.

This is clearly a pre-emptive move by the people’s representatives…  Oh wait a minute, I am not sure it is the people’s representatives who are behind this:

Steve Chucri, president of the Arizona Restaurant Association, said no Arizona community has moved to ban these items – at least not yet. But Chucri said members of his industry are paying attention to what is happening elsewhere.

That said, the fast food restaurants do appear to be quite scared of losing their power to offer incentives with food:

Nicole Dreier, who lobbies for Burger King franchise operators, testified that incentives of this kind are “vital to our business.” She said Burger King uses all the types of marketing tools HB 2490 is designed to protect.

Of course Burger King does…  This makes perfect sense though, and the fast food industry should be scared.  Addictive or compulsive purchase items, quite often candy and fast food, are highly impacted by marketing, especially opportunistic marketing.   Just like the junk food gauntlet that Shopper’s Drug Mart offers, people are aware that they can make a lot of money advertising to our weaknesses and putting those items in front of us at every opportunity.  These aren’t harmless impulse purchases though, they are part of a very self destructive pattern for many of us.  This advertising isn’t limited to informing us of a new product that they have made, but is instead is reminding us that we need to eat, now.  That we should stop watching TV and get something to eat.  They make a lot of money doing this, and in turn we eat a lot of food we don’t need.

I know that is the purpose of these ads and I know they work.  You know how I know this, because there are more fast food ads on now than there ever has been before.  I know this because I can’t sit through one block of ads on TV after I finish my dinner and not see an ad for KFC, or Burger King, or McDonald’s or Carl’s Jr.  So, if it is worth 10’s of millions of dollars to these companies directly paid out to television and advertising companies, how much do you think it is earning them?  I don’t blame them for fighting for this money because they are corporations and their job is to make as much money as they can.  Limiting advertising will limit their profit.  Limiting their ability to get children hooked on high calorie food by giving them presents for eating these foods will quite likely reduce the amount of fast food kids eat in their lives.

Advertising aside though, because although in Arizona they are passing a law to protect it, nobody has gone after restaurant’s right to advertise, except possibly me. This actually may turn out to be an issue of what an incentive is.  Does a coupon count as an incentive?  A toy?  A menu with crayons?  I think this is a brilliant move to muddy the water.  After all, if they won’t give my kids a menu with crayons at White Spot because my kids aren’t eating enough fruits or vegetables,  I will LOSE IT!!!  As well, who is on the chopping block, because the restaurant association has brought out the fine dining restaurants out to support this bill:

And it’s not just restaurants that cater to children that would be affected. Michael Head, operating partner of Fleming’s Fine Steakhouse and Wine Bar in Scottsdale, called it a “necessity” for restaurants to be able to use incentives.

“Even in fine dining, we depend on increasing sales from coupons or specials aimed at promoting special food items,” Head said. He said the legislation protects “my rights to market to my guests and future guests to build sales and revenues.”

From a pretty cut and dried issue, advertising to children, the issue has grown to include steak and wine bars… quite the jump.  Children do have a difficult time judging when they are being marketed to and it is reasonable to protect them from predatory marketing at a young age.  From giving toys to kids, now we are talking about whether a restaurant is allowed to give children a placemat and let them use some crayons.  Brilliant.

There are a couple of problems here, especially for Arizona.  Number one, they are pretty upset that the federal government is telling them, a more local form of government what they should be able to pass law on:

Rep. Debbie McCune Davis, D-Phoenix, said she sees no reason for the Legislature to interfere with the decisions of locally elected officials.

“We complain about other governments telling us what we have to do,” she said. “Here we are telling other forms of government what they can or can’t do.”

Number two, advertising isn’t a state issue.  Although, as of late, the state level is the most likely to ignore the needs of the people over the needs of the corporations, the state is probably the only level that shouldn’t be passing law on this issue.  Historically, the FTC, the FCC and the Senate are the ones who impose laws on advertising.

With respect to tobacco marketing (facts brought to you by wikipedia and

In the United States, in the 1950s and 1960s, cigarette brands were frequently sponsors of television programs. One of the most famous television jingles of the era came from an advertisement for Winston cigarettes. The slogan “Winston tastes good like a cigarette should!” proved to be catchy. Another popular slogan from the 1960s was “Us Tareyton smokers would rather fight than switch!,” which was used to advertise Tareyton cigarettes.

In the 1950s, the federal government began to regulate the sale and production of chewing and smoking tobacco because of the growing concern over its adverse effects on the health of consumers….The FTC claimed that the failure to warn consumers of the dangers of smoking constituted an unfair and deceptive trade practice under the Federal Trade Commission Act (15 U.S.C.A. § 41 [1994])….  Shortly after the FTC issued its trade regulation rule, Congress intervened by enacting the Federal Cigarette Labelling and Advertising Act (FCLAA) (15 U.S.C.A. §§ 1331 et seq. [2000]), which was more moderate than the FTC regulation and preempted agency action.

In June 1967, the Federal Communications Commission ruled that programs broadcast on a television station that discussed smoking and health were insufficient to offset the effects of paid advertisements that were broadcast for five to ten minutes each day. “We hold that the fairness doctrine is applicable to such advertisements,” the Commission said. The FCC decision, upheld by the courts, essentially required television stations to air anti-smoking advertisements at no cost to the organizations providing such advertisements.

In April 1970, Congress passed the Public Health Cigarette Smoking Act banning the advertising of cigarettes on television and radio starting on January 2, 1971. [4] TheVirginia Slims brand was the last commercial shown, with “a 60-second revue from flapper to Female Lib”, shown at 11:59 p.m. on January 1 during a break on The Tonight Show.[39] Smokeless tobacco ads, on the other hand, remained on the air until a ban took effect on August 28, 1986.[40] Recently, even further restrictions took effect under the newly enacted Family Smoking Prevention and Tobacco Control Act. Effective June 22, 2010, the new regulations prohibit tobacco companies from sponsoring sports, music, and other cultural events. Also, tobacco companies can no longer display their logos or advertise their products on T-shirts, hats, or other apparel. Eventually, the law is planned to require almost all tobacco advertisements to consist of black text on a white background, but the constitutionality of that requirement has come under scrutiny.[41]

After 1971, most tobacco advertising was done in magazines, newspapers and on billboards. Since the introduction of the Federal Cigarette Labeling and Advertising Act all packaging and advertisements must display a health warning from the Surgeon General. In November 2003, tobacco companies and magazine publishers agreed to cease the placement of advertisements in school library editions of four magazines with a large group of young readers. (Time, People, Sports Illustrated and Newsweek)[42]

What you will notice in the abridged history above is the many branches of the federal government and their involvement in limiting cigarette advertising.  A preemptory move of the state government to protect advertising may shed even more light on an industry that appears unwilling to stop advertising to our addictions, and yet achieve nothing of substance.  Especially when this is the opposite move of the only organization that apparently flies under the radar when it comes to marketing a difficult product.

According to Wikipedia, alcohol advertising is currently unregulated:

In the United States, spirits advertising has self-regulatory bodies that create standards for the ethical advertising of alcohol. The special concern is where advertising is placed. Currently, the standard is that alcohol advertisements can only be placed in media where 70% of the audience is over the legal drinking age. Alcohol advertising’s creative messages should not be designed to appeal to people under the age of 21, for example, using cartoon characters as spokespeople is discouraged. Advertising cannot promote brands based on alcohol content or its effects. Advertising must not encourage irresponsible drinking. Another issue in media placement is whether media vendors will accept alcohol advertising. The decision to accept an individual ad or a category of advertising is always at the discretion of the owner or publisher of a media outlet. In the United States, there are several television networks that, although their viewers may be above the legal drinking age, do not accept “vice” advertising like alcohol advertising on principle. Currently the tobacco industry is forbidden to advertise on TV. Because of strong self-regulation, alcohol advertising has mostly avoided regulation by the federal government. The Federal Trade Commission has conducted investigations of possible targeting to those under the age of 21. However, its investigations and that of scholars have not found evidence of such targeting.[2] Concerns exist that irresponsible advertising practices or “pushing the envelope” with audience composition may lead to permanent legislation governing the advertising of beverage alcohol.[8]

So, self regulation can work, when the bodies involved have the foresight to balance their interests with the interests of the people they serve.  This certainly isn’t the fast food industry right now, and it is clear that with dramatic moves such as this last one, fast food isn’t going to accept any middle ground.  They appear to be following the cigarette industry’s play book without deviation and I fear to their own detriment.  Obesity and its many, many causes-and make no mistake, fast food is only one of many causes of obesity-is not going away any time soon.  The public in general will continue to seek out the causes of obesity and will try to find ways to solve the problems.  Most of us now struggle with being overweight and we are sick of being called fat, lazy and stupid while companies that make their profit off of our problems go so far as to get government to protect their access to market to us in a predatory manner.  If the irony isn’t apparent to you upon reading that last sentence, then you aren’t seeing the issue clearly, yet.  Give it time.

There is actually a third problem for the restaurant industry, the fact that their profit isn’t real profit.  By selling us more food, specifically, marketing to us to eat more calories than we need, they are making a profit, but we are getting fat.  There are significant costs to our obesity, well beyond the self esteem, and although I may not agree with the way they generate these costs, they have documented them and these costs have to be weighed against the profits.  This is not a case of industry being stopped from innovation and growth, but instead of an industry marketing overconsumption at the cost of public health.

On a side note, I hope that fast food companies don’t push too hard.  I love the Quarter Pounder with cheese and the Whopper.  I even once offered McDonald’s to be their spokesperson for balancing unhealthy eating with a sustainable lifestyle if they would just stop giving out toys with kids happy meals when kids ordered fries.  It was a few years ago and they didn’t respond.  I guess that was a no.  I would have made a great spokesperson too, I hate the movie Supersize Me!

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