[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:]
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    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.
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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.]
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