    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

       FOOD MARKETING: CAN ``VOLUNTARY'' GOVERNMENT RESTRICTIONS IMPROVE

                               CHILDREN'S HEALTH?
    =======================================================================

                                 JOINT HEARING

                                   BEFORE THE

               SUBCOMMITTEE ON COMMERCE, MANUFACTURING, AND TRADE

                                    AND THE

                             SUBCOMMITTEE ON HEALTH

                                     OF THE

                        COMMITTEE ON ENERGY AND COMMERCE

                            HOUSE OF REPRESENTATIVES

                          ONE HUNDRED TWELFTH CONGRESS

                                 FIRST SESSION

                                   ----------

                                OCTOBER 12, 2011

                                   ----------

                               Serial No. 112-94

          Printed for the use of the Committee on Energy and Commerce

                            energycommerce.house.gov

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                        COMMITTEE ON ENERGY AND COMMERCE

                              FRED UPTON, Michigan
                                     Chairman

    JOE BARTON, Texas                    HENRY A. WAXMAN, California
      Chairman Emeritus                    Ranking Member
    CLIFF STEARNS, Florida               JOHN D. DINGELL, Michigan
    ED WHITFIELD, Kentucky                 Chairman Emeritus
    JOHN SHIMKUS, Illinois               EDWARD J. MARKEY, Massachusetts
    JOSEPH R. PITTS, Pennsylvania        EDOLPHUS TOWNS, New York
    MARY BONO MACK, California           FRANK PALLONE, Jr., New Jersey
    GREG WALDEN, Oregon                  BOBBY L. RUSH, Illinois
    LEE TERRY, Nebraska                  ANNA G. ESHOO, California
    MIKE ROGERS, Michigan                ELIOT L. ENGEL, New York
    SUE WILKINS MYRICK, North Carolina   GENE GREEN, Texas
      Vice Chairman                      DIANA DeGETTE, Colorado
    JOHN SULLIVAN, Oklahoma              LOIS CAPPS, California
    TIM MURPHY, Pennsylvania             MICHAEL F. DOYLE, Pennsylvania
    MICHAEL C. BURGESS, Texas            JANICE D. SCHAKOWSKY, Illinois
    MARSHA BLACKBURN, Tennessee          CHARLES A. GONZALEZ, Texas
    BRIAN P. BILBRAY, California         JAY INSLEE, Washington
    CHARLES F. BASS, New Hampshire       TAMMY BALDWIN, Wisconsin
    PHIL GINGREY, Georgia                MIKE ROSS, Arkansas
    STEVE SCALISE, Louisiana             ANTHONY D. WEINER, New York
    ROBERT E. LATTA, Ohio                JIM MATHESON, Utah
    CATHY McMORRIS RODGERS, Washington   G.K. BUTTERFIELD, North Carolina
    GREGG HARPER, Mississippi            JOHN BARROW, Georgia
    LEONARD LANCE, New Jersey            DORIS O. MATSUI, California
    BILL CASSIDY, Louisiana              DONNA M. CHRISTENSEN, Virgin
    BRETT GUTHRIE, Kentucky              Islands
    PETE OLSON, Texas                    KATHY CASTOR, Florida
    DAVID B. McKINLEY, West Virginia
    CORY GARDNER, Colorado
    MIKE POMPEO, Kansas
    ADAM KINZINGER, Illinois
    H. MORGAN GRIFFITH, Virginia

                                      (ii)
               Subcommittee on Commerce, Manufacturing, and Trade

                           MARY BONO MACK, California
                                     Chairman
    MARSHA BLACKBURN, Tennessee          G.K. BUTTERFIELD, North Carolina
      Vice Chairman                        Ranking Member
    CLIFF STEARNS, Florida               CHARLES A. GONZALEZ, Texas
    CHARLES F. BASS, New Hampshire       JIM MATHESON, Utah
    GREGG HARPER, Mississippi            JOHN D. DINGELL, Michigan
    LEONARD LANCE, New Jersey            EDOLPHUS TOWNS, New York
    BILL CASSIDY, Louisiana              BOBBY L. RUSH, Illinois
    BRETT GUTHRIE, Kentucky              JANICE D. SCHAKOWSKY, Illinois
    PETE OLSON, Texas                    MIKE ROSS, Arkansas
    DAVID B. McKINLEY, West Virginia     HENRY A. WAXMAN, California (ex
    MIKE POMPEO, Kansas                      officio)
    ADAM KINZINGER, Illinois
    JOE BARTON, Texas
    FRED UPTON, Michigan (ex officio)
                                     ------

                             Subcommittee on Health

                         JOSEPH R. PITTS, Pennsylvania
                                     Chairman
    MICHAEL C. BURGESS, Texas            FRANK PALLONE, Jr., New Jersey
      Vice Chairman                        Ranking Member
    ED WHITFIELD, Kentucky               JOHN D. DINGELL, Michigan
    JOHN SHIMKUS, Illinois               EDOLPHUS TOWNS, New York
    MIKE ROGERS, Michigan                ELIOT L. ENGEL, New York
    SUE WILKINS MYRICK, North Carolina   LOIS CAPPS, California
    TIM MURPHY, Pennsylvania             JANICE D. SCHAKOWSKY, Illinois
    MARSHA BLACKBURN, Tennessee          CHARLES A. GONZALEZ, Texas
    PHIL GINGREY, Georgia                TAMMY BALDWIN, Wisconsin
    ROBERT E. LATTA, Ohio                MIKE ROSS, Arkansas
    CATHY McMORRIS RODGERS, Washington   JIM MATHESON, Utah
    LEONARD LANCE, New Jersey            HENRY A. WAXMAN, California (ex
    BILL CASSIDY, Louisiana                  officio)
    BRETT GUTHRIE, Kentucky
    JOE BARTON, Texas
    FRED UPTON, Michigan (ex officio)

                                 C O N T E N T S

                                  ----------
                                                                       Page
    Hon. Joseph R. Pitts, a Representative in Congress from the
      Commonwealth of Pennsylvania, opening statement................     1
        Prepared statement...........................................     3
    Hon. Fred Upton, a Representative in Congress from the State of
      Michigan, opening statement....................................     4
        Prepared statement...........................................     6
    Hon. Frank Pallone, Jr., a Representative in Congress from the
      State of New Jersey, opening statement.........................     8
    Hon. Janice D. Schakowsky, a Representative in Congress from the
      State of Illinois, opening statement...........................     9
    Hon. Mary Bono Mack, a Representative in Congress from the State
      of California, opening statement...............................     9
        Prepared statement...........................................    11
    Hon. Marsha Blackburn, a Representative in Congress from the
      State of Tennessee, opening statement..........................    13
    Hon. G.K. Butterfield, a Representative in Congress from the
      State of North Carolina, opening statement.....................    13
    Hon. Joe Barton, a Representative in Congress from the State of
      Texas, opening statement.......................................    15
        Prepared statement...........................................    17
    Hon. Pete Olson, a Representative in Congress from the State of
      Texas, opening statement.......................................    19
    Hon. Adam Kinzinger, a Representative in Congress from the State
      of Illinois, opening statement.................................    19
    Hon. Henry A. Waxman, a Representative in Congress from the State
      of California, opening statement...............................    20
    Hon. Lee Terry, a Representative in Congress from the State of
      Nebraska, prepared statement...................................   122

                                   Witnesses

    William H. Dietz, Director, Division of Nutrition, Physical
      Activity, and Obesity, Centers for Disease Control and
      Prevention, Department of Health and Human Services............    21
        Prepared statement...........................................    24
        Answers to submitted questions \1\...........................
    Robert Post, Deputy Director, Center for Nutrition Policy and
      Promotion, Department of Agriculture...........................    33
        Prepared statement...........................................    35
        Answers to submitted questions \1\...........................
    David C. Vladeck, Director, Bureau of Consumer Protection,
      Federal Trade Commission.......................................    43
        Prepared statement...........................................    45
        Attachments to submitted questions...........................   357
        Answers to submitted questions...............................   367
    Jim Baughman, Senior Marketing Counsel, Campbell Soup Company....   138
        Prepared statement...........................................   141
    Daniel L. Jaffe, Executive Vice President, Government Relations,
      Association of National Advertisers............................   171
        Prepared statement...........................................   173
    Elaine D. Kolish, Vice President and Director, Children's Food
      and Beverage Advertising Initiative, Council of Better Business
      Bureaus........................................................   209
        Prepared statement...........................................   211
    Beth Johnson, Principal, Food Directions LLC, on behalf of the
      Grocery Manufacturers Association..............................   237
        Prepared statement...........................................   239
    Margo G. Wootan, Director, Nutrition Policy, Center for Science
      in the Public Interest.........................................   289
        Prepared statement...........................................   291
    Dale Kunkel, Professor of Communication, Department of
      Communication, University of Arizona...........................   317
        Prepared statement...........................................   320
    John S. Irons, Research and Policy Director, Economic Policy
      Institute......................................................   331
        Prepared statement...........................................   333

                               Submitted Material

    Statement, dated October 12, 2011, of Brad Figel, Vice President,
      North America Public Affairs, Mars Incorporated, submitted by
      Mrs. Capps.....................................................    74
    Letter, dated October 11, 2011, from the Hon. Eric Paulsen, et
      al., to Kathleen Sebelius, Secretary, Health and Human
      Services, et al., submitted by Mr. Pitts.......................    78
    Statement, dated October 12, 2011, of the American Bakers
      Association, submitted by Mr. Pitts............................    83
    Testimony, dated October 12, 2011, of Kraig R. Naasz, President
      and Chief Executive Officer, American Frozen Food Institute,
      submitted by Mr. Pitts.........................................    98
    Letter, dated July 14, 2011, from John T. Allan III, Director of
      Regulatory and International Affairs, American Frozen Food
      Institute, to Office of the Secretary, Federal Trade
      Commission, submitted by Mr. Pitts.............................   100
    Memo, dated July 15, 2010, from Michelle Rusk and Carol Jennings,
      attorneys, Division of Advertising Practices, Federal Trade
      Commission, to David Vladeck, Director, Bureau of Consumer
      Protection, submitted by Mr. Olson.............................   117
    Open letter, dated September 6, 2011, from Gary D. Allison, Vice
      Dean and Professor Law, University of Tulsa College of Law, et
      al., to Jon Leibowitz, Chairman, Federal Trade Commission, et
      al., submitted by Mr. Pallone..................................   132

    ----------
    \1\ Mr. Dietz and Mr. Post did not answer submitted questions for
      the record.

       FOOD MARKETING: CAN ``VOLUNTARY'' GOVERNMENT RESTRICTIONS IMPROVE
                               CHILDREN'S HEALTH?

                                  ----------

                          WEDNESDAY, OCTOBER 12, 2011

                      House of Representatives,
    Subcommittee on Commerce, Manufacturing, and Trade,
                                     Joint with
                                Subcommittee on Health,
                              Committee on Energy and Commerce,
                                                        Washington, DC.
        The subcommittees met, pursuant to call, at 10:30 a.m., in
    room 2123, Rayburn House Office Building, Hon. Joseph R. Pitts
    (chairman of the Subcommittee on Health) presiding.
        Members present: Representatives Pitts, Bono Mack, Barton,
    Shimkus, Terry, Murphy, Burgess, Blackburn, Bass, Gingrey,
    Latta, Harper, Lance, Cassidy, Guthrie, Olson, McKinley,
    Pompeo, Kinzinger, Upton (ex officio), Dingell, Towns, Pallone,
    Engel, Capps, Schakowsky, Gonzalez, Butterfield, and Waxman (ex
    officio).
        Staff present: Clay Alspach, Counsel, Health; Charlotte
    Baker, Press Secretary; Jim Barnette, General Counsel; Debbee
    Keller, Press Secretary; Ryan Long, Chief Counsel, Health;
    Brian McCullough, Senior Professional Staff Member, CMT; Carly
    McWilliams, Legislative Clerk; Jeff Mortier, Professional Staff
    Member; Gib Mullan, Chief Counsel, CMT; Monica Popp,
    Professional Staff Member, Health; Chris Sarley, Policy
    Coordinator, Environment and Economy; Heidi Stirrup, Health
    Policy Coordinator; Stephen Cha, Minority Senior Professional
    Staff Member; Alli Corr, Minority Policy Analyst; Eric Flamm,
    Minority FDA Detailee; Karen Lightfoot, Minority Communications
    Director and Senior Policy Advisor; Felipe Mendoza, Minority
    Counsel; and Will Wallace, Minority Policy Analyst.

    OPENING STATEMENT OF HON. JOSEPH R. PITTS, A REPRESENTATIVE IN
             CONGRESS FROM THE COMMONWEALTH OF PENNSYLVANIA

        Mr. Pitts. The subcommittees will come to order.
        I am pleased today to be holding a joint hearing with the
    Health Subcommittee and the Commerce, Manufacturing and Trade
    Subcommittee on such an important issue. The Chair recognizes
    himself for 5 minutes for an opening statement.
        The fiscal year 2009 Omnibus Appropriations Act directed
    the USDA, the FTC, CDC, and FTC to complete a study on food
    marketing to children and report back to Congress. Instead,
    what these 4 agencies, collectively known as the Interagency
    Working Group on Food Marketed to Children, or IWG, delivered
    was a sweeping set of voluntary principles for marketing foods
    to kids. These principles are based on nutritional standards
    that exceed and conflict with those of other government
    programs, some administered by these same agencies, such as the
    WIC program, the school lunch program, and the SNAP, the food
    stamp program.
        The guidelines are so restrictive that many healthy foods
    like low-fat yogurts, whole-wheat bread, and 2 percent milk
    could not be marketed to those 17 and under. Cereals, even non-
    sweetened cereals would not meet the IWG guidelines, including
    Cheerios. According to one analysis, 88 out of the 100 most
    advertised foods and drinks would be in violation of these
    standards.
        Please don't misunderstand. I am very concerned about the
    obesity epidemic in our Nation. I have 4 young grandchildren. I
    want them to make good dietary and lifestyle choices and grow
    up healthy. And the parents, not government bureaucrats, are in
    the best position to see that that happens. Frankly, banning
    peanut butter commercials during hours when they may be
    watching TV is not going to accomplish that goal.
        The IWG should completely withdraw these recommendations
    and do what they were instructed to do by Congress in the
    fiscal year 2009 omnibus, conduct a study and report the
    findings of the study and their recommendations to Congress.
    That report was due July 15, 2010.
        I yield the remainder of my time to the chairman of the
    full committee, Mr. Upton.
        [The prepared statement of Mr. Pitts follows:]
        [GRAPHIC] [TIFF OMITTED] 77930.001

       OPENING STATEMENT OF HON. FRED UPTON, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF MICHIGAN

        Mr. Upton. Thank you, Mr. Chairman. I appreciate you going
    out of order as I have another supercommittee meeting this
    morning. So I need to be there. But I thank you and Chairman
    Bono Mack for calling this hearing today.
        You know, 2 \1/2\ years ago, Congress established an
    Interagency Working Group, IWG, composed of the FDA, the Center
    for Disease Control and Prevention, USDA, and FTC. The IWG was
    created to conduct a study and develop recommendations for
    standards in the marketing of food to children and teenagers.
    The study results and recommendations were supposed to take the
    form of a report to Congress, which we as the representative
    branch of government can consider as we decide whether and how
    to proceed.
        But instead of conducting the study or providing
    recommendations, the IWG unilaterally proposed guidelines that
    were so extreme that they would prevent the marketing to
    children of foods that most parents consider a win if their
    kids eat, such as yogurt, cheese sticks, even soup.
        Moreover, the IWG's definition of marketing was so broad
    that it endangered the philanthropic funding that many
    community sports programs and schools rely on to fund athletic
    activities, the one thing proven to combat childhood obesity.
        And while the initiative was portrayed as a helping hand to
    parents to reduce children's exposure to advertising for foods
    with limited nutritional value, to many of us and our
    constituents that appeared to be the first step towards Uncle
    Sam planning our family meals. The IWG's preliminary proposal
    states flatly that foods would have to be reformulated and in
    some cases may disappear altogether.
        While the testimony suggests that the agencies are dealing
    with some of the most extreme aspects of the proposal,
    significant concerns still remain. These guidelines are labeled
    as voluntary, which to me means they are largely aspirational.
    But what happens when a litigious group sues a food
    manufacturer because it showed a commercial advertising a new
    kind of chocolate treat? Regardless of whether a child sees a
    commercial for that treat, the ultimate purchasing decision
    rests with the parent who purchases the groceries, and those
    groceries carry nutritional labels that every parent can read.
        I am also very concerned regarding the impact of the
    guidelines on jobs. According to a study by IHS Consulting, the
    guidelines would lead to a loss of as many as 74,000 in just 1
    year and perhaps 378,000 jobs over 4 years.
        The Senate report language called for a study and a report
    to Congress. We have neither a study nor a report. Rather, we
    have a quasi-regulatory maneuver that has drawn fire from a
    broad range of organizations and Members of Congress.
        I am concerned about both the IWG's recommendations and the
    manner in which they were produced going beyond the scope of
    that charge. I believe that this approach opens the door to
    needless and expensive litigation, and ultimately I believe
    there are much better approaches to improve the health of our
    children.
        I yield back.
        [The prepared statement of Mr. Upton follows:]
        [GRAPHIC] [TIFF OMITTED] 77930.002

        [GRAPHIC] [TIFF OMITTED] 77930.003

        Mr. Pitts. The Chair thanks the gentleman and recognizes
    the ranking member of the Subcommittee on Health, Mr. Pallone,
    for 5 minutes.

    OPENING STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE
                IN CONGRESS FROM THE STATE OF NEW JERSEY

        Mr. Pallone. Thank you, Chairman Pitts.
        Childhood obesity is a tragic public health epidemic in
    this country, and the statistics are alarming. One out of every
    3 children is affected by obesity, and over the last 3 decades
    rates have skyrocketed. According to data from the Center for
    Disease Control and Prevention, rates of obesity have doubled
    in children and tripled in teens. In addition, there are
    millions more kids who are just at the cusp and are in endanger
    of becoming obese.
        As a result of this epidemic, health problems that were
    rarely seen in children 30 years ago are now quite common. A
    report conducted by the Trust for America's Health in 2009
    highlighted that more and more children are being diagnosed
    with Type 2 diabetes, hypertension, sleep apnea, joint
    problems, and depression, to name just a few. Shockingly, 1 in
    3 children born in the year 2000 is expected to develop
    diabetes during his or her lifetime; and 25 percent of children
    between the ages of 5 and 10 years old have early warning signs
    for heart disease such as high blood pressure and high
    cholesterol levels.
        What is so important to understand is that these children
    are likely to continue having health problems as they age into
    adulthood. Studies have shown that up to 80 percent of obese
    children will become obese adults. Some experts have even
    predicted that if the trends in childhood obesity continue, we
    will for the first time in American history see a generation
    that lives sicker and dies earlier than their parents.
        Many factors contribute to the public health problem.
    Personal habits definitely play a part, but so does less
    exercise and lack of access to healthy foods. Regardless of the
    reasons, the bottom line is that children's diets are too high
    in calories, saturated in trans fat, refined sugars, and salt,
    and too low in fruits, vegetables, whole grains and calcium. As
    a result, they have an increased risk of many serious and
    costly diseases.
        We also know that marketing is a factor in the types of
    foods children eat. A 2008 FTC report found that the food
    industry spent more than $1.6 billion in 2006 alone to market
    messages to kids promoting foods that often are high in
    calories and low in nutrition.
        In 2006, the Institute of Medicine released a study on food
    marketing to children that examined the role that marketing may
    play as a determinate of the nutritional status of children and
    the ways in which marketing approaches might be adopted to help
    address the epidemic of childhood obesity. In fact, as a result
    of this study, the industry launched their own initiative
    designed to shift the mix of foods advertised to children to
    encourage healthier dietary choices and healthy lifestyles.
        I believe that our government has an obligation to work
    with industry leaders, parents, schools, and advocates to
    address and hopefully reverse the trends of childhood obesity.
    The recommendations by the IWG being examined today are one
    step in that direction. I, for one, certainly share the goal of
    improving children's diets and addressing the high rates of
    childhood obesity.
        Is the IWG proposal perfect? No, not at all. In fact, I
    think, as written, many of these recommendations are
    unworkable. But today we will hear from many witnesses,
    including the consumer advocates who will attest to that. But
    that is why the proposal poses 30 specific questions designed
    to elicit input on a variety of issues. So I fully expect the
    IWG to carefully consider the many comments that were received.
        I do not agree with some of our witnesses who believe that
    the IWG proposal should be withdrawn completely and instead
    endorse an industry-only approach. Today's hearing will allow
    our witnesses to publicly provide important input into the
    development of a complete set of recommendations to Congress.
    If we want to facilitate and induce real change, it is critical
    that any voluntary guidelines encourage and incentivize
    American companies to participate.
        I look forward to working with my colleagues, and I would
    like to now yield the remainder of my time to Representative
    Schakowsky.

           OPENING STATEMENT OF HON. JANICE D. SCHAKOWSKY, A
         REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS

        Ms. Schakowsky. I thank the gentleman for yielding to me.
        You know, we are going to spend our time today attacking
    the Interagency Working Group, whose mission was simply to--I
    am looking for exactly the words. The working group's job was
    to submit a report to Congress. And that is it. And that is
    what Congress told the group to do.
        This is not a regulatory document. It doesn't enforce, but
    it does inform the conversation we have about a very serious
    problem, and that is childhood obesity.
        I did want to refer Mr. Vladeck to a myths and facts
    article that you wrote some time ago and refer to what the
    chairman was saying, it is the parents that are supposed to do
    this. And the myth is that this proposal represents the
    government's attempt to do a parent's job. Absolutely not.
    Parents, not the government, make decisions. But the proposal
    is designed to support, not supplant, moms and dads. After all,
    the more marketing that kids see that is for foods that make up
    a healthy diet, kids will start asking for healthier foods. And
    so I think that we need an open mind to listen to these
    reasonable proposals.
        Thank you.

     OPENING STATEMENT OF HON. MARY BONO MACK, A REPRESENTATIVE IN
                 CONGRESS FROM THE STATE OF CALIFORNIA

        Mrs. Bono Mack [presiding]. I thank the gentlelady, and the
    Chair now recognizes herself for 5 minutes for my opening
    statement.
        Today, the evidence is all around us. There is an
    indisputable link between childhood obesity and diabetes. It is
    an issue that I have been working on for many years. More and
    more overweight kids are leading to more and more cases of
    full-blown diabetes among children all across America. That
    alarming trend demands our attention.
        But what is far less clear to me is whether the Interagency
    Working Group's proposed nutrition principles are even
    achievable for most food groups and what effect they could have
    on food prices. Hopefully, we can get some straight answer to
    these and some other very important questions before committing
    to a national policy that may shrink family budgets but no
    waistlines.
        Clearly, the IWG's initial proposal went way too far. It
    had a dangerously high content of plausibility. To its credit,
    the FTC did substitute a little commonsense for an otherwise
    rigid menu that could leave American businesses as well as
    consumers with a bad case of heartburn. People are smart enough
    to recognize that Girl Scout cookies or cake bought at a bake
    sale are not health foods, and they should act accordingly.
    But, that said, I still remain very concerned that healthy
    foods like yogurt could wind up not meeting these new
    standards. So much for counting calories.
        I am also concerned by a lack of science-based evidence in
    some of the IWG's recommendations. For example, despite study
    after study, the link between saturated fat and obesity remains
    inconclusive. Is there a plausible connection? Yes. But is
    there a definitive one? No. Over the years, Americans have
    decreased their saturated animal fat intake, and yet
    cardiovascular disease rates remain mostly unchanged.
        I am also worried about what may happen every time there is
    a new cook in the kitchen. While these standards are voluntary,
    they can be changed on a whim, creating uncertainty for both
    businesses and consumers. Let us rethink that approach before
    the standards become finalized.
        As a former small business owner, I am troubled as well by
    the impact that the IWG's nutrition principles could have on
    smaller U.S. companies, which often struggle to comply with
    these type of standards. I am anxious to learn what steps are
    being taken to ensure that thousands of Americans don't lose
    their jobs at a time when unemployment nationwide stands at a
    stubborn 9.1 percent.
        And, finally, why hasn't this committee received the IWG
    report which was supposed to have been delivered to Congress by
    July 15, 2010? Frankly, we would like to find out what you have
    been cooking up in the kitchen. Right now, I am not sure I like
    the smell of it.
        And at that point, I will yield the balance of my time to
    the vice chair of the Commerce, Manufacturing, and Trade
    Subcommittee, Mrs. Blackburn.
        [The prepared statement of Mrs. Bono Mack follows:]
        [GRAPHIC] [TIFF OMITTED] 77930.004

        [GRAPHIC] [TIFF OMITTED] 77930.005

    OPENING STATEMENT OF HON. MARSHA BLACKBURN, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF TENNESSEE

        Mrs. Blackburn. Thank you, Madam Chairman.
        Welcome to our witnesses.
        As a mother and a grandmother, I have always been concerned
    with diet, nutrition, obesity. This goes back to my interest in
    foods and nutrition when I was a young 4-H Club member in South
    Mississippi. I love that issue, and for decades I have watched
    as government has tried to dictate portion sizes and
    regulation. But I have come to realize nothing replaces
    understanding of the food pyramid and the basic food groups and
    how those impact your body and your life.
        I think that the nanny state, that government should be
    held responsible for how its IWG marketing rules will suppress
    free speech, choice, harm our economy, and fail at reducing,
    fail at reducing childhood obesity. The government should stop
    pretending after all of these decades that it has the answers,
    because it does not. Big government is no replacement for
    parental involvement in our children's everyday lives and their
    understanding of the food that they consume, what they eat and
    the individuals that they become.
        Furthermore, private industries are already sensitive to
    consumer demands and they are bowing to parental concerns. I
    see this in the choices for my grandchildren. These broad
    marketing restrictions are supposedly voluntary, but it is
    clear they will inevitably form the basis for NGO attacks,
    shareholder actions, and private litigation.
        This hearing is an opportunity to explore these concerns
    further. I thank you all for your interest in being here today.
    I want to let both panels know that we look forward to having
    them here, that we look forward to furthering this discussion,
    and to visiting with you about what is a thoughtful way to move
    forward with helping to educate parents and children as to what
    they are consuming.
        Now, I am one of those that I cook for my children and
    grandchildren every single weekend. One of the favorite
    incentives I have for my 2 grandchildren is an old Mr. M&M. And
    when you flip his hand, he dispenses a little M&M. After they
    eat the appropriate amounts of meat and veggies and a little
    bread and drink their milk, Mr. M&M gives them that candy token
    that they are looking for as their reward for doing things
    right.
        It is my choice as a grandmother. We don't need the FTC. We
    don't need the IWG. We do not need the Federal Government
    weighing in. Yep.
        Mrs. Bono Mack. The Chair now recognizes Mr. Butterfield
    for 5 minutes.

    OPENING STATEMENT OF HON. G.K. BUTTERFIELD, A REPRESENTATIVE IN
               CONGRESS FROM THE STATE OF NORTH CAROLINA

        Mr. Butterfield. Thank you.
        To the 2 subcommittee chairs and Chairman Pitts and
    Chairman Bono Mack, thank you for holding today's hearing on
    the Interagency Working Group's preliminary proposed nutrition
    principles on food marketed to children.
        Children's health and well-being are paramount. I think we
    can all agree on that. We must do all we can to ensure the next
    generation of leaders are as healthy as possible. To that end,
    Congress directed the Federal Trade Commission, the Food and
    Drug Administration, the Center for Disease Control, and USDA
    to conduct a study and develop recommendations for standards
    for the marketing of food when such marketing targets children
    who are 17 years old or younger.
        It seems that the working group took that charge and tried
    to complete as thorough a document as possible, resulting in
    the preliminary proposed nutrition principles to guide industry
    self-regulatory efforts. The working group proposal includes
    many great suggestions like incorporating more fresh fruits and
    vegetables and whole grains into a child's daily diet in
    addition to the M&Ms. The working group also suggests limiting
    nutrients that are generally accepted as not being healthy in
    large quantities, like sodium and saturated fat, trans fat, and
    added sugars.
        I agree with these principles. I also believe, however,
    that certain parts of the preliminary working group report
    recommended overly specific standards that would be difficult,
    difficult for industry to meet.
        In 2006, in response to an Institute of Medicine report,
    the Council of Better Business Bureaus and the member companies
    of its Children's Food and Beverage Advertising Initiative
    instituted a wide-reaching self-regulatory standard.
    Representing the overwhelming majority of companies marketing
    food products to children, this initiative's goal was to devote
    at least half, half of all advertising directed at children to
    healthier food options and a healthier lifestyle.
        The initiative's self-regulatory requirements were recently
    expanded to be more rigorous. Now, when marketing to children
    12 and under, member companies must advertise healthier
    products, healthier products and 100 percent of the time.
    Member companies cannot pay for or actively seek product
    placement in programming directed to children. Member companies
    are not permitted to advertise in schools serving pre-
    kindergarten through 6th grade. Member companies have also
    reformulated more than 100 products advertised to children.
    They have decreased caloric levels and reduced sodium, sugar,
    and fat levels, all of these voluntarily.
        It is true that children want what is advertised to them on
    television, magazines, or in a store, whether it is a sugary
    cereal or the Red Rider BB gun made famous recently, but it is
    ultimately the responsibility of parents and caregivers to make
    informed and thoughtful decisions about the kind of food their
    child eats, just as they do for the kind of toys they play
    with.
        The government can play a role, however, in the overall
    health of our children, nutritional education, and to both
    parents and children who can go a long way in helping to
    develop long-term, healthy eating habits.
        Last month, the USDA retired the 20-year-old food pyramid
    and replaced it with My Plate, a simpler and more relatable way
    to teach parents and children what they should be eating and
    how much. The government also runs the Web site, nutrition.gov,
    where anyone can learn more about weight management, dietary
    supplements, and even provides recommendations for healthy
    shopping, cooking, and meal planning.
        I share the President's goal of ending childhood obesity
    and related conditions like high blood pressure, heart disease,
    and diabetes. I respect the working group's commitment to the
    same. But I also believe that children's food and beverage
    advertising initiatives should be encouraged and given a chance
    to test out their impact.
        Moreover, government entities involved in the working group
    should not ignore or forget their important role, providing
    nutritional education in schools and on television, in print
    and on line. Parents must be able to make informed decisions
    about what their children eat through exposure to all food
    choices, the ones that are good for them, the ones that they
    should enjoy sparingly.
        And so, Madam Chair, Mr. Chairman, thank you very much for
    convening the hearing. I look forward to the remainder.
        I yield back.
        Mrs. Bono Mack. I thank the gentleman, and the Chair now
    recognizes Mr. Barton for 5 minutes.

       OPENING STATEMENT OF HON. JOE BARTON, A REPRESENTATIVE IN
                    CONGRESS FROM THE STATE OF TEXAS

        Mr. Barton. Thank you, Madam Chairman.
        I have an opening statement I am going to put in the
    record.
        I want to do a little focus group with all of the people in
    this room. We have got about 200 people. How many had a sit-
    down, home-cooked meal with your family last night? Raise your
    hand.
        I am impressed that that many of you did. That is good. We
    had about, I would say, 25 percent of the audience. You folks
    are the solution to our problem.
        It is not the government giving these guidelines, and the
    agencies here are well-meaning, I am sure. It is the fact that
    we don't take the time to do what we know is right.
        I have a little condo here in Washington. I know this is
    about children's obesity, but this is illustrative. I have a
    gas stove that has an oven and a 4-top cooker--burners. It
    hasn't been connected for 20 years. OK? I have a microwave that
    I use to do microwave popcorn.
        When I got elected to Congress, I weighed 160 pounds. I
    weigh 215 on a good day now. It is not because I don't know
    what is nutritious to eat. It is because I don't take the time.
    I go to a reception or I go to the Whip's office or I go to a
    dinner or I stop at McDonald's. If I am really trying to be
    healthy, I will stop at Subway and maybe get a sandwich.
        My wife is an excellent cook. And when I am in Texas at
    home, I would say about half the time we actually have a sit-
    down meal with her and my 6-year-old son. But she works full
    time, too. So we go to fast food, whether it is Pizza Hut or
    McDonald's or Braum's or Wendy's or Popeye's Chicken or
    whatever, and on the weekends maybe we have the meals.
        The problem is not government guidelines. The problem is
    not knowing what is nutritious. The problem is that in our
    world today we just don't take the time to do what we know we
    need to do, and you can't regulate that. You can't mandate
    that. We can't mandate that everybody sit down with their
    family for an hour and a half and have a balanced meal like
    Congresswoman Blackburn does with her children and
    grandchildren when she is in Tennessee.
        So this is going to be a good hearing. We are going to have
    a lot of good sound bites. But I haven't heard anybody on
    either side of the aisle, my friends on the Democratic side or
    the Republican side over here, saying that the government
    giving us mandatory--even voluntary regulations is going to
    solve this problem. It is up to each of us individually to do
    what we know needs to be done.
        And with that, Madam Chairwoman, I want to yield, I think,
    a minute to Mr. Olson of Texas.
        [The prepared statement of Mr.Barton follows:]
        [GRAPHIC] [TIFF OMITTED] 77930.006

        [GRAPHIC] [TIFF OMITTED] 77930.007

        Mrs. Bono Mack. I am happy to recognize Mr. Olson.

       OPENING STATEMENT OF HON. PETE OLSON, A REPRESENTATIVE IN
                    CONGRESS FROM THE STATE OF TEXAS

        Mr. Olson. I want to thank the chairman emeritus and my
    colleague from Texas. I would like to thank Chairmen Upton,
    Bono Mack, and Pitts for calling this very important hearing.
        Last year, I visited a Frito-Lay plant in the district I
    represent with my 11-year-old son. The plant has 465 employees.
    There is another Frito-Lay office in my home district which has
    181 employees. That is 646 Frito-Lay jobs in the 22nd
    Congressional District of Texas.
        These jobs involve the manufacture, sale, distribution, and
    marketing of snack food products, including products that
    qualify as healthy under FDA regulations. However, under the
    proposal by the Interagency Working Group on Food Marketed to
    Children, many of these products would be restricted, and the
    jobs that produce them would be at risk.
        It is my job as a parent, not the government's job, to
    ensure that my children eat healthy foods and develop healthy
    habits. We don't need the Federal Government dictating which
    foods can be marketed to children.
        Thank you. I look forward to hearing from our witnesses. I
    yield back.
        Mr. Barton. I would like to yield the balance of my time to
    Mr. Kinzinger.

     OPENING STATEMENT OF HON. ADAM KINZINGER, A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF ILLINOIS

        Mr. Kinzinger. Thank you for yielding and for the
    opportunity for the witnesses to come in and testify today.
        The 2009 report language included in the Omnibus
    Appropriation Act directed the IWG to complete a study and
    submit a report to Congress with its recommendations. Congress
    is still waiting. Instead, the IWG devised voluntary nutrition
    standards for food marketing to children that would require
    product reformulation with no scientific evidence that these
    new marketing restrictions would lead to long-term changes in
    eating behaviors or obesity rates.
        I was elected to Congress by Illinois families that want a
    government that fosters a safe and free economy, a government
    that is limited in its scope and effective in its goals. This
    proposal is counter to that. As many as 74,000 food
    manufacturing jobs are in jeopardy with these guidelines. These
    jobs are held by parents working hard to feed their children.
        It is time we return government to the people and rein in
    Washington's culture of senseless regulation. I look forward to
    hearing from the witnesses and hope the IWG sees the need in
    providing a science-based report that includes how the proposal
    will benefit children's health and what it will do to the cost
    of our Nation and jobs and economic growth. And I yield back.
        Mrs. Bono Mack. The Chair recognizes Mr. Waxman for 5
    minutes.

    OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN
                 CONGRESS FROM THE STATE OF CALIFORNIA

        Mr. Waxman. Thank you very much, Madam Chair.
        Let me get this straight. Congress said that we should
    create an interactive task force from the Centers for Disease
    Control, the Food and Drug Administration, the United States
    Department of Agriculture, the Federal Trade Commission. We
    asked that this task force be set up to give recommendations
    about a real problem.
        And what is this real problem? There is an epidemic of
    obesity among our children. This is a serious health matter. A
    third of our kids are now overweight or obese. It is a public
    health problem. It is also a problem of national defense. The
    Pentagon complains they can't find enough kids who are not so
    overweight that they can't go into the military. It is a
    problem any way you look at it. It is a complex problem. But
    the food industry can contribute to this effort of helping to
    educate the public.
        Now, how can they do that? Well, they could talk about
    safer foods, healthier foods, and not target our kids. The food
    industry spends $1.6 billion on marketing to the kids each
    year. And when they are marketing candy, they are not saying
    take only one M&M from your grandmother. They are saying eat
    M&Ms, eat candy, eat all the food that we know is not great.
    But kids don't know.
        So we have got this interagency task force, and they came
    out with a preliminary report. And our committee is going
    crazy. We have called a hearing. The Republicans who run this
    committee called a hearing. It is a preliminary report. It
    means they want to get comments. So before they get comments
    from anybody else, we are going to give them our comments.
        And what are the comments of the Republicans? ``Their
    preliminary proposal is extreme. We don't want Uncle Sam
    planning our family meals. It is going to have an impact on
    jobs.'' That is what they always say. They even have a figure,
    70,000--or 700,000 jobs would be lost each year. I don't know
    where they got that figure.
        ``This is going to lead to litigation.'' Well, I don't know
    how it is going to lead to litigation. If there is a reason to
    sue because people manufacture and sell legal products that may
    or may not be healthy, that is not a tort as I understood
    everything I studied in law school. And just because there is a
    government guideline for a voluntary effort, I don't know how
    that leads to more litigation.
        So the Republicans say it is going to lead to litigation,
    it is big government, we better find out what the impacts are
    on our prices for food, there is not enough of a scientific
    basis to even deal with this issue, big government is not a
    replacement for parents, as if anybody said big government was
    a replacement for parents.
        This is a way for the industry to do something on a
    voluntary basis to help deal with a real public health problem.
    It is a way to educate the public. It is a way not to have our
    kids subjected to advertising that they don't know how to deal
    with. They are kids.
        And then we hear it is too difficult to implement. Well, if
    it is too difficult to implement, then the industry doesn't
    have to implement it.
        I cannot believe this hearing. I cannot believe the
    statements that I have been hearing from the other side of the
    aisle.
        This is an interim report. They are asking for comments.
    The comments seem to suggest that they shouldn't have a task
    force. Well, the Congress set it up. All the rhetoric. ``We
    want limited government, freedom in our country, no regulated
    markets,'' on and on and on.
        Well, let me tell my Republican friends, if we did nothing,
    the epidemic of obesity in children is not going to stop. It is
    going to continue. The food manufacturers and advertisers are
    not going to change what has been working for them, because
    what has been working for them is adding to their profits.
        So somebody should do something. If not government
    suggesting ideas, will industry act on its own?
        I just find this an amazing hearing. The only thing I can
    analogize it to is the hearing we had, after all of the tobacco
    issues that we discussed for many years, the Republicans took
    charge, and we never heard anything more about tobacco. And
    suddenly we had a hearing about tobacco, and the hearing was
    how smokeless tobacco should be encouraged as a way for smokers
    to give up smoking. It was geared to promoting an industry that
    no doubt supported financially many of the Members. I wonder if
    this hearing is about the same subject.
        I yield back my time.
        Mrs. Bono Mack. I thank the gentleman, and now we will turn
    our attention to the panel.
        Our first panel of witnesses will include William Dietz,
    Director of the Division of Nutrition, Physical Activity, and
    Obesity at the Centers for Disease Control and Prevention. Then
    we have Dr. Robert Post, Deputy Director of the Center for
    Nutrition Policy and Promotion at the U.S. Department of
    Agriculture. And then David Vladeck, Director of the Bureau of
    Consumer Protection at the Federal Trade Commission.
        Thank you all very much for coming today. We have your
    prepared statements in front of us all, and we recognize you to
    summarize them. And we will begin with you, Dr. Dietz.

         STATEMENTS OF WILLIAM H. DIETZ, DIRECTOR, DIVISION OF
    NUTRITION, PHYSICAL ACTIVITY, AND OBESITY, CENTERS FOR DISEASE
        CONTROL AND PREVENTION, DEPARTMENT OF HEALTH AND HUMAN
     SERVICES; ROBERT POST, DEPUTY DIRECTOR, CENTER FOR NUTRITION
     POLICY AND PROMOTION, DEPARTMENT OF AGRICULTURE; AND DAVID C.
    VLADECK, DIRECTOR, BUREAU OF CONSUMER PROTECTION, FEDERAL TRADE
                               COMMISSION

                     STATEMENT OF WILLIAM H. DIETZ

        Mr. Dietz. Thank you, Chairwoman Bono Mack and members of
    the subcommittees. It is a great honor for me to be here today
    to talk to you about the Interagency Working Group on Food
    Marketed to Children.
        Mrs. Bono Mack. Excuse me, Doctor. Would you please pull
    the microphone closer to your mouth and make sure that it is
    turned on?
        Mr. Dietz. Is this better?
        Mrs. Bono Mack. Yes, thank you.
        Mr. Dietz. Before coming to CDC, I was a professor of
    pediatrics at Tufts University School of Medicine in Boston;
    and I am a prior President of the Obesity Society and prior
    President of the American Society for Clinical Nutrition. My
    statement provides background on the burden of childhood
    obesity and cardiovascular disease risk factors, a discussion
    of how advertising and the marketing of foods and beverages
    influence the diets of children and youth, and an overview of
    the Institute of Medicine's 2006 report on food marketed to
    children and youth.
        The 2 greatest diet-related health threats to children and
    adolescents in the United States are obesity and the
    development of cardiovascular disease risk factors. Our most
    recent data indicate that 17 percent of U.S. children and
    adolescents are obese.
        The caloric imbalance necessary to reverse the obesity
    epidemic in children is surprisingly small and ranges from 30
    to 170 calories, depending on the age of the child. Modest
    shifts in consumption can reduce this excess.
        Obese children are at a greater risk for a variety of
    health conditions. Approximately 30 percent of obese children
    have high blood pressure, 10 percent of all children have
    elevated cholesterol, and obesity increases the risk of
    elevated cholesterol even further.
        Obese children also have an increased risk of Type 2
    diabetes and multiple other health problems. Virtually every
    system in the body is affected.
        In addition, obesity may lead to severe psychological and
    social problems, such as absenteeism from school,
    discrimination, victimization, and poor self-esteem.
        Although elevated blood pressure and elevated cholesterol
    accompany obesity, sodium and saturated fat in the diets are
    also important contributors. Reductions in salt intake could
    decrease adult heart attacks by 9 percent and adult strokes by
    14 percent.
        The poor quality of the diets of 0- to 5-year-old children
    is emphasized by recent data from the feeding infants and
    toddler study conducted by Nestle. This study showed that 45
    percent of 1- to 2-year-old children and 78 percent of 2- to 4-
    year-old children have sodium intakes above the upper limit
    recommended by the National Academy of Sciences. 75 percent of
    children consume excessive saturated fat. Approximately 30
    percent of children consumed no vegetables on the survey day,
    and 20 to 30 percent of children consumed no fruit.
    Approximately 30 percent of children are consuming pre-
    sweetened cereals. High-caloric-density foods are frequently
    consumed as snacks, and almost 40 percent of 2- to 4-year-old
    children consume fruit-flavored drinks daily. These dietary
    patterns increase the risk of obesity and cardiovascular
    disease.
        Furthermore, food marketing to children leads to increased
    consumption of foods of low nutritional value. The 2006 IOM
    report on food marketing concluded that, quote, food and
    beverage marketing practices geared to children and youth are
    out of balance with healthful diets and contribute to an
    environment that puts their health at risk. Specifically, the
    IOM report found that in 2- to 11-year-olds there is strong
    evidence of the effect of food marketing on food and beverage
    preferences, food and beverage purchases, food and purchase
    requests, short-term consumption, and moderate evidence on the
    effects of food advertising on food and beverage beliefs and
    usual dietary intake among 2 to 5-year-olds.
        We also know that there is a linear relationship between
    television viewing and obesity, and it appears that food
    marketing to children plays an important role. The more
    television a child watches, the more likely they are to consume
    foods while watching television, and those foods are more
    likely to be the foods that are advertised on television.
        Furthermore, several studies have now shown that reductions
    in television time are associated with weight reduction without
    increases in physical activity. This observation suggests that
    the effects of television on childhood obesity are not due to
    television viewing displacing more vigorous physical activity.
    Multiple studies have shown that among products marketed most
    frequently to children are sugar sweetened beverages, sugar
    sweetened cereals, restaurant foods, and salty snacks, the same
    types of foods that contribute to obesity and cardiovascular
    disease risk factors. Foods containing meaningful amounts of
    fruits, vegetables, or whole grains are rarely advertised.
        We want to support parents in providing healthful foods to
    their children. The advertising directed at children prompts
    them to nag their parents to purchase the products that are
    marketed to them. The high-fat, high-salt, and h-i-g-h sugar
    foods consumed as a result of these ads increases the risk of
    obesity and cardiovascular disease, while the provision of
    meaningful amounts of healthful alternatives to these foods
    reduces these risks. The Interagency Working Group is committed
    to developing principles for foods marketed to children that
    can improve the health of our children and ultimately reduce
    health care costs.
        [The prepared statement of Mr. Dietz follows:]
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        Mrs. Bono Mack. Thank you, Dr. Dietz.
        Dr. Post, you are recognized for 5 minutes.

                        STATEMENT OF ROBERT POST

        Mr. Post. Thank you.
        Chairman Bono Mack and Chairman Pitts and members of the
    committee and subcommittees, it is an honor to have this
    opportunity to provide this statement for today's hearing on
    the Interagency Working Group on Food Marketed to Children.
        I am Dr. Robert Post. I am Deputy Director for the Center
    for Nutrition Policy and Promotion in the U.S. Department of
    Agriculture. I represent USDA on the IWG.
        My role of reviewing the technical basis for the IWG's
    nutrition principles is commensurate with my role as the policy
    official leading the development of the 2010 Dietary Guidelines
    for Americans.
        The current epidemic of overweight and obese children in
    the United States is a major concern for USDA. The 2010 Dietary
    Guidelines for Americans reports that eating patterns
    established in childhood often track into later life, making
    early intervention on adopting healthy nutrition and physical
    activity behaviors a priority.
        As you know, the USDA supports a number of food and
    nutrition policies and programs that aim to improve not only
    the nutrition but also the overall health and well-being of
    America's youth. Primary prevention of obesity and related risk
    factors is the single most powerful public health approach to
    reversing America's obesity epidemic over the long term.
    Lifelong habits are developed throughout childhood, and every
    opportunity should be provided to build healthy habits at the
    earliest stages of life.
        Among the strategies reported in the dietary guidelines
    that can be used to help create and promote healthy lifestyles
    for children is supporting effective policies to limit food and
    beverage marketing of unhealthy products to children. Since May
    2009, the IWG has met regularly to study and assess the
    science, critically examine the components of voluntary efforts
    already being employed by various organizations, and
    exhaustively work through scenarios of applying different
    criteria to individual foods and foods marketed as meals.
        To satisfy the directive of the 2009 Omnibus Appropriations
    Act, which called for the creation of the IWG, the working
    group reviewed the 2010 Dietary Guideline Advisory Committee's
    comprehensive report on nutrition research, the Dietary
    Guidelines for Americans, regulations promulgated by the FDA
    and USDA concerning nutrient content and health claims, and
    relevant IOM reports, as well as nutrition standards developed
    by industry groups and various public and private entities
    prior to developing recommendations. The recommendations
    represent voluntary recommendations that might inform and guide
    industry efforts to voluntarily change the promotion of foods
    and beverages to children.
        Based on this study, in April of 2011, the IWG released for
    public comment a draft set of preliminary proposed nutrition
    principles for foods marketed to children and solicited public
    comment on the draft recommendations to gain insights on the
    practicality and feasibility of the proposed recommendations
    that would be in a report to Congress. About 29,000 comments
    were received, 100 or so of which provided substantive
    discussion of the tentative proposed nutrition recommendations.
        Also during this period, the Children's Food and Beverage
    Advertising Initiative, CFBAI, and its participants released a
    new set of food-category-specific uniform nutrition criteria
    that are being adopted by all members of the CFBAI. The CFBAI
    is a voluntary self-regulation program comprising many of the
    Nation's largest food and beverage companies. It is designed to
    encourage advertising of healthier dietary choices to children
    under the age of 12. There are 17 food manufacturers and
    restaurant chains that have signed on to this effort.
        The newly released criteria represent a significant change
    on how the program operates, as each participating company has
    now agreed to follow a unified set of nutrition criteria. The
    goal is that participating companies will adopt these new
    criteria by December 31, 2013. According to the organization,
    its new criteria impose significant challenges on the
    participating companies and require reformulation of many of
    their products if they wish to continue advertising them after
    the criteria go into affect. The CFBAI estimates that one-third
    of the products currently advertised to children do not meet
    the criteria.
        On review, it appears that with the new uniform criteria,
    the industry has made considerable efforts to design and
    reformulate its products closer to the principles tentatively
    proposed by the IWG. The new nutrition criteria of the CFBAI
    appear to be a step forward in changing the food advertising
    landscape, while also taking into consideration the feasibility
    of manufacturers making meaningful changes to the nutrient
    content of food products.
        There are many aspects--or several aspects--of the criteria
    that are helpful in simplifying the IWG's preliminary approach.
    Overall, the CFBAI standards present in many respects a
    reasonable set of criteria to consider for revising the IWG
    preliminary proposal. While the criteria represent a very good
    start towards the marketing of healthier foods, food
    manufacturers should continue to work in improving the
    nutritional content of foods that they intend to market to
    children. We believe that additional changes to nutrition
    principles for advertising can be considered over time, and we
    believe that manufacturers will in fact make earnest progress.
        Thank you very much, Chairman and members of the committee
    and subcommittees, for this opportunity to provide USDA's
    views.
        [The prepared statement of Mr. Post follows:]
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        Mrs. Bono Mack. Thank you, Dr. Post.
        Mr. Vladeck, you are recognized for 5 minutes.

                     STATEMENT OF DAVID C. VLADECK

        Mr. Vladeck. Good morning, Chairman Bono Mack and members
    of the subcommittee. I am David Vladeck, Director of the
    Federal Trade Commission's Bureau of Consumer Protection. I
    appreciate the opportunity to be here today to discuss the
    important issue of food marketing to children.
        Every parent knows how difficult it is to get children to
    eat a healthy diet. We rarely see children having tantrums in
    the produce aisles pleading for mom or dad to load up the
    shopping cart with broccoli or Brussels sprouts. Indeed, a
    cottage industry has formed to advise parents on ways to
    smuggle healthy ingredients into foods their children will eat.
        The FTC wants to support parents in their challenging quest
    to get their kids to eat healthier foods, including, by the
    way, yogurt, peanut butter, Cheerios, some of the other foods
    that were mentioned this morning. But let me be clear about
    this. Not by issuing regulations. The FTC has long encouraged
    strong and meaningful industry self-regulation. We have sent
    reports to Congress with recommendations on a broad range of
    self-regulatory initiatives, including media violence and
    alcohol marketing, in addition to food marketing to children.
        Regardless of what role marketing may or may not play in
    the problem of childhood obesity, the marketing ingenuity of
    America's food manufacturers and entertainment providers can be
    an important part of the solution. The Commission began to
    focus on the issue of childhood obesity in July, 2005, when the
    FTC and the Department of Health and Human Services held a
    workshop on marketing, self-regulation, and childhood obesity
    which, by the way, sparked the industry self-regulatory
    program.
        Several months ago, acting pursuant to a bipartisan
    directive from Congress, the working group released for comment
    proposed recommendations for voluntary industry self-
    regulation--voluntary industry self-regulation. 29,000 comments
    were received.
        Now, Congress did not require us to seek public comment or
    engage with stakeholders, but we did so because we wanted the
    working group process that was used to shape these
    recommendations to be as open and transparent as possible. And
    because it is ultimately up to the food companies to decide
    whether to adopt the guidelines, we needed their input to
    ensure that our recommendations to Congress would be attainable
    for industry.
        The working group took Congress' directive seriously, and
    the draft recommendations we issued were ambitious. As we
    studied the comments, however, we realized that perhaps we were
    too ambitious.
        One significant comment came from the Children's Food and
    Beverage Advertising Initiative, the industry self-regulatory
    group, the CFBAI. The CFBAI's comments announced substantial
    improvements in its self-regulatory program, not just by
    tightening standards but most notably by adopting uniform
    nutritional criteria for its 17 member companies, making the
    program much more transparent and strong.
        The framework of the CFBAI program has much to commend it,
    and I am confident that this framework will be reflected in the
    final working group report. But the FTC's focus and expertise
    is on marketing, not nutrition. So let me highlight for you the
    3 most significant marketing changes that I contemplate with
    respect to the final working group report. Of course, these
    changes will have to be approved by the Commission and the
    other working group agencies, but I believe that these changes
    will focus the final report on ads targeted directly to
    children and will thereby avoid having the working group's
    recommendations covering marketing activities that are family
    oriented or directed to a more general audience.
        First, I anticipate that the final report will not
    encompass adolescents 12 to 17 within the scope of covered
    marketing, except for certain in-school marketing activities;
    second, philanthropic activities, entertainment and sporting
    events also do not appear to warrant inclusion with marketing
    that is child directed; and, third, I do not anticipate that
    the final report will recommend that food companies change the
    trade dress elements of their packaging or remove brand equity
    characters from food products that do not meet the nutritional
    recommendations.
        Parents don't have an easy task when it comes to getting
    their kids to eat healthier foods. The FTC is committed to
    working with its sister agencies and all stakeholders to make
    that burden on parents less daunting.
        On behalf of the Commission, I would like to thank the
    committee and subcommittees for this opportunity to present
    testimony on this important issue. Thank you very much.
        [The prepared statement of Mr. Vladeck follows:]
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        Mrs. Bono Mack. Thank you, Mr. Vladeck.
        The Chair will recognize herself for the first 5 minutes of
    questioning, and I will start with you, Mr. Vladeck. It is good
    to see you again. A different issue that we are working on
    today.
        But before I go to you, I just want to sort of answer
    something that Mr. Waxman had said. He and I had worked
    together on tobacco issues. I have been a staunch supporter of
    the anti-tobacco work both on the Federal level and the State.
    And I also have been working very hard to address the issue of
    prescription drug abuse in our adolescents, and I wish that the
    panel would devote as much attention to that as we are to this.
        You spoke about kids having tantrums in the vegetable
    aisles. When I was a child--I am having flashbacks to my own
    childhood as I sit here and listen to you. And I remember being
    forced--I don't know if anybody in the audience was forced to
    eat cooked liver as a child, but it would smell up the house--
    clearly, some people were--it would smell up the house for a
    week. But our mothers thought it was good for us. And you know
    what? They made us eat it because they thought it was good for
    us.
        But I have been looking at this issue of childhood obesity
    for years. Dr. Frist and I introduced a bill years ago, the
    IMPACT Act, to try to address this problem.
        But I don't think this is the answer. I don't think we are
    there yet. And I recognize all of the work you have done, and I
    am happy to continue to work with you, but I just don't think
    we are there yet.
        And, Mr. Vladeck, you testified that the FTC is currently
    completing a follow-up study of food marketing to children to
    its 2008 study, and it will submit it to Congress later this
    year. Shouldn't the working group report wait at a minimum
    until the FTC has concluded that study and the study required
    by the 2009 appropriations language? And wouldn't the working
    group benefit from the FTC's report?
        Mr. Vladeck. I think that that is a possible approach.
        We are, of course, dealing with a mandate from Congress
    that required us to finish our work a year ago; and, as has
    been pointed out on numerous occasions this morning, we are
    late. This has been a complicated task, and part of the delay
    has been occasioned by our effort to engage closely with
    stakeholders.
        This process has been a long one in part because we have
    held 2 workshops, we have solicited comments. Industry has, to
    its credit, come forward with a dramatic shift in its own self-
    regulatory approach that we need to take into account.
        I don't know whether at this point it makes sense for us to
    wait for what will be at least another 6 months or so while we
    analyze the data that we got from industry. I think my
    colleagues' testimony this morning makes this clear. I think we
    are at a point where I wouldn't say that there is clear
    convergence between the working group and industry, but the gap
    has been narrowed to a point where I think we should go ahead,
    try to finish up. These are voluntary guidelines.
        Mrs. Bono Mack. Let me jump ahead again why I think we are
    missing the boat and I think it is a mistake. Because one hand
    of government doesn't want to talk to the other or wait to work
    together collaboratively on this. And I will turn to Dr. Post
    and Dr. Dietz for their answer to this.
        I grew up as a gymnast and I would spend an awful lot of
    time in the gym as a child. I mean, I am 5'7''. It was kind of
    a dumb sport to do when you are a kid being so tall, but I did
    it. I grew up--I literally grew up on SpaghettiO's and some
    other cereal. That is what I would eat every day.
        You testified that you do not believe that the lack of
    exercise is contributing to this problem. I believe that is
    what I heard Dr. Post say, that you have--is that what you
    said? I might have misheard you. What is the interplay between
    exercise and diet? Where does it come in?
        Mr. Post. In fact, the 2010 Dietary Guidelines stress that
    we are, in fact, at energy imbalance. We need to balance our
    calories with physical exercise.
        Mrs. Bono Mack. What does that mean to a mother? You are
    basically saying that the amount of television and what you
    eat, that it doesn't matter. That is really what you said.
    Again, I think you all are trying to throw a panacea out there.
        And I will tell you as a mom--this is even far more
    complicated than that. Mothers are looking for time and answers
    to, you know, how do we raise our children when we are busy
    working and how do we do it. Maybe we have to look at the fact
    that mothers are busy and stressed and it is easier to grab a
    box from the center aisle than to go to the produce aisles.
        But this troubles me, because I am convinced that our
    children have to get active. And if they were active, they
    wouldn't be watching the TV and they might not see the ads that
    you are afraid of. Is that not true?
        Mr. Post. We are very supportive in all of our programs at
    USDA to balance the idea of energy and physical activity or
    calories in. I think, though, that the comment was made by Dr.
    Dietz in the connection between advertising----
        Mrs. Bono Mack. OK. Can Dr. Dietz then have the last 22
    seconds to solve this problem for me--in 22 seconds?
        Mr. Dietz. I think physical activity in children is
    critically important, and the best data we have suggests that
    it has declined over time. It is certainly a contributor. But
    one of the things about obesity is that I don't think any
    single answer is going to work. I think that we require a
    multisectoral, a multicomponent approach; and physical activity
    is one of those approaches.
        Mrs. Bono Mack. Thank you. My time has expired. And I
    appreciate your answer very much.
        The Chair will recognize Mr. Butterfield for 5 minutes.
        Mr. Butterfield. I thank the chairman.
        Mr. Vladeck, in the Trade Commission's memo accompanying
    the release of the proposed standards back in April, the
    Federal Trade Commission indicated that the goal was to steer
    children away from foods of little or no nutritional value. My
    question is, what evidence do you have that cereal and foods
    the FDA has deemed healthy are foods of little or no
    nutritional value?
        Mr. Vladeck. Well, I will ultimately refer that question to
    my colleagues who work for the nutrition agencies.
        The way our approach worked was quite simple. We want to
    encourage kids to eat healthy foods that make meaningful
    contributions to diet. Many cereals do that. And we wanted to
    discourage kids from eating foods that do not make a meaningful
    contribution to their diet. How the FDA and USDA categorize
    foods, that is not the FTC's expertise. And I would defer to my
    colleagues.
        Mr. Butterfield. All right. Dr. Dietz, Dr. Post, do you
    want to try that one?
        Mr. Dietz. One of the principles that we included was that
    foods marketed to children should contain a meaningful amount
    of a food to encourage according to the dietary guidelines,
    such as fruits, vegetables, whole grains, or dairy. So it was
    less about restricting advertising and more about encouraging
    the advertising of foods that would contribute to a healthy
    diet.
        Mr. Post. And to add to that, of course, the idea is that
    we need to consume less often certain food constituents like
    sodium and saturated fat, and certainly added sugars. So there
    was an emphasis, here again, to promote the more healthful
    choices out there and empower parents with the ability to make
    those choices for their children.
        Mr. Butterfield. As I recall, Congress directed the working
    group to include in its study consideration of the role of
    calories in obesity. But it seems that the working group did
    not include calories in the standards. That is despite the fact
    that the working group members have consistently said balancing
    calories in against calories out is the most effective way for
    consumers to maintain a healthy weight.
        For example, the FDA has said that although there is much
    discussion about, one, the appropriate makeup of diet in terms
    of relative proportions of micronutrients and, two, the foods
    that provide those micronutrients for maintenance of a healthy
    body weight, it is the consumption and expenditure of calories
    that is most important. Health and Human Services has said that
    a calorie is a calorie is a calorie, whether it comes from fat
    or carbohydrates. Anything eaten in excess can lead to weight
    gain. You can lose weight by eating less calories and by
    increasing your physical activity.
        Despite Congress' directive to consider calories, and
    despite your own agency's statements that calories are the key
    to maintaining a healthy weight, your proposal it seems does
    not address calories. Help me with this, please, either one of
    you.
        Mr. Post. Yes. I would be happy to. The thresholds for the
    added sugars and the solid fats are a way to get to the
    calories issue. By setting thresholds, some level, the
    tentative or the preliminary proposal, in fact, had a proxy for
    the calories issue. And by promoting food groups like low-fat
    and fat-free dairy, more nutrient-dense foods, fruits and
    vegetables, that is also a way of decreasing calories from
    added sugars and solid fats. So we dealt with the calories
    issue by the types of nutrients and food components that are
    the subject of the proposal.
        Mr. Dietz. Just to add to that, we were compelled by the
    capacity of certain foods to auto-regulate weight independent
    of calories. So we knew that low energy density foods, foods
    that contained fewer calories per gram, such as fruits and
    vegetables, were more filling than other foods. And in
    addition, we knew that fiber increased the regulation of
    satiety. So that if those foods contained a meaningful amount
    of fruits, vegetables, and whole grains, satiety would be
    automatically regulated independent of calories.
        Mr. Butterfield. I am going to start this question. I might
    have to finish it during the second round. Dr. Dietz, industry
    is concerned about obesity. In fact, broadcasters donate a
    tremendous amount of time to produce and air public service
    announcements, including anti-obesity public service
    announcements to their viewers and listeners. Earlier this
    year, NAB coordinated a let's move flash workout, featuring
    Beyonce, in support of First Lady Obama's initiative aimed at
    curbing childhood obesity. Middle school kids across the
    country participated in this endeavor, as well as local radio
    and television stations, to underscore the importance of
    physical activity as part of a healthy lifestyle for children.
        I am going to continue this question, Madam Chairman, in
    the second round. I yield back.
        Mrs. Bono Mack. I appreciate that. The Chair now recognizes
    Mr. Pitts for 5 minutes.
        Mr. Pitts. Thank you, Madam Chair. And I apologize for
    having stepped out to testify in front of the Rules Committee.
    In fiscal year 2009, Congress explicitly directed the IWG to
    complete a study and a report to Congress. However, the
    guidelines you released in late April did not include a study,
    and the guidelines you developed are directed to industry, not
    a report to Congress.
        I have a series of questions here that each of you can
    respond to. Have you calculated the impact of your food
    marketing restrictions on charitable organizations like food
    banks, Dr. Dietz?
        Mr. Dietz. No, we did not. That was not part of the scope
    of the report as we were instructed.
        Mr. Pitts. OK. Have you calculated the impact of your food
    marketing restrictions on jobs in the food industry? Any of you
    can respond.
        Mr. Dietz. No, we have not. And I know that some numbers
    have been promoted today that suggest that jobs will be lost.
    And I think one of the people on the second panel is going to
    present data which contradicts that assertion.
        Mr. Pitts. What about have you calculated the impact of
    your food marketing restrictions on jobs in the broadcasting
    industry or cable?
        Mr. Dietz. No, we have not, although we think that food
    advertising, food marketing to children will continue, and that
    for example the promotion of healthy products that would
    replace those that are currently advertised would result in no
    loss of jobs in the advertising industry.
        Mr. Vladeck. Can I add one comment?
        Mr. Pitts. Yes, Mr. Vladeck.
        Mr. Vladeck. The CFBAI proposal, which sort of moves the
    discussion in ways that we had not anticipated when we issued
    our preliminary report, I think reflect industry's view that it
    can move ahead without sacrificing economically. I assume that
    the CFBAI proposal is based on industry's clear-eyed assessment
    of the costs and benefits of making these changes to their
    products. And so, you know, part of the concerns that you are
    raising I think go to the economic rationality of our proposal.
    I think that, you know, there has been a change in the game.
    And it is not at all clear to me that those concerns are
    necessarily going to have traction given where the industry
    itself has moved to.
        Mr. Pitts. Well, what about did you consider the impact of
    your food marketing restrictions on the price of food?
        Mr. Vladeck. Sir, we asked comment broadly in large measure
    to have a dialogue with stakeholders, including food producers
    and marketers, about what would be the impact of adoption of
    these guidelines. So, you know, those are the kinds of issues
    that we tried to discuss. We did not get in our comments any
    information of the kind that you have just identified. This was
    not an issue that was raised by any of the 29,000 commenters
    that commented on the preliminary draft.
        Mr. Pitts. OK. The nutrition standards underlying your
    proposal are inconsistent with, and stricter than the standards
    for the standards USDA applies to school lunches or the WIC
    program.
        Does it make sense that the government has two sets of
    nutrition standards, one for the food a child can be served in
    school and a second for a food advertisement a child can see on
    a cartoon network? And why?
        Mr. Post. The thread that holds all of the food nutrition
    programs together in the Federal sector is the Dietary
    Guidelines for Americans. And that, in fact, is the foundation
    that sets directional approaches for nutrients and foods: more
    food groups, less of the nutrients of health concern. And so
    that is, in fact, the way all of our efforts are joined. When
    it comes to differences between the IWG's proposal and programs
    like WIC, we have got to understand that these are programs
    that focus on a particular need for a particular circumstance
    or a client that has particular nutritional needs. So the
    market baskets would be different and the food meal patterns
    would be different for postpartum moms, for children up to 5
    years who are looking for nutritional assistance. And the same
    thing would apply to the school program, where a complete meal
    is depended on for giving the nutrients and the food groups
    that a student needs. So you would see those differences. There
    really isn't a valid comparison. But the foundation is the
    same. And that is the dietary guidelines for Americans.
        Mr. Pitts. If private industry--my time is almost up--is
    already doing this, doesn't that mean that government action
    isn't necessary?
        Mr. Vladeck. We were asked by Congress to submit a report,
    and we will do that. I think that government action here is
    simply giving our views about what would be the kinds of foods
    we would like to see marketed to kids. Again, I can't stress
    enough that these are voluntary guidelines. And our mandate was
    to help give guidance to industry. And that is what we are
    trying do.
        Mr. Pitts. Thank you. My time has expired.
        Mrs. Bono Mack. Thank the gentleman. The Chair recognizes
    Mr. Engel for 5 minutes.
        Mr. Engel. Thank you, Madam Chair. Mr. Vladeck, I am glad
    you reemphasized voluntary guidelines, because this is all that
    this is. I have heard some comments from my friends on the
    other side of the aisle that I really just find incredulous. I
    mean if we want to have the head in the sand approach and
    pretend that obesity is not a problem, or know that it is a
    problem but have this sort of visceral reaction to government
    doing anything about anything, then I think we are really just
    frankly kidding ourselves. There can be no substitute for the
    family. There can be no substitute for parents. Government is
    not in it to substitute. But I think that government, the panel
    of professionals and people doing this report can help guide
    us. You know, I am a father of three. My kids are grown now.
    Any help that I could get I would take. And what responsible
    parent wouldn't do it?
        So rather than being attacked for government intrusion or
    other such nonsense, you know, we should be saying thank you,
    because I think your report helps all of us as parents and all
    of us as a country. Obesity is a problem that we can't ignore,
    and we need engagement from all sides. Of course responsible
    parenting, as well as industry participation, government
    participation. I mean working together, you know, maybe we can
    get at this problem. We have directed FDA and FTC and CDC and
    USDA to come up with these proposals. And I think that the
    proposal you have all come up with is a reasonable response
    that all parties should be able to support. It is a voluntary
    proposal, and it meets the industry more than halfway. And it
    is a positive step forward as we all work together.
        Now, let's look at some statistics. Obesity costs the
    country $147 billion per year in direct medical costs, which is
    over 9 percent of all medical spending. And economists have
    calculated that the total economic cost of the obesity epidemic
    nears $270 billion per year. Kids would just have one of the
    testimonies here before, I think it was Dr. Post talked about
    kids drinking Kool-Aid or whatever it is. They don't eat fruit.
    They don't drink things. And this is something that we have
    perpetuated on these kids.
        I want to just ask you about industry self-regulation. I am
    told that the percentage of unhealthy TV food advertisements
    has decreased significantly since industry tried to self-
    regulate in 2006. Is that true? Is it not true? How is the
    industry self-regulation working, in your opinion?
        Mr. Dietz. There was a recent paper which indicated that
    the products advertised by adherence of CFBAI decreased by
    about 10 percent, but were replaced by an increase in fast food
    restaurant advertising. I would describe that as a modest
    change.
        Mr. Engel. Well, I think that that shows that we still have
    a lot of work do, and that if we can use some commonsense
    approaches, which is what you are doing with these voluntary
    guidelines, I think it is very important. You know, Mr. Waxman
    before raised tobacco. I mean I have been in this Congress long
    enough to remember when the tobacco industry came and sat right
    in front of us and told us that tobacco was not something that
    had injury, that tobacco was just fine. And the industry
    resented it, and resisted for years and years. I mean we now
    have stamped on cigarettes that tobacco kills, yet people buy
    tobacco and smoke them. I mean we are not talking about a panel
    that intrudes into people's lives and tells them what they can
    or cannot do. We are talking about a report that helps us
    understand the problem and helps us to take steps as a country
    to ameliorate the problem.
        So I just want to thank you, and unless you have anything
    else to add, I will yield back my time. Because I think that it
    is so unfair for people to portray this as obtrusive, big
    government. It is just nonsense. This is something that
    Congress directed you to do. I think it is a guideline. As a
    parent, I would have wanted to have this guideline. And I
    listened to all your testimony, and I just want to thank you
    for the good work you are doing. I yield back, Mr. Chairman.
        Mr. Pitts [presiding]. The Chair thanks the gentleman, and
    recognizes the gentleman from Illinois, Mr. Shimkus, for 5
    minutes for questions.
        Mr. Shimkus. Thank you, Mr. Chairman. And sorry I missed
    your opening testimony. I had to go to the Rules Committee on
    another bill. So obviously, I have had a good opportunity to
    evaluate your opening statements, along with what was involved
    with the letter sent by Members to kind of raise issues of
    concern based upon the Senate language that asked for you all
    to do that.
        I guess the first question is you all were asked, through
    the language in the bill, to actually do a report back. Is that
    correct?
        Mr. Vladeck. Yes.
        Mr. Shimkus. So Mr. Vladeck says yes. And what we have seen
    is guidelines being offered, which for us has a concern that we
    don't have the full report. We just had a submission, or the
    proposed guidelines. Now, to my good friend from New York State
    and the city, our concern is that when these guidelines are not
    voluntary, they will be in essence the force of law. And if I
    look at the top 100 most commonly consumed foods, beef burgers,
    I just had one for lunch--I am not a child any more--beef
    burger, hamburger, 95 percent lean, one patty cooked and bun
    doesn't make it. Bottled water, noncarbonated. Bottled water
    doesn't make it. Egg scrambled. Egg scrambled, made with added
    fat and salt, doesn't make it. Hot cereal, a leading instant
    oatmeal, raisin, prepared with water does not make it. Leaf
    salad, iceberg lettuce chopped with salad dressing, light
    ranch, doesn't make the list, doesn't make it because of the
    dressing, the sodium in the dressing. That is our problem with
    the government. That is the problem with--you know, when I go
    home, my constituents are saying government is too big, it
    costs too much, get out of things that it really has no
    constitutional right to be delving in. The ability of parents
    to adequately take care of their kids, feed them what the
    parents would like the kids to be fed, the nutritional issues,
    to have big government do this, this is really bizarre.
        And so I am glad we have had this hearing today. And I
    guess the question is--I mean we already talked about it, we
    would like to see the science based before guidelines, a true
    analysis of this. But let me go to a question for Director
    Vladeck.
        Can you comment on the role taken by FTC during the
    Interagency Working Group process related to appropriate
    nutritional levels? What did you all do?
        Mr. Vladeck. Well, our expertise is more in the marketing
    side than the nutrition side.
        Mr. Shimkus. Exactly.
        Mr. Vladeck. Though I think it is important to note,
    Congressman, that many of the foods that you mentioned as
    somehow being excluded by the draft guidelines, I don't believe
    that is correct. I think that Dr. Post would love a minute to
    just sort of clear up the record on this issue.
        Mr. Shimkus. Well, we can have you submit additional
    comments for the record. Let me go on and continue on this line
    of questioning to Mr. Vladeck. Did FTC make any judgments or
    issue specific recommendations on this topic informally or
    formally during the Interagency Working Group? The question is
    what has the FTC done on--I mean if you question my analysis of
    the food groups based upon--I don't want to know what Dr. Post
    did. I want to know the FTC's involvement in the health
    analysis of these foods. And is that a role that you have any
    expertise in?
        Mr. Vladeck. This is not our area of expertise, no. We were
    certainly at the table, but I think it is fair to say the
    nutrition guidelines were principally the product of the expert
    agencies, the Food and Drug Administration, the U.S. Department
    of Agriculture, and the Centers for Disease Control and
    Prevention.
        Mr. Shimkus. Yet here is an FTC memo questioning the USDA
    on their nutritional standards. So you all are questioning the
    USDA, who should have the expertise on nutritional aspects. Our
    concern is you are playing the role of food analysis, when you
    should be in advertising and the like. And I yield back my
    time.
        Mr. Pitts. The Chair thanks the gentleman, and yields to
    the ranking member emeritus, Mr. Dingell, for 5 minutes for
    questions.
        Mr. Dingell. You are very kind. Thank you, Mr. Chairman.
    Like everybody in this room, I am troubled about children's
    nutrition. But the process by which we arrive at good standards
    is a matter of great importance to me. I note that in 2009 the
    working group was, and I quote, directed to conduct a study and
    develop recommendations for standards for the marketing of food
    when such marketing targets children who are 17 years old or
    younger. Now, that was not done. I find myself curious, because
    here you are coming forward with guidelines. Congress has
    suggested that you should tell us what is going on. You have
    not done so. We find that this gives us real problems in terms
    of understanding what is to be done or should be done. And we
    have to think that you, despite the fact that you are hired
    full-time to work on these matters, will be having equal
    difficulty.
        Now, according to your testimony, the guidelines you
    released in April are not based on any new studies conducted by
    the working group's agencies. Is that correct? Yes or no? Yes
    or no?
        Mr. Post. We did----
        Mr. Dingell. I don't have a lot of time. Yes or no?
        Mr. Post. No new study.
        Mr. Dingell. No new studies. The guidelines you developed
    are directed at industry, and not a report to Congress. Is that
    correct?
        Mr. Post. Excuse me? No.
        Mr. Dingell. Now, you note in your testimony that the
    working group recommendations, quote, will cover all the most
    important aspects of children's marketing, without being unduly
    restrictive. Did the working group weigh any cost-benefits that
    the recommendations would have on industry? Yes or no? Either
    Mr. Vladeck or Mr. Dietz, you may proceed.
        Mr. Vladeck. Not in the way you are describing it, no.
        Mr. Dingell. OK. Now, does industry agree on this? Yes or
    no?
        Mr. Dietz. More or less.
        Mr. Dingell. OK. Now, you note in your testimony that FTC
    has long been an advocate for strong and meaningful self-
    regulation. I happen to agree with that, and I happen to have
    been a strong supporter of that. In the instance of food
    marketing, industry has been self-regulating marketing to
    children to ensure that foods advertised are healthier since
    2006. And this is to Mr. Vladeck. Do you believe that the
    industry's self-regulation of food marketing to children has
    helped to ensure the products advertised to children and their
    parents are healthier? Yes or no?
        Mr. Vladeck. Yes.
        Mr. Dingell. OK. Now, as you know, the Children's Food and
    Beverage Advertising Initiative recently released
    recommendations to improve nutritional standards of food
    marketed to children that member companies must meet by
    December 31, 2013. Do you believe that these recommendations
    will help to improve the nutritional content of products
    advertised to children? Yes or no? Again, Mr. Vladeck.
        Mr. Vladeck. Yes.
        Mr. Dingell. Have you consulted with industry and do you
    have their comments or agreement? Yes or no?
        Mr. Vladeck. We have had lots of comments from industry,
    yes.
        Mr. Dingell. Now, do you believe that these recommendations
    will help encourage development of healthier foods for
    children? Yes or no?
        Mr. Vladeck. Yes.
        Mr. Dingell. Now, will the working group take into
    consideration the set of nutrition principles set forth in the
    initiative before finalizing its own guidelines? Yes or no?
        Mr. Vladeck. Yes.
        Mr. Dingell. Now, I would like to focus for a moment on
    breakfast cereal--this is a major product of my home State of
    Michigan--and the science regarding the relationship between
    cereal consumption and body weights. Specifically, I note that
    several significant studies appearing in the Journal of the
    American Dietetic Association, including a study conducted by
    the NIH's National Heart, Lung and Blood Institute, established
    that children who eat cereal frequently are less likely to be
    overweight than those who eat it less frequently. The result
    was obtained for all age ranges. But to take an example from
    one of the studies, kids 7 to 9 who eat cereal eight or more
    times per 14 days are three times less likely to be overweight
    than kids who eat cereal zero to three servings per cereal in a
    14-day period. In fact, dietary guidelines recommended eating
    nutrient-dense breakfast, and suggested that not eating
    breakfast is associated with excess body weight, especially
    among children and adolescents. Eating breakfast has also been
    associated with weight loss and weight loss maintenance.
        Shouldn't we perhaps be encouraging kids to eat more cereal
    as a part of a healthy breakfast instead of a less amount of
    this as the preliminary proposal would do? Yes or no? I will
    take Mr. Vladeck on that.
        Mr. Post. No. We support breakfast cereal.
        Mr. Dingell. Now, like all members of this committee and
    the witnesses before us, I believe strongly we must address the
    rising issue of children obesity in this country. It is costly
    for health and future success of the country, and it is costly
    to our health system. So as we work to address this issue,
    though, we must ensure that the actions and guidelines proposed
    by the Federal Government do not negatively impact business,
    industry, and job creation.
        One more question, and I know I am beyond my time, Mr.
    Chairman, but I am curious, how do you assure us that these
    voluntary guidelines will not become grafted into the law as a
    statement of government policy or something which will achieve
    a mandatory impact upon industry?
        Mr. Vladeck. We have issued----
        Mr. Dingell. How are we to ensure that some lawsuit or some
    good lawyer at some future time is not going to say, oh, these
    guidelines say this, and therefore these people have done a
    significant hurt, have committed a tort, and this class action
    is going to be decided against them?
        Mr. Vladeck. Sorry, I didn't mean to interrupt.
        Mr. Dingell. Pardon?
        Mr. Vladeck. Were you finished? I didn't mean to----
        Mr. Dingell. I am more than finished. I am over my time by
    a minute and 21 seconds.
        Mr. Pitts. You may respond if you wish.
        Mr. Vladeck. There is this myth that somehow voluntary
    guidelines will be the foundation of litigation brought against
    the food companies. We have not ever seen any evidence of that
    kind of litigation being brought. We issue voluntary guidelines
    on a number of topics, including seven reports to Congress on
    media violence that suggests all sorts of industry self-
    regulatory proposals. Industry has adopted them to some extent,
    but not completely. We have never seen litigation on that. The
    Supreme Court recently relied heavily on our self-regulatory
    proposals in Brown v. Merchant Education Enterprises, this was
    the video violence case that the Court resolved last term,
    cited extensively to our research on this issue and talked
    about the industry compliance. Some parts of the industry
    comply, some do not. It has never been the trigger of
    litigation.
        Mr. Pitts. Thank you. The Chair thanks the gentleman, and
    yields to the gentleman from Kentucky, Mr. Guthrie, for 5
    minutes for questions.
        Mr. Guthrie. Thank you, Mr. Chairman. Some of the concerns
    that we have when we have these kind of situations, I was at a
    rock quarry on Monday, and a Federal prosecutor went to a rock
    quarry because the garbage can was overflowing. And in the
    whole criteria of safety in the section that the inspector
    looked at, part of it was are you having workers at high
    altitude not strapped, and another one is can you close the lid
    on the garbage can. So that is where you get to that we just
    got to make sure that we have reasonableness in what is going
    forward.
        And I just took the same sheet, I don't know if you all
    have that or not, that Mr. Shimkus was showing to Mr. Post. And
    I kind of came up with a day's meal for my kids, and ask if
    this would meet the 2021. If I start out with scrambled eggs,
    wheat toast with jam, and then 2 percent milk. And then for
    lunch when they went to school I had a turkey sandwich on wheat
    toast with vanilla yogurt, low fat, and either bottled water or
    2 percent milk. And then for dinner we had a light salad--a
    salad with light ranch, chicken breast, corn, green beans, I
    did put in a roll, and bottled water or 2 percent milk.
        Would any of that meal fit the guidelines of the 2021
    criteria?
        Mr. Post. Well, yes, it would. We, in fact, went through
    considerable effort to conduct a study. We reviewed and
    incorporated findings from numerous studies. We looked at IOM
    reports. We looked at the Dietary Guidelines. And then we did
    testing. We did our homework and did testing of our proposed
    thresholds. To test the feasibility of the April 28 preliminary
    proposed criteria, we analyzed foods commonly advertised to
    kids, to children. And we are concerned that parents continue
    to depend on the foods that they have learned are the more
    healthful choices. We found that many products in the various
    product lines meet the April 28 proposed principles, including
    tuna, peanut butter, flavored low-fat milk, orange juice, oat
    cereals, instant oatmeal, popcorn, baked chips, salted peanuts,
    yes, salted peanuts, whole wheat bread, and even fast-Sfood
    meals. Water was never excluded. Canned vegetables, we have
    heard about that as well, that are low in added sodium would
    certainly meet the criteria, although it is doubtful many are
    advertised to kids. But we did our homework, and we do have the
    information to know that there are foods that are eligible for
    advertising.
        Mr. Guthrie. I don't know if you all have this list or not.
    It shows meets 2021 target criteria, the same one Mr. Shimkus
    had. And everything I just mentioned didn't--it says bottled
    water doesn't meet the guidelines, less than 50 percent of a
    food group. Chicken breast, see if I can find it on here.
    Anyway, none of those, according to this analysis, meets that
    criteria. And I know you can prepare things differently. If you
    fry an egg you can do it differently than if you scramble an
    egg, and you can add sodium if you salt. But it just seems that
    as I looked at this list, you know, I am concerned about
    childhood obesity. If anybody want to do something to really
    open their eyes, tour a dialysis place and see what people are
    doing when they are older and they are obese and it happens
    when they get diabetes. It really opens your eyes. But as you
    start looking through things that according to this analysis,
    all family cereal, all leading family ready to eat cereal, no,
    sodium, added sugar; lasagna, no, saturated fat, sodium. I mean
    just different things that are on this criteria, it just seems
    like it is not just the M&Ms that Congresswoman Blackburn
    talked about and getting a couple M&Ms so you eat the healthy
    stuff. It seemed like a whole list of things that most American
    parents would say I am giving my kid a turkey sandwich on wheat
    bread and giving them vanilla low fat yogurt. It is because of
    the vanilla flavoring I think is why it doesn't meet--but it is
    low fat--doesn't meet the guidelines. That is when I was
    looking through that and said this is--we are spending a lot of
    time on stuff that--go ahead. It is almost like the guy getting
    cited for his garbage can being full.
        Mr. Post. If I can respond, we were focused on foods that
    are marketed to kids. I think the list you have are foods that
    are consumed, not necessarily the same foods that we
    considered. Beer and coffee are on that list. You know, we
    wouldn't consider that as foods marketed to children. So it is
    a matter of looking at what we did, and that is the foods that
    are commonly advertised.
        Mr. Guthrie. Even if these aren't marketed to children,
    somebody is putting these guidelines saying that that is not a
    recommended 2021 target, meets the guidelines for a healthy
    meal. I mean whether it is marketed to a child or not. Because
    I try to find a turkey sandwich when I am traveling around for
    the purpose of being healthy. And I am about out of time. But
    as I was saying, as you start going through these guidelines,
    you say it just seems to be--you know, it is not about certain
    foods that we would all look at and say, well, maybe that is
    too much for a kid to be eating, you know, whatever, I am not
    going to bring all those up. But when you look at this 2021 it
    doesn't meet the target, it just kind of opens your eyes of--
    well, I will let you finish. I guess I am about out of time.
        Mr. Post. Just as a last response, we are looking to
    industry in changing the nature of the foods out there,
    obviously, and we know through the CFBAI effort there is a
    great effort there. So we are looking forward to the work that
    that proposes occurring over the next couple of years. So, we
    know we can get more healthful choices out there.
        Mr. Pitts. The Chair thanks the gentleman, and yields to
    the ranking member of the Health Subcommittee, Mr. Pallone, for
    5 minutes for questions.
        Mr. Pallone. Thank you, Mr. Chairman. Gentleman, I am kind
    of following up on what Mr. Guthrie said. I don't mean to be
    repetitive, but I wanted to ask. The Grocers Manufacturing
    Association says that the working group recommended nutrition
    standards are arbitrary, have no basis in scientific evidence,
    and conflict with Federal dietary guidance and nutrition
    policy. And then they go on to say that under the working
    group's recommendations, and I quote, whole wheat bread,
    breakfast cereals, reduced fat yogurt, canned vegetables, and
    bottled water could not be promoted for consumption by
    children.
        I just wanted to start with Dr. Post to comment on that, if
    you would. Is it really true that your report recommends
    against marketing to children whole wheat bread or reduced fat
    yogurt and these other listed foods that they talk about?
        Mr. Post. Well, in the work that we did, in the study that
    we did, and what we reviewed and incorporated, we did look at
    the numerous studies that are already out there on the issue.
    We did, in fact, exhaustively go through the Dietary Guidelines
    advisory committee's comprehensive nutrition research report.
    We looked at the Dietary Guidelines exhaustively as well. And
    we considered regulations that are promulgated by FDA and USDA
    governing nutrient content claims and health claims and food
    labeling. We looked at relevant IOM reports, and industry
    groups' reports, and various public and private entities'
    standards that are out there. We know that there are foods,
    because we did our homework and we did what we called food
    runs, we did our analyses to know that foods like whole wheat
    bread, and orange juice, and oat cereals, and popcorn, and I
    mentioned salted peanuts, will in fact pass the thresholds that
    were established for the preliminary recommendations. And we
    know, too, now with the CFBAI effort, that there are foods that
    can in fact be advertised. Although some work is needed, as
    that organization reported; to continue to reformulate is a
    necessity. But for the most part, yes, there are foods out
    there. So the assertion is incorrect. There are foods that can
    be advertised.
        Mr. Pallone. All right. And Dr. Dietz or Mr. Vladeck, did
    you want to comment on that at all? No? OK. I mean I think it
    is important that, you know, the standards that you recommend
    to Congress have to remain aimed at promoting healthy children,
    but they have to be achievable, or otherwise the industry is
    just going to ignore them. And they also have to set clear
    targets that will lead to improved nutritional quality of the
    foods that are marketed to children.
        You mentioned the IOM. You know, some today are saying that
    we don't have enough science to justify these guidelines for
    marketing foods to kids. And the IOM did in fact say there is
    no clear causal relationship between advertising and body fat
    levels of kids in their report, I guess in 2006. Now, I know
    none of you served on that IOM panel, but can someone help me
    understand why the working group, you know, recommends changes
    in marketing foods to kids given, you know, that the IOM is
    saying there is no clear causal relationship? What is your
    response to that?
        Mr. Dietz. I am not sure whether you were here for my
    opening comments.
        Mr. Pallone. I wasn't. I had to go to Rules. Sorry.
        Mr. Dietz. The caloric imbalance necessary to reverse
    obesity is pretty small. It is about 30 calories for young
    children, 2- to 5-year-olds, and about 150 calories for 6- to
    11-year-olds. Our belief is that modest reformulation or modest
    reductions in the caloric content of foods commonly consumed by
    children could achieve that deficit. Not a single food, but
    across the board. And we also know that there is a direct
    relationship between television viewing and obesity in children
    that seems to be mediated by the consumption of foods
    advertised on television. So there seems to be this linkage
    between television advertising, consumption of foods advertised
    on television, and obesity.
        Despite the conclusions of the IOM panel, it is worth
    examining a little more carefully what the studies were that
    they looked at. They reviewed about 65 studies. About 75
    percent of those studies, some of which were cross-sectional,
    so you can't really demonstrate causality from those, but about
    75 percent of those studies found an association between food
    marketing and obesity in children. But the more important
    studies, in my view, are the intervention studies that have
    shown that reductions in television time are associated with
    reductions in weight without a concomitant increase in physical
    activity, pointing to that connection between television
    viewing and obesity in children.
        Mr. Pallone. So there may not be a direct or clear causal
    relationship, but it is still something that, you know----
        Mr. Dietz. Admittedly circumstantial.
        Mr. Pallone. OK. Anyone else want to comment on that? All
    right. Thank you, Mr. Chairman.
        Mr. Pitts. The Chair thanks the gentleman, and recognizes
    the gentleman from Ohio, Mr. Latta, for 5 minutes for
    questions.
        Mr. Latta. Thank you, Mr. Chairman. And gentlemen, thanks
    very much for joining us today. It is a very interesting
    conversation that we are having here this morning. You know,
    one of the things that I would like to ask is let's go back in
    time, if we can.
        I know that on page 3 of Mr. Vladeck's testimony you have
    that the Institute of Medicine has strong evidence that TV ads
    influence food and beverage purchases and requests for kids
    under the age of 12. When these studies were being done, did
    you go back and check what happened with advertising 40 years
    ago, 50 years ago, 60 years ago, 70 years ago? Because I am
    just kind of curious. Because I grew up in the late 50s and
    early 60s when I was a kid. Now, granted we got two channels on
    a good day when I was a kid, black and white, and some days
    they came in, some days they didn't come in. But Saturday
    mornings was my favorite day of the week because that is when
    all the cartoons were on. Plus that is when all the cereal
    commercials were on. OK? And I am thinking back through the
    kids I went to school with that we didn't have an obesity
    problem. But I tell you what, we ate so much what we would
    consider junk food today. But it is kind of a difference in
    time.
        And also if you go back to the late 30s and 40s, I am
    always interested in listening to old recordings of old
    advertising, and some of the things how they used to advertise
    to kids at that time. Of course, they were sitting at a radio
    staring at a radio. Nothing was happening except for a sound
    coming out. But we have had advertising going on for decades
    specifically to children, but it seems like only recently that
    we have had this obesity problem really starting.
        And I guess the question I would ask is this, that Mr.
    Barton, or Chairman Emeritus Barton I think was right on point
    when he was talking about families and sitting down and eating
    meals and preparation. And I tell you when I came home as a kid
    from school, if my sister and I got home and we said, gee, is
    there something to eat, my mom would actually make oatmeal. We
    would eat cabbage hearts, carrots, apples, and all these other
    things. And also we had this great fear. When I was a kid, if
    our parents ever saw us in the house, I don't care if you were
    at your friend's house, if you were sitting, that must mean you
    had time to do more work, I don't care if it was school work or
    housework or yard work. So we took off. But, you know, are
    there studies out there that go back and look at what was
    advertised 40, 50, 60 years ago and how that affected kids when
    you did the study?
        Mr. Vladeck. You know, we are about the same age. And I
    remember Saturday mornings fondly as well. Of course, in those
    days there wasn't very much fast food. There wasn't much
    prepared food. Most of the meals, my mom worked, but she cooked
    dinner from scratch every night. I don't know whether they are
    the kinds of long-term studies that you are describing. We will
    take a look, and we are happy to get back to you on that. Maybe
    one of my colleagues does, but I am not aware of the kind of
    analytic work that you----
        Mr. Latta. If there are studies from back then, I would be
    very interested to see if somebody went back and looked at
    that, especially with obesity rates.
        Mr. Post. Just to add to that to bring on the issue of
    complexity, we know the food environment is so much more
    complex, and the Dietary Guidelines for Americans has a whole
    chapter now that recognizes how complex the food environment
    has become, that it is not, you know, simply a household
    influence anymore; there are so many other influences.
        Mr. Latta. Also, if I may, and I just throw this out
    because I know Mr. Dietz' testimony on page 6 when he is going
    through about of the more than $200 billion for children and
    youth collectively spent annually, ages 8-12, I didn't have any
    money when I was a kid unless I shoveled somebody's driveway or
    mowed. So the money I got came from my parents somehow. So it
    is really a question I think also today is that where these
    kids are getting the money, who is buying the TVs, who is
    buying the computers? It is the parents. And unfortunately, in
    a lot of cases, as we all know, the parents plop their kids in
    front of the TV set, put a snack in front of them, and voila,
    you now have instant food, you have an instant baby-sitter. So
    I think a lot of it falls back on where the parents are. And I
    know I think Mr. Dietz made the comment in regards to that, you
    know, kids nag their parents. And I told both my girls a long
    time ago that I want them to always remember there is a
    difference here, that I was their dad, not their best friend,
    and they had to figure out there a was a big difference between
    the two. But I really would be interested if we could find out
    if studies have been conducted in the past, especially in the
    40s--40 or 50 years ago, in the infancy of television, when
    those commercials were still really out there, but the obesity
    from then to today, I would like to really get that analysis.
        And I see my time is up, Mr. Chairman, and I appreciate the
    time. Thank you very much for being here.
        Mr. Pitts. The Chair thanks the gentleman, recognizes the
    gentlelady from California, Mrs. Capps, for 5 minutes for
    questions.
        Mrs. Capps. Thank you, Mr. Chairman. And I am really
    pleased that we are able to have today these two subcommittees
    coming together to discuss what is such an important topic. And
    I appreciate the testimony of the three presenters so far. I am
    pleased that we are here today to discuss the partnership that
    has in the past and I hope will continue to exist, between
    private industry and public health professionals to address the
    marketing of less healthy food to children, that being our
    goal. But I worry that we are losing sight of the reason we are
    having this discussion at all.
        Your testimony, Dr. Dietz, clearly makes that point. About
    one-third of our Nation's kids are overweight or obese,
    affecting not only their physical and emotional health, but
    also the fiscal health of their families and of our Nation.
    Specifically, Dr. Dietz, you note that the direct costs of
    childhood obesity are at least $3 billion a year. And this
    health condition, that is an epidemic really, and the high
    costs often continue into adulthood. In light of these numbers,
    it is clear to me that the obesity epidemic necessitates an
    equally strong response. As a former school nurse as my
    background, protecting the health and well-being of our
    children is one of my greatest concerns. However, the potential
    benefits of these voluntary guidelines on our national health
    care expenditures is also an important factor that I believe
    these guidelines could themselves address.
        So Dr. Dietz, would you take a minute or two to explain
    more to us on the record about the costs of the obesity
    epidemic to our health care system?
        Mr. Dietz. As you point out, the costs in childhood are
    about $3 billion a year. This was a recent study published in
    about 2009 by Leo Trasande. That is trivial compared to the
    costs of obesity in adults, which somebody else mentioned
    earlier is about $147 billion.
        Mrs. Capps. And isn't it true that obesity in adults almost
    always starts at some point in childhood?
        Mr. Dietz. The majority of obesity in adults, at least
    historically, has started in adulthood. The childhood obesity
    has contributed a minor portion of that obesity. But what is a
    concern about childhood obesity that persists into adulthood is
    that it accounts for a disproportionate share of severe obesity
    in adulthood, and therefore may contribute disproportionately
    to the costs of obesity in adulthood.
        Mrs. Capps. So in terms of other costs?
        Mr. Dietz. Well, the costs that have been estimated in the
    paper that we published that cited the $147 billion, that was
    the costs associated with obesity, which also accounted for the
    costs of cardiovascular disease, diabetes, and the
    hospitalizations and medications associated with all the
    diseases associated with obesity.
        Mrs. Capps. Right. So Medicare, Medicaid, private insurers
    are shelling out more money.
        Mr. Dietz. Well, a big concern is about half those costs
    are borne by Medicare and Medicaid.
        Mrs. Capps. And this is not to mention the additional
    indirect costs from decreased productivity and absenteeism from
    school. So there are some ripple effects as well into the rest
    of society. Like most chronic health conditions, I am convinced
    that primary prevention, doing all we can to stop obesity
    before it ever starts, is key to addressing these concerns.
        I want now to turn to Mr. Vladeck. As you may know, a
    different take on this topic, in 2003 the IOM issued a report
    on the marketing of alcohol to kids. A similar kind of
    questioning came from my colleague Mr. Pallone. But with
    respect to the comparison with alcohol, IOM concluded, like in
    the case we are discussing today, that there was no clear
    causal link between marketing alcohol and the use of it by
    kids, but still recommended limitations on alcohol marketing to
    kids.
        There are of course differences between alcohol and food.
    But a few years later, in 2008, at the close of the Bush
    administration, the FTC issued a report. Mr. Vladeck, the
    industry was engaged in self-regulation at that time. They said
    the IOM report was not based on strong science. What did the
    FTC do in that 2008 report?
        Mr. Vladeck. We encouraged self-regulation. And these are
    difficult areas for us. We do not have, particularly in the
    food area, rulemaking authority that would permit us to
    regulate in these areas. And there are, as you know, there are
    First Amendment issues that would arise if we tried to regulate
    aggressive marketing. We have, through enforcement efforts,
    such as our recent case against Phusion, taken action against
    marketers who are marketing to children. One of the counts in
    the Phusion complaint was a count alleging that Phusion, which
    is the seller of FourLoko, which is an alcohol product, used
    images plainly of kids, people under the legal age, in order to
    promote alcohol.
        Mrs. Capps. Right. I know I am going over time now, but I
    would--saying that there are differences between alcohol and
    food, there also is a close parallel for how the agencies
    provided a framework when voluntary industry-based efforts were
    not adequately addressing a vital public health problem. There
    isn't anything extreme in this document on marketing to kids.
    It may not be perfect, but I believe it is clearly the next
    sensible step to take.
        And in closing, Mr. Chairman, I would like to submit
    testimony submitted by Mars for the record. I believe this
    document may have identified areas that I hope we can use to
    form a common ground. I yield back.
        Mr. Pitts. The Chair thanks the gentlelady, and the
    gentlelady's unanimous consent request to include in the
    hearing record a statement of Mars. I also have four other
    items, a letter to HHS, FTC, Department of Agriculture, and
    CDCP from Members of Congress, led by Eric Paulsen of Minnesota
    from October 11, 2001; statement from the American Bakers
    Association; testimony from the President and CEO of American
    Frozen Food Institute; and a statement of the American Frozen
    Food Institute to the FTC. Without objection, both sides have
    seen these, without objection these will be included in the
    record.
        [The information follows:]
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        Mr. Pitts. And now the Chair recognizes the gentleman from
    Mississippi, Mr. Harper, for 5 minutes.
        Mr. Harper. Thank you, Mr. Chairman, and thank each of you
    for being here. And as I look at this, and Dr. Dietz, your
    opening statement and remarks, and looking at your report, you
    know, you have a statement here that says not only does obesity
    increase the likelihood of a child developing those serious
    physical issues, you also said but it also may lead to severe
    psychological and social problems, such as absenteeism from
    school, discrimination, victimization, and poor self-esteem. So
    I just wonder what you are doing here for the skinny kids like
    me. You know, I was 6-5 and 160 pounds. Now, I got a little,
    you know, I added a little. By the time I got married I was
    165. So you know, I did beef up some during that time. But you
    know, when you are a skinny kid, particularly going into young
    adulthood, and you have to have a suit--back in that day you
    had two choices. You could get navy blue, or really dark navy
    blue. I mean that was pretty much your choice. So as you look
    at this, you know, every child is different. But it appears
    that your report is focusing more on obesity. And I understand
    the physical reasons for that. But tell me exactly what was the
    charge or the task that was given the IWG? What was the
    verbiage for that?
        Mr. Dietz. I will just jump to the directive. The working
    group is directed to conduct a study and develop
    recommendations for standards for the marketing of food when
    such marketing targets children who are 17 years or younger or
    when such food represents a significant component of the diets
    of children. In developing such standards, the working group is
    directed to consider positive and negative contributions of
    nutrients, ingredients, and food, including calories, portion
    size, saturated fat, trans fat, sodium, added sugars, and the
    presence of nutrients, fruits, vegetables, and whole grains, to
    the diets of children; and secondly, evidence concerning the
    role of consumption of nutrients, ingredients, and foods in
    preventing or promoting the development of obesity among such
    children.
        Do you want----
        Mr. Harper. Sure. That is fine. Now, you know, one of the
    things, one of the proposals, and I want to make sure I have
    got this right, one of the proposals is it would eliminate
    sports figures and also animals from boxes. That is correct on
    what the recommendation is?
        Mr. Vladeck. In our proposed draft there is a discussion
    about that. As I tried to signal in my written testimony, and
    in my oral statement today, my sense is that we are moving away
    from that.
        Mr. Harper. OK. And would it be your personal
    recommendation that you move away from that?
        Mr. Vladeck. Yes.
        Mr. Harper. And what about you, Dr. Post?
        Mr. Post. We are in agreement, yes.
        Mr. Harper. OK. Dr. Dietz? OK. Well, that is--you know, as
    we look at the correlation you were talking about, Mr. Vladeck,
    about television and obesity, each of you have heard this, you
    know, is it because--is the obesity connection for television
    because of the advertising or the sheer number of hours that a
    child will sit in front of the television to watch?
        Mr. Dietz. Well, certainly inactivity is a contributor. And
    as time has gone on, we have been more and more concerned about
    screen time, because it is not limited to television time. The
    data we have, though, is about television time, and the
    advertising on television, and the connection that that has to
    the consumption of foods advertised on television while
    watching television.
        Mr. Harper. So if it is related to the advertising of the
    food product, then you are saying that the child, who is a
    child, is the one who sets the standard for what the parent
    will buy at the store and not the parent?
        Mr. Dietz. Well, not always, but children have a huge
    influence on parental decision-making. And that is derived from
    the advertising that directs children to want products.
        Mr. Harper. We have all seen or experienced certainly, in
    aisle 6 the child pitches a fit, and it is easier to give in
    and put it in the basket than it is to be the parent and maybe
    not shop in the store with the child. So what is the average
    number of hours that your study shows that the typical child
    will spend watching television?
        Mr. Dietz. We have not done a recent study of that. My
    recollection is that on average it is 3 hours. It is variable
    by age. But I think on average--and there are significant
    ethnic disparities. African American children tend to watch
    more television.
        Mr. Harper. OK. Anybody else have different figures besides
    the 3 hours that you have heard or are familiar with? OK. And
    during that let's say a typical 3-hour period that a child is
    watching TV, they are inactive, obviously during that time.
        Mr. Dietz. Yes.
        Mr. Harper. During that 3-hour period, how many
    advertisements would typically be about a food item?
        Mr. Dietz. I think the majority of ads, and I can't
    remember, FTC has those numbers, I want to say 11. But I
    think--a Saturday morning is quite different than weekday.
        Mr. Vladeck. I think the average is somewhat lower than
    that, outside of the cartoon hours on Saturday morning.
        Mr. Harper. And I know my time is up, but it sure seems
    like we are trying to do these--and I know we have many things,
    many regulations that are well intended, and we certainly want
    people and kids to be healthy, but it seems to me that we are
    trying to do what the parent is supposed to be doing here, to
    have the responsibility for that self-discipline of the family
    and to do those things that need to be done. So we are in a
    situation where this doesn't mean that--we all want to see an
    end to childhood obesity, but this seems to be a farfetched
    approach, when what we should be doing is expecting the parents
    to do their job.
        With that, I yield back.
        Mr. Pitts. The Chair thanks the gentleman, and yields to
    the gentleman from New York, Mr. Towns, 5 minutes for
    questions.
        Mr. Towns. Thank you very much, Mr. Chairman. You know, I
    want to follow up on Mrs. Capps' question. Is it true that the
    IWG agencies do not have regulatory authority over food
    advertising to children?
        Mr. Vladeck. I think it would be very difficult for the
    Federal Trade Commission to issue regulations that had any
    binding effect in terms of marketing food to children. Our
    rulemaking authority is very limited in this area. We have
    enforcement authority, but it wouldn't extend to the kinds of
    issues that we are talking about today.
        Mr. Towns. Could you give me an example of your enforcement
    authority? Just a classic one, you know.
        Mr. Vladeck. Our authority is deception. It rests on a
    company committing a deceptive act or an unfair act. But here
    the only example I could come up with would be if, you know, if
    a company were making completely unsubstantiated claims about
    the beneficial health effects, selling, you know, lard covered
    in fat and making claims that this is going to improve your
    heart health or something like that. But our authority here,
    our regulatory authority and our enforcement authority is
    pretty limited. And even if it were not, regulating in this
    kind of area might raise First Amendment issues. And so one of
    the points that we tried to make repeatedly is there is nothing
    that isn't voluntary about the proposal. If industry decides
    not to adhere to it, then we spent a lot of time and we haven't
    accomplished very much.
        But it is up to the industry ultimately to decide whether
    it is going to abide by these standards.
        Mr. Towns. Why do the companies feel that it is not truly
    voluntary? Why do they feel that way?
        Mr. Vladeck. I don't know. If you look at--we have been
    doing this sort of work for quite some time. For example, we
    have, I think, submitted several reports to Congress making
    recommendations about media violence. The fact of the matter
    is, is that the industry, I think, has welcomed our role here.
    But some of the industry complies, some of it doesn't. We have
    never brought a case because not abiding by these standards
    doesn't fit the deception theories that we can rely on.
        The Supreme Court discussed our voluntary approach at
    length in a recent Supreme Court case, involving violent video
    games sold to children. So there is a long track record of the
    FTC engaged in this kind of voluntary self-regulatory guidance
    without any coercion from our part, without any enforcement
    from our part, without any collateral litigation being brought
    by third parties. So I am mystified by that claim.
        Mr. Towns. They are saying that these rules and regulations
    will bring about a job loss. I mean, what are your views on
    that?
        Mr. Vladeck. Well, there is one study which we find
    perplexing because it assumes that as a result of our voluntary
    standards, industry will stop advertising to children
    altogether and the loss to the economy will be $2 billion,
    which greatly exceeds the amount of advertising directly to
    children that we found in our most recent study. And that study
    goes on to conclude that there will be substantial job loss.
        We have had our economists look at the study. There are no
    citations in the study. So we don't know where these figures
    come from. But the figures don't match the industry's own data
    about how much it spends in advertising to children. So we do
    not understand that study and we certainly don't agree that a
    voluntary self-regulatory proposal is going to have that kind
    of a consequence on the economy.
        Mr. Towns. Thank you very much, Mr. Chairman. I yield back.
        Mr. Pitts. The Chair thanks the gentleman and recognizes
    the gentleman from Texas, Mr. Olson, for 5 minutes for
    questions.
        Mr. Olson. I thank the Chair. I would like to welcome the
    witnesses again and thank you for your time and expertise
    today. And my first question is going to be for you, Dr. Post.
        As I mentioned in my opening statement, hundreds of jobs in
    the district I represent and thousands in my home State of
    Texas involve the manufacture, sale, distribution, marketing of
    snack products, including wholesome and nutritious products.
    These products qualify as healthy under FDA regulations and are
    eligible under the Healthier U.S. School Challenge, a Federal
    nutrition program. I am referring to products like Sun Chips,
    Baked Lays Potato Crisps and Baked! Cheetos snacks, and yet the
    IWG draft proposal would deem them unacceptable. And to make
    things more confusing, my staff has told me that classic
    hummus, right here, as sold under the Sabra label, is not
    restricted but green olive hummus sold under the same label is
    restricted. Why is green olive hummus a threat to children's
    health and not classic hummus? Help me understand why there is
    such a disconnect between these Federal agencies?
        Mr. Post. Well, as I had mentioned earlier, we did in fact
    do analyses of food composition, the products that are commonly
    out there in the world of advertising. And our findings are
    products like the whole wheat bread and the other products,
    even the baked chips that you had there, would, in fact, be
    allowable under our structure. Some products, because of higher
    sodium contents, would fail. I mean, I imagine olives as a
    source of an ingredient in a food would be a problem. We were
    interested in following the Dietary Guidelines and, in that
    regard, we were looking for reductions in sodium, saturated
    fat, and certainly sugars as well. So, in some cases, the
    threshold couldn't be achieved. But there are certainly a lot
    of products that would be viable out there for marketing.
        Mr. Olson. Also with all due respect, we are talking about
    a lot of marketing. And look at the packages, exactly the same
    exact three words here, Greek olive hummus and classic hummus.
    Again, I appreciate what you are talking about--some of the
    sodium and what all this might add. But the fact here is we are
    talking about advertising. Those two products look the same to
    a kid, to an adult. And I think we have got to be careful here
    because again we can't--the responsibility ultimately rests
    with parents. And that to me in my mind is not some sort of
    danger to children's health. I mean, no child is going to look
    at that different packaging and say, ``Mom, I want that one
    because it is classic'' or ``Mom, I want that one because it
    has olives.''
        A question for you, Dr. Vladeck. I am troubled by your
    testimony today. In response to a question from my colleague,
    Mr. Shimkus from Illinois, regarding the FTC's role in
    recommending specific nutritional standards in the IWG process,
    you said that the Commission should and did defer to USDA's
    judgment given the subject matter and expertise on nutritional
    standards. Yet in a July 15, 2010, memo written at your request
    by attorneys in the Division of Advertising Practices at FTC--
    Mr. Chairman, I ask unanimous consent to put this memo in the
    record.
        Mr. Pitts. So ordered.
        [The information follows:]
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        Mr. Olson. Thank you, sir. Employees at the FTC expressed
    strong disagreement with the nutritional standards recommended
    by the USDA. In the memo, attorneys at your Commission delve
    into inherently scientific questions about nutrition, such as
    proper thresholds for sodium intake and the associated risks
    related to blood pressure in children. Commission employees
    also expressed concern with the saturated and trans fat levels
    recommended by USDA. This memo seems to contradict your
    assertion to Mr. Shimkus just a few minutes ago that FTC did
    not involve itself in nutritional aspects of the working group
    process. I find your juxtaposition of this letter and your
    statements troubling.
        Can you explain your assertion and the seemingly
    contradictory fact? I have got a copy of the memo if you need
    it, sir.
        Mr. Vladeck. I am aware of this memo. I think the thrust of
    this memo is that we were worried and these were--there were
    many drafts--as you know, this process is--we are in our second
    year of this process and we are not done. But what we were
    concerned about was one of the interim update USDA proposals
    may have cut back on industry's own self-regulatory efforts. If
    you look at page 3, what we were concerned about is that there
    was a USDA proposal that might actually be weaker than some of
    the industry self-regulatory guidelines. And that was a cause
    of concern to us. I would note that this is an internal FTC
    memo. I am not sure that this was shared with anyone other than
    within the FTC. And this is simply a memo to me suggesting that
    there may be concerns about the IWG process if we are going to
    undercut industry's own self-regulatory efforts.
        Mr. Olson. I appreciate that, sir. Again in your testimony
    to Mr. Shimkus, you said you defer to USDA's judgment about
    the----
        Mr. Vladeck. I said USDA, FTC and CDC, yes, sir.
        Mr. Olson. Yes, sir. Again, I don't believe this is a
    proper role for the FTC. I ran out of time. I thank you. Thank
    you, Mr. Chairman. I yield back.
        Mr. Pitts. The Chair thanks the gentleman. I recognize--
    just a minute. Do you have a problem with this? All right. We
    will reconsider a unanimous consent request if you want to take
    some more time to look at that. All right. Do you want to yield
    to Mr. Terry for 15 seconds? All right. We will recognize the
    gentleman from Nebraska.
        Mr. Terry. Thank you, Mr. Chairman. All I want to do is ask
    unanimous consent that I may place a statement into the record.
        Mr. Pitts. Without objection. He wants a unanimous consent
    request for a statement in the record. So ordered.
        [The prepared statement of Mr. Terry follows:]
        [GRAPHIC] [TIFF OMITTED] 77930.079

        Mr. Pitts. The Chair recognizes the gentleman from
    Louisiana, Dr. Cassidy, for 5 minutes.
        Mr. Cassidy. Gentlemen, I am a physician. I am totally
    aware of this issue and very much concerned. And thank you for
    your input. My questions are not to challenge. My questions are
    to understand. Dr. Post, what a great name for a guy from USDA
    talking about childhood nutrition. I see that the State of New
    York and other States had a proposal that would not allow sugar
    sweetened beverages to be purchased in the SNAP program. USDA
    would not allow this restriction saying there was no proof that
    decreasing sugar consumption would decrease the health in SNAP
    beneficiaries. Man, that just seems very kind of counter to the
    whole thrust of this discussion. Any comments on that?
        Mr. Post. That is an issue that is obviously very deeply
    being dealt with in the Food and Nutrition Service, our sister
    agency. And I haven't been part of the discussion regarding the
    SNAP program.
        Mr. Cassidy. I see that there is a correlation, at least in
    some studies, between SNAP participation and obesity. And, in
    fact, I am wondering if there was a regression analysis, some
    sort of statistical analysis that said, oK, what is the
    relative role of participation in SNAP versus the relative role
    of Tony the Tiger. And so I say that because I have read that
    there is a boom and bust type cycle with SNAP programs, that
    people get their SNAP benefits once monthly, they purchase a
    lot of goods and then they get them again the next month. You
    cannot purchase vegetables and fruit to keep them for the whole
    month. We are effectively saying go out and buy high caloric
    stuff at stores. Do we really know that we have met the enemy
    and the enemy is SNAP?
        Mr. Post. A response to that is that we aren't aware of any
    evidence, convincing evidence, that establishes SNAP
    participation or participation in other food nutrition
    assistance programs as the cause of overweight or obesity.
        Mr. Cassidy. Do you mean there is stronger evidence that
    kids watching commercials on Saturday morning are more likely
    to be obese than the SNAP program, which encourages the
    consumption--because I have seen evidence that people on SNAP
    don't buy more fruits and vegetables, but they do buy more
    calorie dense foods.
        Mr. Post. Well, with regard to the evidence on nutrition
    assistance programs, including SNAP, the evidence that exists
    is in fact mixed and that while some studies have shown an
    association between participation and certain of these programs
    and higher weights for some groups of participants, others have
    found no association. So none have, in fact, shown a causal
    relationship.
        Mr. Cassidy. And so you are saying that, you are
    emphasizing causal relationship. Again, have we seen a causal
    relationship between advertising to children and not just an
    association but causal association between advertising to
    children and increased obesity?
        Mr. Post. Well, I will defer to the CDC, but I will say
    that there is certainly a contributing factor there. Perhaps
    not a causal relationship, but certainly a contributing factor.
        Mr. Cassidy. The difference between a causal and just being
    associated.
        Dr. Dietz.
        Mr. Dietz. Now, the whole debate about causality of obesity
    is complicated. And I tend to focus more on what can be done
    about obesity than emphasizing another longitudinal study
    trying to control for all of the factors which affect it. What
    we do know about obesity is that one of the most powerful
    interventions is reductions in television time.
        Mr. Cassidy. Now, you say that, but I was wondering we
    don't necessarily know that reductions in TV are not
    associated. Is that a secular thing or does it actually
    influence other things?
        Mr. Dietz. Sir, these are randomized clinical trials.
        Mr. Cassidy. So if you have somebody who is watching more
    TV, is she or he more likely to be in an area which is a food
    desert, an area in which the built environment is less
    conducive to getting out and walking or in families which have
    more children and perhaps mom is using TV to baby sit?
        Mr. Dietz. Now, those are sound questions. I don't think we
    know the relationship of television viewing to food deserts,
    for example. We do know that there is a relationship between
    television viewing and neighborhood safety, that parents----
        Mr. Cassidy. Now, that in itself--because my wife will not
    let my children bicycle on our busy street. So clearly built
    environment figures. Do we really not--as I was listening, I
    kept on thinking, man, I bet you TV watching correlates with
    lack of an appropriate environment for a child to exercise
    without mama's supervision.
        Mr. Dietz. There have been some studies that confirm that.
    I don't think it accounts for all the television viewing that
    is going on.
        Mr. Cassidy. I accept that, but on the other hand we are
    making the case for these rules based upon something which may
    have an alternative explanation. Is that a fair statement?
        Mr. Dietz. First, these are not rules. They are voluntary
    proposals.
        Mr. Cassidy. I am sorry. You are right. I apologize.
        Mr. Dietz. And you are right. I think we still need more
    data on factors that affect obesity and most importantly on how
    to resolve it.
        Mr. Cassidy. Again, gentlemen, I am not saying all of this
    to challenge, but rather to understand better.
        Thank you for your participation. I yield back.
        Mr. Pitts. The Chair thanks the gentleman and recognizes
    the vice chairman of the health subcommittee, Dr. Burgess, for
    5 minutes of questions.
        Mr. Burgess. Thank you, Mr. Chairman. Can we just continue
    on that concept for a moment, both Dr. Post and Dr. Dietz? It
    does seem like the focus now is regulating the end product.
    Have we sufficiently studied the issue of lack of access to
    healthy foods? And I know in part of the district that I
    represent, I am dealing with the problem of food deserts. And
    it seems like that is a more appropriate place to start, the
    access to healthy foods rather than some of the voluntary
    guidelines that are being talked about this morning. Do you
    have any thoughts on that?
        Mr. Dietz. It is true that food deserts are a significant
    problem that impair the intake of the healthful diet. We were
    not asked to look at the impact of food deserts on food intake.
    We were asked to look at the effect of food marketing.
        Mr. Burgess. Not meaning to interrupt, but you still in
    your testimony you talk about the disproportionate impact on
    minorities and lower socioeconomic status. And certainly in the
    areas that I am thinking about at home, I mean, your only
    option for nutrition is a convenience store. And not being
    derogatory to convenience stores--I use them all the time
    myself. But if that is your only option, it is tough to get a
    head of lettuce when all you have got is a Twinkie display. Do
    you know what I mean?
        Mr. Dietz. No question about it.
        Mr. Burgess. Again, I would just ask the question. Would we
    be better focusing our efforts in a time of limited budgets,
    should we try to fix that problem first before we go into this
    direction?
        Mr. Dietz. Well, I think those efforts are underway. As I
    said earlier, I think we need a multi-component, multi-sectoral
    approach. As I am sure you are aware, there is the Healthy Food
    Financing Initiative which has allocated substantial sums of
    money for the development of grocery stores and other retail
    changes in food deserts or areas with limited access to food. I
    think that is an important step forward. Unfortunately, we
    don't know what the impact of that intervention will be on
    obesity rates.
        Mr. Burgess. I guess, Dr. Dietz, let me stay with you. I
    mean, you referenced a moment ago in your discussion with Dr.
    Cassidy that the causality of childhood obesity is complicated
    and multi-factorial and multi-faceted and I may have some words
    there to your discussion. But nevertheless, it is a complicated
    issue. So do you have available and can you provide us--has the
    CDC compiled a compendium of articles and data and data
    collections on the scientific basis for the conclusion that
    banning food advertising will promote public health? What is
    the precise scientific basis for the conclusions of the working
    group that banning food advertising will promote public health?
        Mr. Dietz. We are not talking about banning food
    advertising. We are talking about modifying food advertising
    directed at children.
        Mr. Burgess. Beauty is in the eye of the beholder. Some
    people would say your modification results in a ban. But oK.
    Fair enough. But you were really not even asked to provide
    guidelines, but you kind of did, didn't you?
        Mr. Dietz. Well, we were very careful not to call them
    guidelines. What we called them were principles.
        Mr. Burgess. Look, we don't call income relating means
    testing, but everybody knows that it is. So were these
    guidelines or not?
        Mr. Dietz. No. I think they were principles.
        Mr. Burgess. Very well. On the principles then that you
    developed, can you provide us with the precise scientific basis
    for the conclusions detailing those principles?
        Mr. Dietz. Yes. I think Rob reviewed the data sets that we
    analyzed.
        Mr. Burgess. And I apologize for not being here. But
    perhaps if the CDC has that available. I know you guys compile
    a lot of data. Maybe you would be able to do that for us.
        Mr. Dietz. We have referenced those studies in our
    testimony. I think all three of us have done so. But if you
    would like additional information, we would be happy to provide
    it.
        Mr. Burgess. I think that would be helpful to the overall
    direction of where this committee is going. And again, just
    like Dr. Cassidy, I am not trying to be confrontational. We
    appreciate all of you making time to be available to us here on
    the committee this morning. But at the same time, these are
    issues that have significant impact and import. And I
    appreciate the fact that there is work being done on providing
    for areas of food deserts, but I have got to tell you I am not
    seeing the results. I am not seeing the activity. So if the CDC
    is doing that, I am grateful and I welcome your participation.
    But in some parts of the world it is not happening. And the
    difficulty is these are parts of the world that are otherwise
    affluent. The surrounding communities you would drive through
    and say, ``Nothing to see here, let us keep moving.'' But the
    reality is you have got pockets of poverty within these
    relative areas of affluence that are significant and of course
    they have been hurt harder by the recession than the
    surrounding communities.
        Mr. Chairman, I thank you for your indulgence. I will yield
    back the balance of my time.
        Mr. Pitts. The Chair thanks the gentleman and recognizes
    the gentleman from Illinois, Mr. Kinzinger, for 5 minutes for
    questions.
        Mr. Kinzinger. Thank you, Mr. Chairman. I guess this will
    go to all three, but Director Vladeck first and Dr. Post
    second. In a fiscal climate where every dollar is precious, we
    do have to be focused on protecting jobs and we have to be
    focused on our economy. That is where the real concern is right
    now. But it appears that the IWG has completely disregarded any
    attempt to find out an economic impact that any kind of a ban
    or suggestion or whatever would have on this. The reality is
    the food and beverage industry employs 1.4 million workers, 12
    percent of our manufacturing workforce, and it is one of the
    biggest sources of manufacturing jobs.
        Now, you said you didn't consider the economic impact or
    benefits when creating these guidelines. Is that true, there
    were no economic benefits taken into account?
        Mr. Vladeck. We did solicit questions in our comments. And
    we expected if there were economic objections to get them in
    our comments. That was not the focus.
        Mr. Kinzinger. You got zero comments of anybody that was
    concerned about the economic impact?
        Mr. Vladeck. No. I am not saying that. We did get submitted
    a study which we gave to our economists to take a look at. The
    study purported to be based on advertising expenses for ads
    geared at children. And the economic analysis posited that if
    our voluntary guidelines, principles were adopted by industry,
    it would essentially end all advertising to children, costing
    about $2 billion in expenditures a year.
        Mr. Kinzinger. And specifically, what about jobs? What
    about jobs----
        Mr. Vladeck. I think it concluded ultimately that there
    would be a loss of 74,000 jobs. Our concern is--we have many
    concerns, one of which is there is no underlying data, there
    are no citations to any of the assertions made in the study.
    But more problematic, it assumes that advertising to kids will
    stop and it uses a figure for advertising expenditures that
    greatly exceed what industry tells us it is spending.
        Mr. Kinzinger. Your study says 74,000 jobs it costs but you
    don't have the basis of probably not actually the case?
        Mr. Vladeck. It is not our study.
        Mr. Kinzinger. The study that you have seen that we are
    talking about.
        Mr. Vladeck. I mentioned the comments. I was explaining
    that in connection with the comments this study was submitted.
    But more importantly, as I tried to make clear before, industry
    itself has proposed quite substantial changes in its own self-
    regulatory proposal, bringing it very close to where we are
    likely to end up. Industry is not proposing making these
    changes if it thinks it is going to cost it money, revenue or
    jobs. And so I understand your concern about----
        Mr. Kinzinger. Yes, it is a big concern. I mean, you have a
    lot of people that want jobs out there. And when you talk about
    killing jobs from the government perspective, that is not a
    good way to get on the right train of creating jobs.
        Mr. Vladeck. We agree.
        Mr. Kinzinger. I appreciate that.
        Mr. Vladeck. But voluntary standards don't kill jobs.
        Mr. Kinzinger. Let me ask another one. You contend that
    these restrictions are voluntary, but some of the most
    distinguished scholars of the Constitution argue that these
    would violate the First Amendment, these voluntary proposals.
    Do you believe the food and beverage industries will treat
    these restrictions or principles, or mild hints or general
    reminders, do you believe they will consider them rules, they
    will count them as rules? I mean, do you think that they will?
    Either of you.
        Mr. Vladeck. I don't. They are not enforceable in any
    respect.
        Mr. Kinzinger. But if they are not rules and they are not
    enforceable, then why even go through the trouble of creating
    them in the first place?
        Mr. Vladeck. Well, because Congress told us to issue----
        Mr. Kinzinger. Well, we also wanted a report, right, that
    we are still waiting on?
        Mr. Vladeck. That is correct.
        Mr. Kinzinger. Do you expect that any time within the next
    few whatever that we are going to see the report that we
    actually requested?
        Mr. Vladeck. We are hoping to get you a report by the end
    of this year.
        Mr. Kinzinger. So we are able to get some of these
    guidelines out, but the report we will hold off--we are hoping
    we will have by the end of the year?
        Mr. Vladeck. The report will constitute our--what we are
    calling principles, guidelines.
        Mr. Kinzinger. Gentle suggestions may be the new word. All
    right. Thank you. And I yield back.
        Mr. Pitts. The gentleman yields back. The Chair thanks the
    gentleman and recognizes the gentleman from Kansas, Mr. Pompeo,
    for 5 minutes for questions.
        Mr. Pompeo. Thank you, Mr. Chairman. Thank you all for your
    time today. It has been a long morning for you all. It started
    with Mr. Waxman saying he was mystified by the fact that we are
    holding this hearing. That is maybe one of the first things I
    have agreed with Mr. Waxman on in my 9 months in Congress. I am
    mystified, too. I am mystified that the Federal Government
    believes that it can identify a problem, childhood obesity. And
    I think everyone here has agreed that there is a challenge,
    there are health risks, but think that the Federal Government
    has got a solution and that we can get so detailed and we can
    spend hours talking about these things and that the Federal
    Government can solve this problem with a set of principles out
    in the air. I am deeply troubled by that fact. I know you would
    use the defense of Congress made me do it, but I will tell you
    that was a previous Congress. And I hope this one will
    reconsider that.
        Having said that, Mr. Vladeck, I wanted to talk to you
    about your notion of voluntary. You continue to say that the
    industry came up with a set of principles that are very close
    to where you are going to be. Don't you think that is at least
    in part because they are afraid of you?
        Mr. Vladeck. I assume it is because they think it is the
    right thing to do.
        Mr. Pompeo. Right, right. Because they are afraid that the
    Federal Government is going to come put a more onerous set of
    restrictions and it is often the case the industry will respond
    by trying to move close enough that they can convince
    regulators like you that they have been good citizens. So it
    may well not be the profit motive that drove them but the fear
    of regulation that drove them to do it.
        Mr. Vladeck. I would disagree. We have voluntary standards,
    for example, for media violence, violent video games, movies.
    Industry has adhered to some and has not adhered at all to
    others. We have no enforcement role in that space. The
    voluntary principles that we articulated were done pursuant to
    a congressional mandate just like the congressional mandate
    here. No one has suggested they have a coercive effect. I think
    one of the things that we need to look at----
        Mr. Pompeo. Until just this moment I suppose. I just
    suggested that. So one person----
        Mr. Vladeck. I apologize. I didn't mean to put it that way.
    I was talking about the media. I understand that you suggested
    it. But two other quick points. One is this is an area in which
    we have very limited regulatory authority. So the idea that we
    could turn around tomorrow and take these principles and codify
    them in a binding--you know, in a binding regulation, there is
    no basis for that concern even though--you know, I know
    Kathleen Sullivan, I know Marty Redish, the First Amendment
    scholars. I have litigated in this area extensively. I have
    argued commercial speech cases before the Supreme Court. I know
    this area of law. It takes a law, a statute, a regulation or
    some other practice that is the force of law to create a
    restraint or to create coercion. And it is not there.
        Mr. Pompeo. I appreciate that. Would you commit today to
    filing a friend of the court brief in defense of the industry
    if someone should choose to sue on this matter, saying that the
    principles we put forth provide no basis for it on behalf of
    the FTC?
        Mr. Vladeck. I don't have that discretion on my own.
        Mr. Pompeo. Would you recommend to the FTC that they would
    do that?
        Mr. Vladeck. I will commit to putting something if we can
    persuade our colleague agencies to say that in the final report
    that this is not intended to create binding legal standards and
    should not be the basis of something along those lines, which
    should signal quite clearly our view that industry has no legal
    obligation to follow.
        Mr. Pompeo. I appreciate that. Yes, thank you. This is a
    question for all three of you and then I will be complete. Have
    we seen any examples in other countries where this type of
    principle or guideline has been effective at changing behavior
    and improving health conditions in children?
        Mr. Dietz. I am sorry. I don't have any of that data at my
    finger tips.
        Mr. Post. And we are aware that other countries have these
    kinds of voluntary standards, organizations in other countries
    do. Whether they are successful on their own, no. This is a
    complex issue. So it is part of the puzzle.
        Mr. Pompeo. Great. Thank you. I yield back the balance of
    my time, Mr. Chairman.
        Mr. Pitts. The Chair thanks the gentleman and recognizes
    the gentleman from Pennsylvania, Dr. Murphy, 5 minutes for
    questions.
        Mr. Murphy. Morning, gentlemen. I am all the way over here.
    Good to be with you. Just a little background. I am also a
    psychologist. I have dealt a lot with obese kids over the years
    and I maintain a faculty appointment with the University of
    Pittsburgh School of Medicine in pediatrics. So I appreciate
    your concerns about youth here.
        I am thinking as I am hearing all of this, I don't know how
    we survive because a typical menu some of you may have had may
    have been similar to mine. I can still recall that we would
    have meatloaf, fish sticks, canned vegetables, canned fruit
    cocktails, fried chicken, Campbell's tomato soup and that
    wonderful thing that cures all ills, that Velveeta sandwich on
    white bread. I don't know how we survived. And yet the CDC has
    this great map on your Website which shows obesity rates
    changing over time. It seems to me there are some big
    differences here. I just want to make sure as you prepare some
    reports on this that you are looking at the full breadth of
    what I think is making a huge difference here. I am also noting
    as these guidelines on marketing come by, I am looking at this
    Website here that has some things in there which sounds like it
    may be one of those things I just want to make sure we are not
    going after in terms of attacks.
        You know what Tagalongs are? Does anyone know what those
    are? Tagalongs? They are Girl Scout cookies. My favorite. Now,
    the serving size unfortunately is 2 and I think most kids would
    say I would rather have 8 or 10 or 12. And I am concerned. I
    want to make sure we are not going to attack those poor Girl
    Scouts on the box cover there as well. Because the issue here--
    I want to make sure we are broadening this.
        And, Dr. Dietz, I think you brought it up about the
    television time. I think you would agree it is not television.
    It is what they are doing instead of television, that years ago
    it was not just what we ate but what we did when we were not
    eating. Perhaps some of you also grew up in an area where your
    parents told you in the morning get out of the house, play all
    day; if you come in here, I am going to put a vacuum cleaner in
    your hand, you are going to wash windows, you are going to do
    something else. Kids were very active and now they are not.
        What I am concerned about here in guidelines coming forth--
    and I am doing this more as recommendations than I want your
    comments. Are any of your familiar with the Naperville School
    District? Their program is pretty exemplary and one which I
    hope at some time we can even bring someone in to talk about
    that from the school district. They actually spend less per
    student in expenses than some other school districts in
    Illinois, but they require an hour of vigorous activity,
    elevated heart rate every day. And in turn, these students
    actually exceed many other countries and many other Asian
    countries on transit international mathematics and science
    studies, reading tests, et cetera, and obesity rates where as
    nationwide is--we are approaching about 30 percent, nationwide
    obesity rate? They are, like, 3 percent. How much is it in
    children?
        Mr. Dietz. 17 percent.
        Mr. Murphy. 17 percent in children. But they have--97
    percent of eighth graders turn out very bright and a very small
    percent of them have obesity rates. So as you are talking about
    these guidelines and as we are looking at marketing, I would
    like to know what your thoughts are in terms of--the big
    culprit here is also immobility, lack of activity, dealing with
    thumb movements on gaming or dealing with clicking things on
    the Internet. It is not activity. But I would like you to
    comment on marketing of those issues too as a key ingredient of
    burning off calories and getting healthy nutrition. Could each
    one of you going through that, starting with you, Dr. Dietz?
        Mr. Dietz. I couldn't agree with you more about the
    importance of activity and equally importantly the
    contributions of inactivity. And certainly physical activity is
    a strategy to be encouraged not only because it helps weight
    control but also because it reduces the co-morbidities
    associated with obesity. And I have known about Naperville for
    a long time. And it is a model. I have worried that it is
    confounded by income and socioeconomic status and perhaps other
    factors. I would love to know whether kids walk to school in
    Naperville because they don't in most parts of the country. And
    we have certainly eliminated physical activity as part of a
    child's daily behavior in life.
        Mr. Murphy. I have got a few seconds, but I want to hear
    from each person. Next. Dr. Post.
        Mr. Post. I think this comes back to this being a very
    complex issue. We are totally supportive of ensuring that we
    empower people with information: kids in schools, where we
    learn, where we play, where we get fitness, certainly in health
    care settings. So I think we can look at all of the solutions
    being part of a multi-sectoral effort. And certainly
    advertising is one way we can deal with this, certainly also
    enhancing school meals. And there are a lot of other
    opportunities that are working----
        Mr. Murphy. Dr. Vladeck.
        Mr. Vladeck. We agree, this is a complex issue and physical
    activity is one important step in the right direction.
        Mr. Murphy. Well, I would venture to say I think it is of
    critical importance. It is not something that should be a
    postscript to this, but one I think that is absolutely
    essential. And I think we are going down the wrong road of
    going after advertising with regard to food if we are not doing
    other things. One of the companies in my district is Dick's
    Sporting Goods. I venture to say they do more to reduce
    childhood obesity than some of these other things to deal with
    some advertising of some foods that we will be doing. So I hope
    that is something that you all include in your report right up
    front. It is extremely important. And this is something that I
    hope this committee takes into account in the future too, Mr.
    Chairman.
        With that, I yield back.
        Mr. Pitts. The Chair thanks the gentleman. The ranking
    member has a unanimous consent request.
        Mr. Pallone. Thank you, Mr. Chairman. I ask unanimous
    consent to enter into the record an open letter on the First
    Amendment and the Interagency Working Group principles. This is
    from various constitutional law professors from around the
    country, and I believe you have it.
        Mr. Pitts. We have it. Without objection, so ordered.
        Mr. Pallone. Thank you.
        [The information follows:]
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        Mr. Pitts. That concludes the questioning for our first
    panel. And the Chair thanks the witnesses for your testimony,
    for your responses. And we will dismiss the first panel and
    call the second panel to the witness table. While the staff is
    setting up the table, we will suspend for 5 minutes.
        [Recess.]
        Mr. Pitts. The subcommittees will come to order. And I will
    introduce the second panel at this time. Our second panel
    consists of seven witnesses. Our first witness is Jim Baughman,
    Senior Marketing Counsel for the Campbell Soup Company. Next is
    Dan Jaffe, Executive Vice President for the Association of
    National Advertisers. Our third witness is Elaine Kolish, Vice
    President and Director of the Children's Food and Beverage
    Advertising Initiative. Our fourth witness is Beth Johnson,
    Principal and Founder of Food Directions. Next we will hear
    from Margo Wootan, the Director of Nutrition Policy at the
    Center for Science in the Public Interest. We also have Dale
    Kunkel, a Professor of Communication from the University of
    Arizona. And finally Dr. John Irons, Research and Policy
    Director at the Economic Policy Institute.
        Thank you all for coming. We have your prepared statements.
    They will be entered into the written record. We ask that you
    summarize in 5 minutes your opening statement.
        Mr. Baughman, you are recognized to summarize your
    testimony.

    STATEMENTS OF JIM BAUGHMAN, SENIOR MARKETING COUNSEL, CAMPBELL
       SOUP COMPANY; DANIEL L. JAFFE, EXECUTIVE VICE PRESIDENT,
      ASSOCIATION OF NATIONAL ADVERTISERS; ELAINE D. KOLISH, VICE
         PRESIDENT AND DIRECTOR, CHILDREN'S FOOD AND BEVERAGE
      ADVERTISING INITIATIVE, COUNCIL OF BETTER BUSINESS BUREAUS;
      BETH JOHNSON, PRINCIPAL, FOOD DIRECTIONS LLC, ON BEHALF OF
     GROCERY MANUFACTURERS ASSOCIATION; MARGO G. WOOTAN, DIRECTOR,
     NUTRITION POLICY, CENTER FOR SCIENCE IN THE PUBLIC INTEREST;
        DALE KUNKEL, PROFESSOR OF COMMUNICATION, DEPARTMENT OF
       COMMUNICATION, UNIVERSITY OF ARIZONA; AND JOHN S. IRONS,
        RESEARCH AND POLICY DIRECTOR, ECONOMIC POLICY INSTITUTE

                       STATEMENT OF JIM BAUGHMAN

        Mr. Baughman. Good morning and thank you, Mr. Chairman, Mr.
    Pallone. My name is Jim Baughman. I am Senior Marketing Counsel
    for Campbell Soup Company, and I very much appreciate the
    opportunity to speak with you today about just some of the
    concerns we have with the Interagency Working Group's proposal
    to define marketing to children and to adolescents and then to
    lay out the nutrition criteria for products that are promoted
    in ways that meet those definitions.
        Our biggest concern is that the proposal loses sight of
    what we believe is the national priority on which we should be
    focusing childhood obesity. Cracking obesity is the key to
    diet-related conditions such as heart disease and diabetes. As
    the only corporation in America having an executive devoted to
    childhood hunger and obesity, we are fully committed to that
    priority. By taking their eye off obesity, the agencies have
    proposed criteria that, for example, not only fail to address
    calories, but would discourage the promotion of soup, a food
    associated with managing weight.
        But why are the agencies discouraging people from eating a
    food that isn't related to obesity? The essential reason is
    that the agencies have been focused on idealized foods, rather
    than on foods parents will actually include in the family meal
    plan. Moms look for foods that kids will eat and parents will
    enjoy too. And, yes, there are men and women in every food
    company who roll up their sleeves and figure out how to make
    actual foods that taste really good, have a pleasing texture--
    that is not just a kid's concern--that won't spoil as soon as
    you get them home, won't cost an arm and a leg and will provide
    good nutrition.
        The problem is that the IWG nutrition criteria are simply
    not realistic when it comes to making great tasting food. For
    example, while calling for more whole grain content than can
    readily be put in baked products for kids, they call for
    reducing the very things that help kids find whole grain
    products good to eat, a little salt and sugar to help with
    texture and to reduce that little bit of a bitter taste that
    kids can find objectionable.
        It is all in the power of definition. Advocacy
    organizations have been telling you and anyone who will listen
    that practically all we make and sell are unhealthy foods. But
    healthy and unhealthy have to be defined. When Campbell calls
    something healthy, we follow the FDA and the USDA requirements
    for using that term. For example, we only market healthy soups
    and healthy canned pasta to kids. The IWG proposal uses
    definitions that are, in fact, inconsistent with the government
    standards. For example, when it comes to sodium, they impose a
    requirement that foods contain about one-fourth the level that
    is in the healthy definition, an amount in foods that are
    already not enjoyed by everyone. To produce foods to
    definitions that are even less tolerant of salt and sugar and
    fat would discourage people from eating the healthy foods they
    are now enjoying and it would discourage food makers from even
    trying.
        We are told that we should not complain about the agency's
    proposal because it is voluntary and just a suggestion. That is
    not how it feels from here. These four agencies are the
    agencies that regulate our business, that have the power to
    shut us down, that look hard at everything we do and say. They
    are not advisers to the food industry. What they say in their
    official capacities matters. If adopted, these so-called
    voluntary principles will certainly evolve in that dimension.
    Even now, Senator Tom Harkin has introduced legislation laying
    the groundwork to make them binding in S. 174.
        We are all impatient to see some results in our national
    struggle with childhood obesity. And in that impatience, it is
    important to not put obstacles in the path of helping real
    people and real families eat better. Creating nutrition
    standards and marketing definitions that would put what we
    decide to call healthy food out of the reach of most people's
    taste buds and wallets will not help us eat better and manage
    our weight as a nation. It is a different kind of leadership we
    need from our government, leadership in partnering with
    stakeholders to educate the Nation in how to eat and live in a
    way that will better promote our health and leadership in
    promoting scientific research to better understand what
    practical tools may help reverse the incidence of childhood
    obesity.
        Thank you.
        [The prepared statement of Mr. Baughman follows:]
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        Mr. Pitts. The Chair thanks the gentleman and recognizes
    Mr. Jaffe for 5 minutes.

                      STATEMENT OF DANIEL L. JAFFE

        Mr. Jaffe. Good afternoon. So again I would like to thank
    Chairwoman Bono Mack, Chairman Pitts, Congressman Pallone and
    the other members of the subcommittees for this opportunity to
    testify. I am Dan Jaffe, Executive Vice President of the
    Association of National Advertisers. And our membership
    includes 400 companies with 10,000 brands that collectively
    spend over $250 billion in marketing and advertising annually
    in the U.S.
        ANA strongly opposes the proposed IWG guidelines. These are
    unprecedented extreme proposals with far reaching implications
    for individual companies and our Nation's economy. The IWG's
    proposed guidelines defy common sense and are inconsistent with
    other Federal nutrition standards. They are not well-founded or
    likely to reduce childhood obesity.
        You have heard a great deal about childhood obesity
    throughout this hearing. But there is no words in the report
    that you have received, in the preliminary report that in any
    ways discusses how the various proposals if followed would have
    an impact on obesity. These guidelines need to be formally
    withdrawn and returned to the drawing board.
        The IWG in effect is attempting to reengineer the American
    diet by declaring war on many healthy products, including whole
    wheat bread, 2 percent milk, cereals, yogurt, oatmeal and
    literally thousands of other healthy products. Again you have
    heard this questioned, but when we have had this study by our
    experts and then talked to our company members, they all
    confirmed that this is the truth.
        Of the 100 most popular foods consumed in America, only 12
    could be advertised under the IWG standards. And you say, well,
    that is your claim, but the IWG in its own report on page 5
    admits that, quote, a large percentage of food products
    currently in the marketplace would not meet the IWG principles,
    which I think really answers the question pretty definitively
    when they admit that they are wiping out most products in the
    marketplace.
        The Federal Government seems to be suffering from a severe
    split personality when it comes to nutrition standards. The IWG
    proposals are dramatically inconsistent with other Federal
    nutrition standards. They do not match the standards set forth
    in the School Lunch Program. They could not match the
    Department of Agriculture's dietary guidelines issues just last
    year. They do not match the WIC, Women, Infants and Children
    Program.
        This defies common sense. Foods that meet the Federal
    Government's stringent criteria for being labeled healthy both
    by the USDA and by the FDA should be advertised more, but the
    IWG says that they should not be advertised at all. In his
    Executive order issued in January, the President required
    Federal agencies to consider the costs and benefits of any
    regulation. It does not appear that the IWG involved here have
    ever considered these impacts. Lost jobs and lost sales are
    certainly likely outcomes of the proposal.
        The noted economic firm, his Global Insight, analyzed the
    IWG proposal using a macroeconomic model developed--and I
    emphasize this--by Nobel Laureate in economics, Dr. Lawrence
    Klein. They estimate that the guidelines, if acceded to, could
    drive down food and beverage advertising expenditures
    substantially. These reduced expenditures would result they
    claim in a decreased in total annual sales of $28.3 billion and
    elimination of 74,000 jobs. This has already been argued about
    in this hearing, and we will hear from another witness
    questioning that. But the facts are that there is nothing in
    the report on the costs or benefits. So how is the Congress
    going to determine who is telling the truth and who is stating
    things that are not accurate?
        The IWG proposal is a veritable Sword of Damocles hanging
    over the head of industry while avoiding the requirements of
    cost-benefit analysis that any sweeping proposal such as this
    should require.
        Two of our country's leading constitutional scholars,
    Professors Martin Redish, Northwestern University Law School,
    and Kathleen Sullivan, former Dean of the Stanford University
    Law School, analyzed the IWG proposals and found them to be a
    thinly disguised attempt at backdoor regulation.
        The four agencies were specifically directed to conduct a
    study and make recommendations to Congress concerning nutrition
    standards and their impact on childhood obesity. So far, the
    IWG has produced no study. And instead of reporting to
    Congress, they issued a specific, highly technical performance
    mandate with an implementation timetable. Worst of all, there
    is absolutely no proof or discussion about how the massive
    changes called for in the proposal which would cost multi-
    billions of dollars just in reformulations would have any
    direct impact on reducing childhood obesity rates if they were
    all carried out.
        We believe it is critical that before any final report is
    issued by the IWG, that the Congress demand at the very least,
    two key things: A complete cost-benefit analysis and a specific
    demonstration on how any proposed changes will directly impact
    childhood obesity rates. This is what the Congress called on
    the IWG to do and what they still have not even attempted to
    provide.
        Thank you again for giving me this opportunity to speak to
    you today.
        [The prepared statement of Mr. Jaffe follows:]
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        Mr. Pitts. The Chair thanks the gentleman and recognizes
    Ms. Kolish for 5 minutes.

                     STATEMENT OF ELAINE D. KOLISH

        Ms. Kolish. Thank you, Mr. Chairman, Madam Chairwoman,
    members of the committee. I am delighted to be able to
    participate today, and I would like to make three points.
        First, self-regulation through the Children's Food and
    Beverage Advertising Initiative is steadily improving the foods
    in child directed advertising. Our participants, 17 of the
    Nation's leading food companies, represent the vast majority of
    child-directed advertising. By using meaningful nutrition
    criteria, they have shifted the emphasis of their advertising
    to children to foods that are substantially lower in total
    calories, lower in fats, salt and added sugars and higher in
    nutrient content, just as the Institute of Medicine recommended
    in its 2006 report on food marketing.
        Indeed, many of the foods advertised to children today meet
    the FDA's definition of healthy foods. The companies have
    accomplished these product improvements by devoting vast
    amounts of time and by spending millions and millions of
    dollars. As a result, kids watching children's television
    programming regularly see ads for foods such as apples or
    applesauce or other fruits, milk, yogurt and veggies either as
    a part of a canned pasta dish or as part of a meal. And now
    more than ever, products are including whole grains or larger
    amounts of whole grains.
        And I would like to say in response to Mr. Waxman's
    concern, it is also important to know that major candy
    companies, Mars, Hershey, Cadbury's have agreed to stop
    advertising to kids under self-regulation and are
    participating--Nestle has agreed to stop advertising its Wonka
    and other confections to kids as well.
        Second, the CFBAI's new groundbreaking category specific
    uniform nutrition criteria will further improve the foods in
    child-directed advertising and make self-regulation work even
    better. Our new criteria build on the successes from our
    current program in which companies use meaningful but
    individually based standards. Our new uniform criteria will
    replace the company standards by the end of 2013. After that
    date, products across companies will meet the same criteria for
    the relevant product category.
        Our process for developing the new criteria was informed by
    the experience of high level in-house nutrition professionals
    who on a daily basis work on the development of new products
    and recipe changes. As a result, we have the benefit of their
    food technology and food science experience, as well as their
    understanding of the barriers to consumer acceptance of changes
    to popular products and newly developed products.
        In developing the criteria, we also were sensitive to
    competitive issues, and the criteria are purposely flexible to
    encourage even greater participation and self-regulation and to
    promote competition in the marketplace. The new criteria take
    into account the inherent differences in food product
    categories. A one-size-fits-all approach simply does not work.
    Grain products and dairy products, for example, are different
    and they need to be treated differently. Accordingly, we set
    limits for calories, fat, trans fats, sodium, sugars and
    requirements for positive nutrients such as fruits and whole
    grains that are appropriate to each category to spur product
    improvement and innovation. And our new criteria are tough.
    They will require the participants to change almost one-third
    of the products they currently advertise to children, products
    that already meet meaningful nutrition standards if they wish
    to continue advertising them after these criteria go into
    effect.
        Third, the Interagency Working Group proposal was not
    realistic or workable. It inappropriately would have swept in
    advertising to moms and families and its proposed nutritional
    criteria greatly underestimated the technological and consumer
    acceptance barriers to reformulating well-liked products. Our
    new criteria, in contrast, provide a rigorous yet realistic
    roadmap for future improvements. Our new criteria also are well
    within the scope of what the IWG said it was seeking as an
    alternative to its own proposal. Our new criteria are based on
    or closely aligned with regulations to finding healthy products
    and disclosure levels just as the IWG suggested. They also are
    informed by IOM's recommendations for school meals and other
    foods sold in schools.
        In conclusion, we were delighted to learn that the IWG
    considers our new criteria a significant development and that
    it intends to take them into account in its report to Congress.
    That is good news. Self-regulation has accomplished a
    significant amount in just a few short years. It has changed
    not only what products are advertised to kids, but the
    expectations about what should or should not be advertised to
    kids. So our new criteria will continue the steady improvements
    already occurring in foods advertised to kids and result in
    self-regulation working even better.
        Thank you so much.
        [The prepared statement of Ms. Kolish follows:]
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        Mr. Pitts. The Chair thanks the gentlelady and recognizes
    Ms. Johnson for 5 minutes for an opening statement.

                       STATEMENT OF BETH JOHNSON

        Ms. Johnson. Thank you. Good afternoon, Chairman Pitts,
    Madam Chair Bono Mack, Mr. Pallone and Mr. Butterfield and
    committee members. Thank you for the opportunity to testify
    today. My name is Beth Johnson. I am a dietician and mother of
    two girls, 8 and 11, and have worked in the food policy world
    for almost 20 years. I am pleased to be speaking to you today
    on behalf of the American Beverage Association, Food Marketing
    Institute, Grocery Manufacturers Association, the National
    Council of Farmer Cooperatives, National Grocers Association,
    National Restaurant Association and the North American Millers
    Association.
        I want to start with what most of us agree on, there is an
    obesity problem in the United States. How to address the
    problem, though, has been a question for as long as I have been
    working in the area of food policy. Some ideas that the
    government is wisely engaged in, as is the private sector, are
    backed by clear evidence, like community interventions or
    school interventions that we talked about earlier. Others, like
    food marketing, are less clear in their causal evidence.
        To that end, Congress directed the Interagency Working
    Group to conduct a study of the issue and report its findings
    and recommendations to Congress. Among other issues, Congress
    directed the IWG to consider calories. Instead of conducting a
    study, it appears the IWG did a literature review and proceeded
    directly to proposing comprehensive food marketing restrictions
    that contradict established nutrition science, ban the
    marketing of many healthy products to our children, and impact
    thousands of food and farm jobs. Interestingly, even though the
    effort was clearly about obesity and the agencies have
    longstanding positions on the importance of calorie balance on
    obesity, the calorie portion of the report is at a minimum very
    confusing, if even there.
        What the restrictions would do, however, is add to the
    confusion that is already out there on nutrition. Once fully
    implemented, the proposal would restrict the marketing of most
    whole grain breads, not all, yogurts, even though those foods
    provide important nutrients like fiber and calcium. Many
    cereals, too, would be prohibited from advertising because of
    sodium and/or sugar, both of which are far lower today than in
    the past. Some would argue that many children's cereals are
    high in sugar and shouldn't be advertised. But sugar levels
    have come down significantly and now represent a mere 5 percent
    of daily sugar intake and only 4 percent of calories. Cereal
    provides significant levels of important vitamins and minerals
    and is a vehicle for about 40 percent of milk consumption.
    Numerous government studies show that kids who eat cereal for
    breakfast have lower BMIs and do better in school. As a
    dietician and a mom, I think that is a pretty good track
    record.
        Equally as troubling is the lack of consistency within the
    Federal Government. Recently the Department of Agriculture
    updated the WIC food package based on recommendations by the
    Institute of Medicine. Certain foods like yogurt and cereal
    have been determined by nutrition experts to be important
    enough to supplement children's up to 5 diets through the WIC
    program, yet most of these same foods couldn't be advertised
    according to the IWG. The IWG criteria also don't match FDA's
    definition of healthy. At a minimum, this is very confusing and
    adds to the confusion that Americans are already facing today
    about nutrition.
        To be clear, the industry supports finding innovative ways
    to address the obesity challenge. In the past few years, the
    industry has reformulated over 20,000 product choices to reduce
    calories, sugar, sodium and other ingredients. These changes
    have occurred with significant research and resources to ensure
    safety, quality and consumer satisfaction. Kids are not fooled
    that easily. If it doesn't taste good, they won't eat it. And
    preventing the advertising of foods won't make healthier foods
    taste better.
        In addition to reformulation, the industry has listened to
    concerns about marketing to children. As a result of the
    Children's Food and Beverage Advertising Initiative, all
    marketing to children by CFBAI participants is for nutritious
    foods that meet the science-based standards. Let me note that
    critics dispute some of the results as far as the lowering of
    advertisements for food and beverages, but that is because
    their standards--they base their analysis on different
    standards.
        Finally, the question of costs and benefits must be
    addressed. A recent study by Georgetown Economic Services
    concluded that IWG's proposed restrictions if fully implemented
    would have a significant and negative impact on the U.S.
    economy in part because the cost of the IWG compliant foods are
    much higher than healthy foods in the diet. Indeed, if we ate
    the way the IWG would like us to eat, we would be spending 60
    percent more on our food than we do today. There would be other
    implications across the economy as well. But despite two recent
    Executive orders, which require government proposals to take
    into account benefits and costs and to be based on best
    available science, the IWG has not done a cost-benefit
    analysis.
        We urge the administration to withdraw the food marketing
    restrictions proposed by the IWG. Instead, we urge the IWG to
    do as Congress directed and conduct a study. Additionally, we
    urge them to follow the President's direction and look at the
    benefits and costs of its proposal. Obesity needs attention,
    but none of us can afford to waste limited government
    resources.
        Thank you for the opportunity.
        [The prepared statement of Ms. Johnson follows:]
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        Mr. Pitts. The Chair thanks the gentlelady. I recognize Dr.
    Wootan for 5 minutes.

                      STATEMENT OF MARGO G. WOOTAN

        Ms. Wootan. Good afternoon. I am Margo Wootan, the Director
    of Nutrition Policy At the Center for Science and the Public
    Interest. I know that I am supposed to say that I am happy to
    be here, but actually I am quite concerned about the focus of
    this hearing and the food advertising and entertainment
    industry's aggressive lobbying to prevent the Interagency
    Working Group from providing even voluntary suggestions for how
    they might improve upon self-regulation of food marketing to
    kids.
        You have heard about some of the progress that has resulted
    from the Children's Food and Beverage Advertising Initiative,
    and we support self-regulation and have successfully urged many
    companies to join the CFBAI. But after 5 years of self-
    regulation, progress is very modest and insufficient given the
    huge effect that childhood obesity is having on our children
    and children's current diets.
        From the time before self-regulation was in place until
    after, the percentage of food ads that are for unhealthy foods
    has decreased only a little bit, from about 90 percent of food
    ads to 80 percent.
        Recently, the CFBAI announced a common set of nutrition
    standards for food marketing to children, and that is a
    positive step forward. But it is only a baby step. Unlike the
    Interagency Working Group, the industry standards were
    developed through a closed-door process, with no opportunity
    for parents, the public, and public health experts to provide
    input. Under the CFBAI's so-called groundbreaking new
    standards, Cocoa Puffs, some varieties of Kool-Aid, fake fruit
    snacks, sugary Popsicles, and many other food that nutrition
    professionals consider to be unhealthy are considered healthy
    by the industry.
        I worked with Senators Brownback and Harkin on the
    bipartisan provision that required the formation of the
    Interagency Working Group, and I know firsthand that the intent
    was not to supplant self-regulation but simply to strengthen
    it. The Interagency Working Group guidelines would simply be
    suggestions for how companies could strengthen their food
    marketing policies to make them more effective.
        In fact, the CDC, USDA, and FDA lack regulatory authority
    over food advertising to children; and Congress itself took
    away this authority from the FTC in 1980.
        The Interagency Working Group's proposed guidelines are
    based on science and what is best for children. Those
    recommendations have overwhelming support from health groups
    and researchers and from the public. Out of the 29,000 comments
    that the agencies received, over 28,000 of them are in full
    support of the proposals by the agencies. The industry has
    proposed its own new marketing guidelines that are what
    business wants.
        As much as we support the original IWG proposal, we know
    that there will be a compromise somewhere in between.
    Unfortunately, for children and families, industry doesn't even
    want a compromise. They want Congress to step in and kill the
    Interagency Working Group.
        Few deny that childhood obesity and poor diets are national
    health concerns. We all agree on that. And of course there are
    multiple contributors to children's poor diets and obesity. But
    food marketing plays a key role. Industry representatives have
    been arguing that food marketing isn't effective. But if
    marketing doesn't work, why are companies concerned about these
    voluntary standards and why do they spend almost $2 billion a
    year marketing to children?
        Marketing is effective. Studies show it. Companies and
    parents know it. The reason that marketing has a negative
    effect on children's diets and health is that the overwhelming
    majority of products marketed to children are still of poor
    nutritional value.
        Now, of course, parents bear much of the responsibility for
    feeding their children healthfully. But parents are outgunned
    by industry that has psychologists, market researchers, great
    music, cartoon characters, and other sophisticated marketing
    techniques at its disposal.
        A parent's job is hard enough. Companies should support
    parents by not encouraging our children to desire and to expect
    to be fed food that undermines their diets and health.
        In closing, I ask you to let the Interagency Working Group
    finish its work; and I urge the food, entertainment, and
    advertising industries to work with the Interagency Working
    Group, not against it. The IWG is simply providing companies
    with much-needed advice on how they could continue to
    strengthen self-regulation. Then it will be up to the companies
    to decide what to do next.
        Thank you.
        [The prepared statement of Ms. Wootan follows:]
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        Mr. Pitts. The Chair thanks the gentlelady.
        The ranking member has a unanimous consent request.
        Mr. Pallone. Thank you, Mr. Chairman.
        Mr. Olson from Texas requested unanimous consent to submit
    an FTC document into the record during the questioning of the
    first panel. I just wanted to note a few things about this
    document. There was no signature on it, no time stamp, no
    evidence that this was a final document. My staff has asked for
    the origin of the document, and we have not heard anything yet.
    And, without further information, this isn't even an internal
    memo. It is a draft of an internal memo from staff to their
    chairman.
        I am not really sure why the majority would want to enter
    it into the record. However, in the interests of full
    transparency, the FTC has no objection to entering it into the
    record. Therefore, I have no objection either. But, in doing
    so, I just want to make it clear that I don't believe the
    document merits a great deal of attention from the committee.
        With that, I would withdraw my objection.
        Mr. Pitts. The Chair thanks the gentleman. Without
    objection, it will be entered into the record.
        And, Dr. Kunkel, welcome.

                        STATEMENT OF DALE KUNKEL

        Mr. Kunkel. Thank you.
        Let me start by asking, why are we here today? Based upon
    much of the discussion so far, one might surmise it is to argue
    about where to draw the line in terms of defining foods as
    healthy, or maybe to debate the proper role of government in
    people's lives.
        While both of those issues may be central to what we have
    discussed today, the fundamental reason why we are here is that
    the Nation faces a staggering epidemic of childhood obesity;
    and, contrary to assertions we have heard from some, there is
    compelling evidence that food marketing to children contributes
    significantly to the crisis.
        There are many elements involved with the obesity epidemic.
    Fewer family meals, increased reliance on fast foods, less
    physical activity, and a host of other elements all contribute
    to the problem. But we now know with great confidence that
    children's exposure to advertising for unhealthy foods stands
    prominently among the factors that contribute to childhood
    obesity. That evidence-based conclusion should remain front and
    center in the discussion about the fate of the IWG guidelines.
        In 2005, I served on an Institute of Medicine panel that
    produced this report, which has been referenced quite a bit
    today. More than a dozen of the Nation's leading scientists in
    nutrition, child development, marketing, and media effects
    systematically reviewed every scientific study that has been
    conducted on the topic, reaching back more than a quarter
    century.
        Among our key findings that were unanimously reported: One,
    children are heavily exposed to food advertising; two, the vast
    majority of child-targeted food ads promote obesogenic products
    that are high in added fat, salt, and sugar; three, child-
    targeted food advertising is highly effective; and, four,
    children who see more food advertising have a significantly
    higher risk of succumbing to obesity.
        Based upon that overall body of evidence, the IOM report
    concluded that food and beverage marketing practices put
    children's health at risk. It is well-known that the IOM report
    had several recommendations. One was that food marketers should
    shift their children's product portfolios to healthier foods,
    and two is that they should similarly shift their advertising
    practices.
        But the IOM issued yet another key recommendation that has
    largely been overlooked, and I want to draw your attention to
    that today. It explicitly recommended that if voluntary efforts
    failed to shift advertising during children's television to
    healthy foods, Congress should enact legislation mandating that
    shift on both broadcast and cable television.
        That report was released more than 5 years ago. That is
    when the IOM rang the bell that this is a problem that is
    harming our Nation's children's health. That has certainly been
    ample time for the industry to respond effectively.
        What we haven't heard anything about today is what does the
    evidence say regarding how well industry self-regulation is
    achieving the goal of shifting child-targeted food advertising
    to healthy foods? So on this point I have some evidence that--
    in fact, the evidence across a number of studies is strong and
    consistent. The large majority of child-targeted food ads still
    promote unhealthy products that should not be a part of a
    regular diet.
        Prior to the advent of self-regulation, my research shows
    that 84 percent of all foods advertised on TV to children were
    for products in the poorest of three nutritional categories
    used by DHHS; and that consists mostly of highly sugared
    cereals, beverages, snacks, and fast foods. If self-regulation
    was achieving its goal perfectly, the percentage of foods that
    fall in that category now should come down from 84 percent to
    zero. If self-regulation was even moderately effective, that
    proportion should at least be below 50 percent. But my studies
    show that in 2007, following self-regulation, the proportion of
    foods marketed to children that remained unhealthy was 79
    percent, and in 2009 it was still at 72 percent.
        I will soon release some findings from research I have
    conducted this year that indicate more of this pattern of
    inching in tiny steps in the desired direction, while falling
    very far short of the actual goal.
        In sum, industry self-regulation has not yet achieved any
    meaningful improvement in the nutritional quality of the foods
    marketed to children; and at the current rate of reform my data
    indicate it will take until the year 2033 for self-regulation
    to eliminate all child-targeted advertising for foods in the
    poorest nutritional category, all of which are products that
    should not be part of a child's regular diet.
        But instead of pursuing the regulation that the IOM report
    recommends, this committee has called a hearing that questions
    the mere recommendations that industry should be more
    responsible in their billion-dollar campaigns to influence
    children's eating patterns. It seems to me that this committee
    has lost sight of the fundamental cause for concern in this
    realm, that the marketing of unhealthy foods to children
    contributes to the epidemic of childhood obesity.
        [The prepared statement of Mr. Kunkel follows:]
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        Mr. Pitts. The Chair thanks the gentleman, and now
    recognizes Dr. Irons for 5 minutes for your opening statement.

                       STATEMENT OF JOHN S. IRONS

        Mr. Irons. Great. Thank you, and good afternoon. Thank you
    for the invitation to speak with you today about this very
    important topic.
        My name is John Irons. I am the research director at the
    Economic Policy Institute. My organization, the Economic Policy
    Institute, has been a leading nongovernmental voice emphasizing
    the need for more jobs in this weak economy. As an economist, I
    am very concerned about the impact of high and prolonged levels
    of unemployment on families and on the long-term health of the
    economy.
        With the current economic weakness in the labor market, it
    is important to assess the economic and employment effects of
    the voluntary marketing guidelines that are the subject of
    today's hearing. Let me briefly outline the prime impact of the
    proposed guidelines on employment. In my view, to the extent
    that companies follow these guidelines, the impact would be
    primarily a shift in advertising and a shift in product sales,
    not necessarily a reduction overall in these industries.
        First, to restate the obvious, the IWG proposed guidelines
    are voluntary, and thus there is no automatic reduction in
    advertising as a result of these guidelines.
        Second, if companies do choose to adopt the voluntary
    guidelines, a primary change that would result is a shift in
    consumption across food categories, for example, from foods
    with high levels of fats, sodium, and sugars towards foods
    lower in these nutrients. This shift in either advertising
    dollars or in sales could occur across product lines within a
    single firm or across firms within the industry. There might
    not be a net reduction in advertising, in sales, or employment
    even within the industry. It is also possible that advertising
    dollars would be shifted from marketing to children towards
    advertising on other products, or advertising on the same
    products to other people, such as their parents.
        Over time, we can expect firms and industry to respond to
    the guidelines by establishing new, healthier products and
    product lines that could then be marketed to kids. In fact, a
    surge in advertising might result as companies seek to expand
    product recognition for new product lines amongst kids and
    their parents.
        For example, as the FDA was considering adopting
    regulations requiring trans fat labeling, many companies
    reformulated their products to remove trans fats and invested
    in marketing those products. For example, Frito-Lay back in
    2003 had an ad campaign that was placed in the top 25
    newspapers around the country announcing zero grams of trans
    fat for their products that they had recently reformulated.
        Further, industry advertising is often designed to compete
    with other brands, transferring market share across companies
    but resulting in little to no change in their final industry
    level sales.
        A report by his Consulting has been cited widely, including
    in this hearing today, that claims to show that guidelines
    could result in a 20 percent reduction in ad sales and a loss
    of 74,000 jobs. My submitted testimony includes a more detailed
    critique, but let me summarize that the assumed 20 percent
    reduction in ad sales would seem to be a significantly
    exaggerated response, given the existing advertising patterns,
    the voluntary nature of the guidelines, and the likely shifting
    of ad dollars to other products or to targeting other age
    groups.
        Even if it still were the case that advertising reduction
    led to fewer sales in the food and beverage industry, consumers
    would simply shift some or all of those expenditures to
    products in other industries. A realistic assessment is that
    the proposed guidelines would have, at most, a modest impact on
    overall advertising levels and an even more modest impact on
    industry level sales and employment. Even if there were a job
    impact at the industry level, the shifts to other industries
    would likely yield job increases that would offset some or all
    of the impact on the food and beverage industry.
        As I said earlier, I am an economist, and I am concerned
    with the health of the economy. However, as a father, I am
    primarily concerned with the health of my two daughters. I am
    well aware of the challenges of getting a 3-year-old to eat
    healthy. In my family, fruits and vegetables are sometimes
    ketchup and French fries. I realize that my girls will see
    thousands of ads while they grow up, but I would much prefer
    that the advertising that they do see be for healthier
    products.
        As an economist, I think that the IWG guidelines would
    primarily result in a shift of ad dollars towards healthier
    products and not a reduction in overall industry advertising,
    sales, or jobs.
        Thank you.
        [The prepared statement of Mr. Irons follows:]
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        Mr. Pitts. The Chair thanks the gentleman, thanks the panel
    for your prepared testimony.
        We will now begin questioning, and I will recognize myself
    for 5 minutes for that purpose.
        Mr. Baughman, should the IWG withdraw its recommendations
    and start over? If you believe that, why?
        Mr. Baughman. Well, yes, I do believe that. As I said in my
    prepared statement, IWG has really focused on idealized foods.
    And I was heartened to hear that in fact they are looking at
    the precedent that we set as part of the CFBAI to look at
    different foods differently, because they play a different role
    in the diet, and they offer different plusses and minuses, if
    you will, in the diet. Even within categories of foods, there
    are differences in how much--for instance, how much whole grain
    you can put in something, how much salt it may need to be
    palatable. So, yes, the approach that they have taken has
    really been not a productive one.
        Mr. Pitts. Mr. Jaffe, should the IWG withdraw its
    recommendations and start over? If you believe that, tell us
    why.
        Mr. Jaffe. Yes, I do. And as I said in my testimony
    earlier, we believe these are very radical proposals. There is
    nothing in the proposals that answers the key question that the
    Congress has asked, which is how these proposals, if acceded to
    by industry, would affect obesity. We think they would have
    extremely significant economic impacts. So, across the board,
    we think that the proposal as it now stands is so flawed it
    should be withdrawn.
        If it is not going to be withdrawn, at the very least the
    agency should answer the 10 questions that came out of this
    committee and also the specific questions that were in the
    report before they ever file it. And I believe that, because
    they missed the target so dramatically and they have admitted
    that they have to substantially change their report, that there
    should be a chance for comment from the industry once again
    before they finalize it.
        Mr. Pitts. Ms. Kolish, would you respond to that question
    as well?
        Ms. Kolish. I believe that the IWG's proposal was very
    unrealistic and unworkable, but I am very heartened to hear
    they are taking our new criteria into account and will be using
    them in their report to Congress. I think that is a very good
    solution.
        Mr. Pitts. Ms. Johnson, please respond.
        Ms. Johnson. Yes. I do think that the guidelines, in
    particular how they have put them out at this point, should be
    withdrawn. I think that they need to focus on conducting a
    study, as they were told to do. And, also, as they are putting
    this together, make sure they address the confusion that they
    have added to instead of helped to clarify on the nutrition
    front.
        Mr. Pitts. All right. Mr. Baughman, has your company
    conducted any type of economic analysis for implementing the
    IWG recommendations? What type of impact would this have on
    your company's ability to hire new workers or retain current
    ones? Can you talk about the economic impact of these
    recommendations on your company and others?
        Mr. Baughman. We have not done a study on the economic
    impact. What I can say is that following the nutrition criteria
    and the guidelines would mean that we would not be able to
    promote these foods to children. None of our soups--even our
    low-sodium soups would fail to comply because of--you know, you
    need a little bit of something to make things, you know,
    something you want to eat. And also with soups, of course,
    because there is a great deal of water in a soup, it doesn't
    comply with the positive food group requirements.
        But I think the misconception often is that food companies
    can control what people eat. In fact, we don't control what
    people eat. They control what we can sell to them, and we have
    to be very conscious of that. And certainly the criteria that
    have been set out here in their proposal are ones that would
    make it impossible for us to comply.
        Mr. Pitts. Mr. Jaffe, what is the most serious problem with
    the IWG proposal, in your opinion?
        Mr. Jaffe. Well, at least--we represent marketers. The most
    serious problem from the marketing side is that, as it
    specifically states, it makes it impossible, if people are
    going to accede to the command of the IWG, that a large
    percentage of food products currently in the marketplace would
    not meet the principles and not be able to be advertised.
        And we heard earlier in the hearing that the numbers that
    were being used for the economic analysis were too high. What
    was ignored is the fact that this would not just impact kids,
    but they have now expanded the number to those under 18 and
    then said that if there is 20 percent of the marketplace that
    includes those between 12 and 17, or 30 percent of the
    marketplace between 2 and 11, that that would mean that the
    advertisers would be treated as if they were directed just to
    kids.
        So this sweeps in an enormous amount of adult programming
    as well. We estimate that more than 1,700 programs on broadcast
    and cable would be affected.
        We can't understand how anybody can claim that this is not
    going to have very, very significant economic impacts if most
    of the foods that are advertised in this country are suddenly
    verboten for anybody under 17, and in many programs with a
    substantial adult audience, as much as 80 percent of the
    audience adult, not be allowed to be advertised and still meet
    these criteria. So we think that this is a very radical
    proposal. We don't think that that is hype. We just think that
    is the fact.
        Mr. Pitts. The Chair thanks the gentleman.
        The time has expired. Recognize the ranking member for 5
    minutes for questions.
        Mr. Pallone. Thank you, Mr. Chairman.
        I have my own questions that I wanted to ask, but I did
    want to give one of the three other panelists--Dr. Wootan,
    Kunkel, or Irons--an opportunity to respond to Mr. Pitts's
    question, if you want to, you know, whether or not the working
    group recommendations should be thrown out. I don't want all
    three of you, because I have my own questions. Would any of you
    like to respond to that?
        Mr. Kunkel. My response is going to be stronger than likely
    my colleagues.
        My response is that I wouldn't withdraw the IWG guidelines.
    I would table them. And I would table them while the Congress
    considers the recommendation of the Institute of Medicine. And
    that is, if the industry could not move significantly to reduce
    marketing of unhealthy food products to children in the short
    term, that this Congress should regulate to accomplish that.
    And it has been 5 years, and we haven't seen any significant
    improvement.
        What we have seen--and I will agree with Ms. Kolish. She
    said there has been steady improvement. There has. We are
    inching to success. But we can't afford to wait 30 years to get
    there.
        Mr. Pallone. OK. Let me go back to Mr. Baughman. I am
    always happy to see somebody from a New Jersey corporation
    testify. So thanks for being here.
        Mr. Baughman. Thank you.
        Mr. Pallone. I was glad to hear from your testimony that
    Campbell Soup agrees with Congress, the IWG, and the IOM that
    addresses the prevalence of childhood obesity, that that should
    be a national priority. And we recognize that childhood obesity
    is simply a problem that we can't ignore. But, you know, I
    think you have to have partnerships with the private sector and
    that we have to find realistic and workable guidelines for food
    marketing to children. So I wanted to say I think we all agree
    that the IWG proposal needs some reshaping, but I still believe
    it is an important step towards this kind of partnership, if
    you will.
        You are clearly opposed to any type of Federal guidelines
    and suggest the proposal be eliminated altogether. So how do
    you instead propose that the food industry work with the
    Federal Government to address childhood obesity? What would you
    have us do?
        Mr. Baughman. I do think that discussion and dialogue are
    important in any major public issue, and certainly I think we
    as Campbell are always interested in sitting down with anyone
    to talk about those kinds of issues. We have in fact, as I
    believe you know, have been working with obesity experts
    locally in our home city of Camden in tackling hunger and
    obesity, and there we are working with a great number of NGOs
    and so forth to tackle this issue.
        Mr. Pallone. Let me ask you about the sodium, because I
    know you mentioned the sodium levels, and I know that CPSI also
    spoke about their concern with the sodium level requirements.
    Instead of the IWG, how would you propose addressing sodium
    levels in food products marketed to kids? Let's just talk about
    that. How would you propose to do it?
        Mr. Baughman. I would propose taking the approach we have
    taken as one of the members of CFBAI, which is to look at
    specific product categories and looking at what sort of sodium
    or salt is required in a particular product category to meet
    consumer expectations in terms of texture--obviously, there is
    food safety issues but, very importantly, taste and not have a
    one-size-fits-all standard.
        You may know that, for instance, a soup does require a lot
    more sodium to taste good than a yogurt. It is a savory
    product. If you mix up chicken meat and water with some carrots
    and celery and so forth, you do need some salt in order to make
    that a good food. And our concern is that by applying one
    standard for sodium across the board that we are under the
    delusion that every food that we eat has to have the same exact
    profile.
        We should be eating a variety of foods, and each of those
    foods has its unique contributions in terms of food groups and
    positive nutrients, as well as the nutrients to limit. That is
    putting the entire diet together with a mixture of foods that
    compose a healthy diet.
        Mr. Pallone. Mr. Chairman, I just wanted to make clear that
    I fully expect that the IWG is going to take these comments
    into account when finalizing their guidelines. It is my hope
    that we can work in tandem to address this. I mean, it is a
    national epidemic, and it has to be addressed.
        Thank you.
        Mrs. Bono Mack [presiding]. I thank the gentleman and note
    that I am Madam, not Mr. Chairman.
        Mr. Pallone. I didn't see you came back, Mary. I apologize.
    I certainly didn't want to think that I saw you instead of Joe
    there.
        Mrs. Bono Mack. Thank you. And thank you for your time. I
    will recognize myself for 5 minutes for questioning.
        I just want to start with an observation to all of you, and
    that is often in the political debate here you are either the
    pessimists or the optimists. We have been told this is the
    health of our children versus jobs and our struggling economy.
    If you are an optimist, the glass is half full. If you are a
    pessimist, it is half empty. Our job is to design the perfect
    glass, and I just don't think we have done it yet. I really
    don't. I am not hearing from all of the witnesses today that we
    have got it perfect.
        Dr. Kunkel, you mentioned that we should regulate the
    Institute of Medicine and that you think we should get out
    there and regulate. I will just point out that today or
    yesterday there was a study released, not relative to this
    point but still in the health care debate. It was a study
    released by the Archives of Internal Medicine that now says
    multivitamins for women causes a decreased life span. That is a
    brand new study.
        So you regulate yet in an area that changes, and data
    changes so quickly. What was healthy today might not be healthy
    tomorrow. I mean, we created hydrogenated oils because butter
    was unhealthy suddenly. And so I don't think we are there yet.
        And, Dr. Wootan, you said that Congress wants to kill the
    working group. No, we don't. But we want common sense. We want
    to know that the FDA and the FTC and the working group are
    actually collaborating, working together, so that we are not
    constantly reinventing the problems and the unintended
    consequences that are created out of this mess.
        So, Dr. Irons, to you, though, as the economist and to the
    father, the crux of the matter here is the jobs. And have you
    really analyzed the jobs? You know, we are talking about the
    advertising industry, we are talking about the food industry,
    and we are talking about content. Each of you critics have
    pretty much taken a lot of shots at the content providers. Can
    you talk about the hundreds of thousands of jobs that are
    created?
        You know, certainly what I care about is southern
    California, but it will impact those people, those jobs, the
    seamstresses, the grips, all the people who work in that
    industry. And I don't know how many of you are actually focused
    on those people who are trying put food on the table for their
    children. So if you can speak briefly to that, that would be
    great.
        Mr. Irons. Yes, I am very concerned about those people,
    too. Let me just kind of throw out an example.
        If you look at the advertising industry, they employ about
    a half a million people, plus or minus, in any given year. The
    food and beverage industry is about a million and a half people
    per year. I think a good case study is the impact of the CFBAI
    regulations--not regulations, but guidelines. If you look at
    employment in those industries from 2005, before the
    initiative, to 2008, after the initiative was started, you find
    that for the economy as a whole employment grew by about 2.3
    percent. For the advertising industry, it grew by faster than
    that, by 3.5 percent.
        Mrs. Bono Mack. And this is the frustration that somebody
    like I have with the fact that the agencies don't talk to one
    another. You just cited years that are even long before the
    digital explosion being what it is now. Content providers are
    struggling in an everyday world to provide content because it
    is all moving to the digital world, and it is out there for
    free. So you are looking at studies that are 6 years old, 7
    years old, about the way it used to be. I mean, so for us to
    say, wait a minute, you don't have it right yet, is it that
    hard to recognize that we need to talk about today and tomorrow
    and going forward and what it means for jobs, not what it meant
    6 years ago?
        Mr. Irons. I think that is right. But the way we assess the
    impact in the future is to look at past experiences with these
    kinds of guidelines, and it looks as though there has been no
    major impact in the past. So like I said in my testimony, my
    view is that there is a shift within the industry and that, if
    not a reduction in advertising, it will be a shift in the kinds
    of products that are advertised, with at least the possibility
    that there could be a surge.
        So, you know, I do want to recognize it is important to
    assess the consequences. Absolutely. But from my perspective I
    don't see in the data, I don't see in the studies any major
    impact this would have on jobs.
        Mrs. Bono Mack. But then again I think that those of us say
    that we just don't yet see a major impact on the childhood
    obesity rate by what we are trying to do here. And I think it
    is very reasonable to say when, Dr. Kunkel, you said table it,
    I was excited, thinking, oh, you did mean let's talk about this
    a little bit further and figure out how to do something that is
    good for the economy and good for our children, design that
    perfect glass.
        Mr. Baughman, how have your soups changed over all the
    years? And when would everybody--when would you say the obesity
    epidemic really started? And have your soups changed over those
    years?
        Mr. Baughman. Well, that is a complex question.
        Mrs. Bono Mack. You have 10 seconds. You are lucky.
        Mr. Baughman. Yes. While I think I am well informed on
    obesity, saying when the obesity epidemic began, you know, I
    believe that it began, you know, a couple of decades ago. But
    our soups have not really become more caloric. The difference
    in our soups has been really in thinking of those condensed
    soups that everyone is especially familiar with. The major
    change there has been having about a thousand milligrams of
    sodium per serving not that many years ago and gradual
    decreases in sodium over that time.
        Mrs. Bono Mack. Just briefly, and I am sorry because your
    time is up, and I would just like to end with one point. By
    sodium, it would be good--you also do mean MSG, right?
        Mr. Baughman. I am sorry?
        Mrs. Bono Mack. MSG is really what you mean by sodium?
        Mr. Baughman. No, sodium, I mean salt. I mean sodium
    bicarbonate in a baked product, other sodium-containing
    compounds.
        Mrs. Bono Mack. My time has expired. So thank you very
    much.
        And the Chair is happy to recognize Dr. Burgess for 5
    minutes for questioning.
        Mr. Burgess. Thank you, and I appreciate the opportunity. I
    appreciate you all staying with us for so long.
        Mr. Jaffe, let me just ask you a couple of things. Now, in
    your testimony, of course we are told these are voluntary
    guidelines, compliance is voluntary. But you actually imply in
    your testimony that there may be more to the voluntary than
    meets the eye, the ability during the research of the working
    group to actually subpoena information and to get specific
    information from marketers. Do I understand your testimony
    correctly in that regard?
        Mr. Jaffe. You are absolutely correct.
        And, by the way, the focus cannot be just on the Federal
    Trade Commission. The White House did a report on obesity. And
    in the course of that report they said if the industry does not
    carry out adequate self-regulation that the Federal
    Communications Commission should step in and limit the amount
    of children's advertising.
        And, also, as you are, I am sure, aware, for a broadcast
    licensing you have to operate in the public interest. If you
    have four agencies who are supposedly the experts both on
    marketing and on health in this country, all come together and
    make a proposal to the Congress saying that all of this type of
    advertising is unhealthy for our children, do you not think
    that we are going to start seeing that when people come up for
    their licenses, if they are continuing to run those types of
    ads, that they would be under challenge?
        There is a great deal of more compulsion here than has been
    expressed in this hearing, and this is not just our view. As I
    said, Martin Redish, who is one of the top constitutional
    experts in this country, has said so.
        Mr. Burgess. Let me just ask you a question about that. Was
    there in fact intimidation involved in questioning the
    industry?
        Mr. Jaffe. Well, all I can say is that, you know, the fact
    that the industry has been as exercised as this I think gives
    you a clear sense that they did not think that this was
    something people could just ignore or walk away.
        Mr. Burgess. We saw this during the health care debates.
    The phrase that was frequently used with the administration was
    you are either at the table or on the menu. Since this is a
    food hearing, that is an appropriate analogy. But was that same
    principle at work here with this working group?
        Mr. Jaffe. Well, certainly we felt that if this went
    forward that the Congress would now be on record as saying that
    the vast majority of all of the advertising that all of these
    companies--the restaurant industry, the beverage industry, the
    food industry--was doing was inappropriate and unhealthy for
    children. That is what these four agencies were claiming. And
    that clearly was going to put all sorts of different pressures
    on us, whether they came from government, whether it came from
    stockholders, whether it came from consumer groups. And to act
    as if there wasn't any pressure I think is very unreasonable to
    expect. I think the fact that 150 Congress and Senate
    representatives have spoken out against this report suggests
    that they think this is more than something that is a mere
    voluntary proposal.
        Mr. Burgess. Let me ask you something. Because Mr. Pompeo,
    who is not here with us, asked a question of the previous
    panel, what is going on in other countries? I mean, are there
    other countries that actually restrict this type of
    advertising? And what has their experience been? Are any of you
    aware of countries that restrict this type of advertising?
        Mr. Jaffe. I can at least start that answer, and I am sure
    there are others here who could build on it. Sweden has
    basically banned all children's advertising across the board,
    not just for food advertising.
        Mr. Burgess. Over what period of time now has that
    occurred?
        Mr. Jaffe. Certainly a decade, but I think it is more than
    that now.
        Mr. Burgess. Are they able to point to any difference in
    rates of childhood obesity?
        Mr. Jaffe. Their obesity rates are worse than a number of
    other European countries that have no restrictions. Same case
    for Quebec.
        Mr. Burgess. What are those advertising minutes--what are
    they filled with? Do they advertise BB guns? What are they
    advertising during those minutes that are no longer sold to----
        Mr. Jaffe. I think I have to defer to others on that. All I
    can say is they certainly are not advertising food, beverage,
    restaurant products during that time frame. And yet the obesity
    rates have not gone down.
        And that was--Quebec is another place which has tried to do
    the same thing. They do not have better obesity rates than the
    rest of the Canadian commonwealth. So it is just not provable.
        And if you go look at the IOM report itself, despite the
    fact that people would want to dismiss it, they say that they
    couldn't find causation. And in fact for 12 to 17-year-olds, it
    was the opposite, that they found a negative association
    between advertising and the consumption patterns for those
    groups.
        Mr. Burgess. I thank you for that.
        And, Dr. Kunkel, I will just share with you that sometimes
    I do share in your frustration. And if I ran the world, things
    could be better. But we do live in a free society. If I had my
    way, I would ban tobacco and alcohol as well as high fructose
    corn syrup. But we do live in a free society.
        And honestly, Dr. Irons, it puts the responsibility of
    parents in a free society are even higher than if the
    government exerts complete control, complete regulatory
    control.
        It would be great if we lived in a perfect world, but we
    don't. And we all know that those things that are severely
    regulated we don't always get the desired behavior that we
    want. So before we give up more of our freedom to something,
    perhaps we ought to evaluate the risks and benefits what the
    trade-off is.
        And I will just offer that as an observation. You are both
    free to respond to that.
        Mr. Kunkel. I respect your point of view, but what----
        Mr. Burgess. Ironically, I am way on the left to you, but,
    to me, I am way on the right. So it is a difference in
    perspective.
        Mr. Kunkel. I appreciate your point. But what we are trying
    to suggest is that there isn't a level playing field here, that
    the industry is investing nearly $2 billion annually to try to
    influence children's eating patterns. And it is working, and
    the foods that they promote are contributing to childhood
    obesity. So therefore----
        Mrs. Bono Mack. The gentleman's time has expired. I am
    sorry, but we have other people waiting to ask the panel some
    questions.
        So the gentleman's time has expired, and the gentlelady
    from Tennessee is recognized for 5 minutes.
        Mrs. Blackburn. Thank you, Madam Chairman.
        I have got a series of eight questions. They are basically
    yes or no, and then someone may want to give a quick response.
    But let's work through these.
        Before I do, Mr. Jaffe, I just want to say to you that last
    week my colleagues on the Congressional International Anti-
    Piracy Caucus sent you a letter regarding advertising placed on
    pirate Web sites, and I wanted to highlight your comment. You
    told C-NET Daily that the issue is of very, very high
    importance. It is of high importance to us and to many of the
    musicians and songwriters and individuals that we represent
    that don't get paid if there is advertising on Web sites.
        All right. Now to my questions.
        OK, this first one is a yes or no for all of you. Just
    raise your hand. OK, yes or no, do you think the IWG guidelines
    can be accurately described as a new regulation? No? Raise your
    hand if you say no.
        OK. So that is three of you. Four of you. So we have got
    four noes.
        How many you say, yes, they are new regulations? One. And
    we have two that can't make up their mind. OK. So there is one
    yes.
        If no--let me tell you what I think about new regulations.
    When I look at something to see if it is a new regulation, I
    say, is it going to cost businesses money? Is it going to have
    an impact on jobs? Have we looked at the cost of the new
    guidelines? So those are things that go into regulation.
        So if you said no, why would this--how is this not going to
    cost money or cost jobs or be an expense to businesses to
    implement? Anybody have 15 seconds to offer on that?
        Ms. Kolish. Ms. Blackburn, I said no, but when I said no, I
    didn't think it was regulation. I did think it had the feel and
    impact of back-door regulation, which is equally troublesome.
    And I am really gratified that they have noticed that we have
    taken a significant step in our new criteria and will take it
    into account in their report to Congress. I think that is very
    important.
        Mrs. Blackburn. OK. And, you know, the FTC--we got a letter
    from USDA, HHS, and FTC describing these rules as, quote,
    unquote, nonregulatory recommendations. That is always of
    concern.
        OK. Question number two. We see that these are voluntary,
    supposedly. But how many of you think that these could end up
    being government standards or being used as the basis of NGO
    attacks? Could form the basis for shareholder actions? Could be
    used to initiate private litigation? How many of you fear that
    these regulations----
        OK, so we have got four of you that think it could form
    that kind of basis. Anyone want to comment?
        Ms. Wootan. I mean, that is where a lot of different
    questions certainly will encourage companies to follow those
    standards. But you can't sue a company for not following a
    voluntary suggestion. You can only sue----
        Mrs. Blackburn. That was not the question.
        Ms. Wootan (continuing). For breaking the law.
        Mrs. Blackburn. That wasn't the question.
        Number three. To see if this is needed or not, do you think
    this is duplicative of the FCC guidelines for marketing to
    children? Anyone see this as a duplication of efforts?
        No? OK.
        All right, number four. Do you find it alarming that food
    currently sold through the WIC program, which is designed by
    USDA experts to provide a healthy diet for young children,
    could no longer be marketed under your proposal? Does that
    cause you concern? Any hands?
        Ms. Wootan. The WIC standards----
        Mrs. Blackburn. We have got four.
        Ms. Wootan. I like the stronger WIC standards that they
    proposed.
        Mrs. Blackburn. OK. Question number five then. Do you think
    that IWG guidelines raise any free speech concerns and have you
    determined the likely impact on advertising revenues?
        So how many of you think that it would cause free speech
    concerns? May I see your hands?
        So we have got four that are there.
        And do you think it is going to have an impact on
    advertising revenues?
        We have got two.
        OK. How many think these guidelines will actually do
    something to reduce obesity?
        We have got two.
        OK. How many support or sponsor exercise programs in your
    companies or your organizations?
        We have got three that believe in exercise, which is a big
    part of reducing childhood obesity.
        OK. How many favor regulating Web sites, mobile devices, or
    point of purchase access to children? Would you go in and
    regulate what is on a Web site, what is on a mobile device like
    a mobile TV? Would you regulate access at point of purchase,
    like when a child is in the grocery store with their parents?
    How many of you would extend your guidelines, your marketing
    guidelines to that?
        Ms. Wootan. These aren't regulations. They are suggestions.
        Mrs. Blackburn. And we know where regulations get their
    genesis.
        Thank you all so much. I yield back.
        Mrs. Bono Mack. Thank the gentlelady, and the Chair is
    pleased to recognize Dr. Cassidy for 5 minutes for questions.
        Mr. Cassidy. Thank you all.
        This is kind of a confusing hearing for me, because there
    is really a kind of disagreement on questions of fact. I mean,
    the gentleman from FTC said, Mr. Vladeck, said he could not
    think of a single time when principles have led to litigation
    or to rules, and here we have folks putting their hand on a
    Bible raising them and saying, heck, this is our existential
    anxiety that this is what it will lead to.
        So, Mr. Jaffe, just to pick you, if Mr. Vladeck were here,
    if I were channeling Mr. Vladeck right to you and you had a
    chance to reply to him saying there has never been an example
    and he gave the example of principles regarding violence in
    video games and et cetera, what would you say? I mean, he says
    there is never an example. But for you it is an anxiety.
        Mr. Jaffe. Well, that is clearly wrong. There is the Bantam
    Book case where the Supreme Court clearly acted before there
    had been any overt regulation. And I would then quote to him
    Professor Sullivan, who was, as I mentioned earlier, a former
    dean of the Stanford law school, who is a chair at the school
    still, and it said, Professor Sullivan further notes that
    government action undertaken with the purpose and predictable
    effect of curbing truthful speech is de facto regulation.
        Mr. Cassidy. But they would reply that this is not to curb
    speech. It is just going to be like me telling my son, boy,
    when you are out on the tennis court don't behave in a certain
    way, and he goes out and behaves as he wishes. You follow what
    I am saying?
        Mr. Jaffe. But what she says is, even where the mode of
    censorship is informal and even where the acceptance of the
    speech restrictive conditions is nominally voluntary, the
    Supreme Court has long held that such efforts are
    unconstitutional.
        Mr. Cassidy. Dr. Kunkel, what would you say to that man? Or
    Dr. Irons or anybody who would disagree with Mr. Jaffe.
        Ms. Wootan. There is a letter from 38 very esteemed legal
    scholars that have a very different opinion than the industry's
    hired attorneys.
        Mr. Cassidy. This guy is from Stanford. The person who they
    quoted is at Stanford.
        Ms. Wootan. And ours are from Yale and Harvard and all over
    the globe.
        Mr. Cassidy. But what I am saying is, in a sense, you
    deprecate him by saying he is hired. But I mean theoretically--
    --
        Ms. Wootan. He has two. We have 40. I don't know. I don't
    think it is--it is not the common opinion.
        Mr. Cassidy. I have limited time. I don't mean to
    interrupt. I apologize.
        So I am looking here, Institute of Medicine--because you
    quoted him. I am thinking IOM, and they have a thing here using
    litigation to change policies and practices regarding childhood
    obesity--and so I have to admit I am in a sense thinking, wow--
    litigation can raise public awareness of an issue, result in
    disclosure of important documents. And it goes through
    strategies, advantages, disadvantages of litigation. That would
    seem to support, though, what these folks are saying, that
    there are actually people out there who think how can I use a
    lawsuit to push the envelope? You see what I am saying?
        Mr. Kunkel. The litigation that is being referenced, the
    litigation that they are talking about is existing legal
    standards, for example, misleading information. So there are
    organizations and there are government agencies that have
    litigated against the food marketing industry when they claim
    that their products are healthy by putting, let's say, a Smart
    Choice check on it, when in fact it has significant evidence
    that the product contains elements that make it unhealthy.
        Mr. Cassidy. So I have something which is a high fiber
    sugar-coated something.
        Mr. Kunkel. How much? Sugar coated can be a thin veneer. It
    can be loaded and loaded.
        Mr. Cassidy. So I think what we just agreed upon is there
    is a level of subjectivity here. Now, high fiber may be what
    sends you to the restroom after eating breakfast----
        Mr. Kunkel. The subjectivity is where do you drawn the
    line?
        Mr. Cassidy. Yes.
        Mr. Kunkel. No one would disagree that excess amounts of
    sugar is healthy--I am sorry, is not.
        Mr. Cassidy. But they may disagree as to what is excess.
        Mr. Kunkel. Yes. Where to draw the line.
        Mr. Cassidy. So you could say it is healthy based upon
    fiber content but then get dinged because of sugar?
        Mr. Kunkel. We know many foods are so far over the line in
    the unhealthy side of the equation that they are contributing
    to childhood obesity.
        Mr. Cassidy. Let me stop you right there. I have got your
    point.
        Ms. Kolish, I will throw it to you, but this is a different
    question. I mean, there are articles in the medical literature
    that our children will have a shorter life span than we because
    of obesity. If not this remedy for obesity, what?
        Ms. Kolish. I think self-regulation--advertising self-
    regulation alone is not going to cure the obesity problem. We
    need the joint efforts of everyone. But self-regulation is
    doing an outstanding job of reducing sugars, fats----
        Mr. Cassidy. But is it reducing childhood obesity?
        Ms. Kolish. It is a multifaceted problem, and I don't think
    you can take that factor alone and say it by itself is reducing
    obesity or causing obesity. So I can't answer that. I don't
    think anyone could.
        Mr. Cassidy. I am out of time. I wish we were sitting
    around drinking Diet Coke discussing this further.
        I yield back.
        Mrs. Bono Mack. I thank the good doctor. I am not sure
    about Diet Coke being healthy for you.
        So I would like to begin wrapping up and to thank all of
    our witnesses today and to assure you that, again, I am happy
    to work with you. I know our subcommittee, until we get this
    right, to continue visiting it.
        I would like to thank the Health Subcommittee, their staff,
    for their hard work with today, as well as the subcommittee and
    members of the CMT Subcommittee.
        So I will remind Members they have 10 business days to
    submit questions for the record. I ask the witnesses to please
    respond promptly to those questions. Members should submit
    those questions by the close of business on October 26.
        And the subcommittees are now adjourned.
        [Whereupon, at 1:50 p.m., the subcommittees were
    adjourned.]
        [Material submitted for inclusion in the record follows:]
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