[Federal Register Volume 74, Number 181 (Monday, September 21, 2009)]
[Notices]
[Pages 48072-48075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22670]


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FEDERAL TRADE COMMISSION


Agency Information Collection Activities; Proposed Collection; 
Comment Request

AGENCY: Federal Trade Commission (``Commission'' or ``FTC'').

ACTION: Notice.

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SUMMARY: The FTC intends to conduct a study of food marketing to 
children and adolescents, as a follow-up to the study it published in 
2008 on the same topic. For this reason, the FTC seeks public comments 
on proposed information requests to approximately 45 major food, 
beverage, and quick service restaurant (QSR) companies. These comments 
will be considered before the FTC submits a request for Office of 
Management and Budget (OMB) review under the Paperwork Reduction Act 
(PRA) of compulsory process orders to food, beverage, and QSR 
companies. The compulsory process orders will seek information from 
those companies concerning, among other things, their marketing 
activities and expenditures targeted to children and adolescents and 
nutritional information about the companies' food and beverage products 
marketed to children and adolescents.

DATES: Comments on the proposed information requests must be received 
on or before November 23, 2009.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form, by following the instructions in Part 
III of the SUPPLEMENTARY INFORMATION section below. Comments in 
electronic form should be submitted by using the following weblink: 
(https://secure.commentworks.com/ftc-foodmarketingPRA) (and following 
the instructions on the web-based form). Comments in paper form should 
be mailed or delivered to the following address: Federal Trade 
Commission, Office of the Secretary, Room H-135 (Annex J), 600 
Pennsylvania Avenue, NW., Washington, DC 20580, in the manner detailed 
in the SUPPLEMENTARY INFORMATION section below.

FOR FURTHER INFORMATION CONTACT: Carol Jennings, Attorney, 202-326-
3010, or Mary Johnson, Attorney, 202-326-3115, Division of Advertising 
Practices, Bureau of Consumer Protection, Federal Trade Commission.

SUPPLEMENTARY INFORMATION:

I. Background

    In July 2008, the FTC published a report entitled Marketing Food to 
Children and Adolescents: A Review of Industry Expenditures, 
Activities, and Self-Regulation.\1\ The report analyzed expenditures 
and marketing activities by 44 food companies across various 
promotional activity and food product categories for the year 2006. The 
report also reviewed policies and initiatives undertaken by companies 
to encourage healthy eating and lifestyle choices by children and 
adolescents, and evaluated the extent to which companies had 
implemented recommendations of the report from a workshop on Marketing, 
Self-Regulation & Childhood Obesity that the FTC and the Department of 
Health and Human Services jointly convened in 2005.\2\ Calendar year 
2006 was an appropriate benchmark year for the FTC's study - before the 
Council of Better Business Bureaus implemented its efforts to modify 
food advertising to children through the Children's Food and Beverage 
Advertising Initiative, and early into the Alliance for a Healthier 
Generation's efforts to reduce and change the nature of food and 
beverage marketing in schools.
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    \1\ The study was requested by Congress in conjunction with the 
Commission's FY 2006 appropriation (Pub. L. 109-108). The Conference 
Report (H. R. Rep. No. 109-272 (2005)) for this appropriations law 
incorporated by reference language from the Senate Report (S. Rep. 
No. 109-88 (2005)) instructing the FTC to prepare a report on food 
industry marketing activities and expenditures targeted to children 
and adolescents.
    \2\ See Federal Trade Commission & Department of Health and 
Human Services, Perspectives on Marketing, Self-Regulation & 
Childhood Obesity (2006), available at (http://www.ftc.gov/os/2006/05/PerspectivesOnMarketingSelf-Regulation&ChildhoodObesityFTCandHHSReportonJointWorkshop.pdf).
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    The Commission obtained data and information for the 2006 study by 
issuing compulsory process orders to producers, distributors, and 
marketers of foods frequently advertised to children (ages 2-11) and 
adolescents (ages 12-17), such as carbonated and non-carbonated 
beverages, snacks, baked goods, cereals, prepared meals, candy, dairy 
products, andrestaurant food.\3\ The study found that the companies 
spent more than $1.6 billion\4\ marketing their products to children 
and adolescents in 2006, and employed a variety of techniques, 
including promotion through traditional measured media, the Internet 
and other ``new'' media, product packaging, and in-store advertising, 
as well as integrated campaigns that combined several techniques and 
cross-promotions with media and entertainment companies.
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    \3\ Because the compulsory process orders were sent to ten or 
more entities, the PRA required the Commission to obtain approval 
from the OMB to conduct the study. The Commission published two 
Federal Register notices, at 71 FR 62109 (Oct. 23, 2006) and 72 FR 
19505 (Apr. 18, 2007), in connection with the OMB submission. The 
OMB approved the Commission's proposal to conduct the study on July 
18, 2007.
    \4\ This figure does not include the cost of toys - estimated to 
total $360 million - distributed by the reporting QSR companies with 
children's meals because, in those cases, the consumer purchased the 
toy when paying for the meal and thus the toy technically did not 
fall within the definition of ``premium'' used in the compulsory 
process orders.
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    In addition to presenting the study findings, the Commission made 
several recommendations in the 2008 report, including:
    (1) for companies that market food or beverage products to adopt 
meaningful nutrition-based standards for all products marketed to 
children under age 12, through all forms of advertising

[[Page 48073]]

and promotional techniques targeted to children;
    (2) for food and beverage companies to define ``marketing to 
children,'' for purposes of self-regulatory limitations, to encompass 
all advertising and promotional techniques, including: television, 
print, and radio; website, Internet, and digital advertising; word-of-
mouth and viral advertising; product packaging and retail promotion; 
movie and video promotion; use of premiums in connection with the sale 
of a product; product placements, character licensing, and cross-
promotion; athletic sponsorship; celebrity endorsements; and in-school 
marketing; and
    (3) for media and entertainment companies to limit licensing of 
their characters to healthier foods and beverages that are marketed to 
children.
    Further, the Commission indicated it would issue a follow-up report 
assessing the extent to which the 2008 report recommendations have been 
implemented and what, if any, additional measures may be warranted.
    The proposed study will seek information in keeping with the 2006 
study, including:(1) food industry marketing activities and 
expenditures targeted to children (ages 2-11) and adolescents (ages 12-
17) for calendar year 2009; and (2) marketing to youth of a specific 
gender, race, ethnicity, or income level. The Commission additionally 
proposes to gather nutrition information about products the companies 
marketed to children and adolescents in calendar years 2006 and 2009, 
to evaluate possible changes in the nutritional content, and variety, 
of youth-marketed foods. The Commission also proposes to seek 
scientific and market research exploring psychological and other 
factors that may contribute to food advertising appeal among youth.
    The FTC has the authority to compel production of this data and 
information from food, beverage, and QSR companies under Section 6(b) 
of the FTC Act, 15 U.S.C. Sec.  46(b). The Commission intends to send 
its information requests to the corporate parents of these types of 
companies to assure that no relevant information from affiliated or 
subsidiary companies goes unreported. Because the number of separately 
incorporated companies affected by the Commission's requests will 
exceed nine entities, the Commission will seek OMB clearance under the 
PRA, 44 U.S.C. Sec. Sec.  3501-3521, before sending any information 
requests.
    It should be noted that subsequent to this notice, any destruction, 
removal, mutilation, alteration, or falsification of documentary 
evidence that may be responsive to this information collection within 
the possession or control of a person, partnership, or corporation 
subject to the FTC Act may be subject to criminal prosecution. 15 
U.S.C. Sec.  50; see also 18 U.S.C. Sec.  1505.

II. Paperwork Reduction Act

    As required by Section 3506(c)(2)(A) of the PRA, the FTC is 
providing this opportunity for public comment before requesting that 
OMB approve the study. Under the PRA, federal agencies must obtain OMB 
approval for each collection of information they conduct or sponsor if 
the same information collection is posed to ten or more entities. 
``Collection of information'' means agency requests or requirements 
that members of the public submit reports, keep records, or provide 
information to a third party. 44 U.S.C. Sec.  3502(3); 5 CFR 1320.3(c).
    Specifically, the FTC invites comments on: (1) whether the proposed 
collection of information is necessary for the proper performance of 
the functions of the FTC, including whether the information will have 
practical utility; (2) the accuracy of the FTC's estimate of the burden 
of the proposed collection of information; (3) ways to enhance the 
quality, utility, and clarity of the information to be collected; and 
(4) ways to minimize the burden of collecting information on those who 
respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submission of responses. The FTC encourages recipients of the 2007 
compulsory process orders to offer suggestions on how the burden of the 
proposed collection may be reduced.

A. Description of the Collection of Information and Proposed Use

    The FTC proposes to send information requests to approximately 45 
parent companies of food and beverage and QSR companies in the United 
States (``industry members''). The companies that will receive these 
information requests are those selling the categories of food and 
beverage products that appear to be advertised to youth most 
frequently. Specifically, these categories of products will include: 
breakfast cereal; snack foods; candy, including frozen and chilled 
desserts; dairy products, including milk and yogurt; baked goods; 
carbonated beverages; fruit juice and non-carbonated beverages; 
prepared foods and meals; and restaurant foods. In addition, the FTC 
proposes to collect information from major marketers of fruits and 
vegetables to ensure that data and information are gathered regarding 
efforts to promote consumption of these foods among children and 
adolescents.
    The information requests will seek data and information regarding, 
among other things: (1) the types of foods marketed to children and 
adolescents; (2) the types of promotional activities\5\ used to market 
products to children and adolescents; (3) the amount spent to 
communicate marketing messages in measured and unmeasured media to 
children and adolescents; and (4) nutrition information (e.g., from the 
product's ``Nutrition Facts'' label). The Commission will provide 
information on an anonymous or aggregated basis, in a manner sufficient 
to protect individual companies' confidential information, to provide a 
factual summary of food industry marketing activities and expenditures 
targeted to children and adolescents. See 15 U.S.C. Sec.  57b-
2(d)(1)(B).
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    \5\ ``Promotional activities'' include use of traditional 
measured media (e.g., television, print, and radio), new media 
(e.g., website, Internet, digital advertising, word-of-mouth, and 
viral advertising), product packaging and in-store marketing, use of 
premiums, in-school marketing, and other traditional promotional 
activities (e.g., product placement, movie and video promotion, 
character licensing and cross-promotion licensing fees, athletic 
sponsorship, celebrity endorsement, and event marketing).
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B. Estimated Hours Burden: 12,250 hours

    The FTC staff's estimate of the hours burden is based on the time 
required to respond to each information request. The Commission intends 
to issue the information requests to approximately 45 parent companies 
of food, beverage, and QSR marketers. Because these companies vary in 
size, in the number of products they market to children and 
adolescents, and in the extent and variety of their marketing and 
advertising, the FTC staff has provided a range of the estimated hours 
burden for companies that market a single category of food products and 
for companies that market multiple categories of food.\6\
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    \6\ In response to the notice of proposed collection for the 
2006 study, the FTC received a comment from the Grocery 
Manufacturers Association suggesting that the burden on companies is 
more likely to correlate with the number of brands a company markets 
rather than the number of food categories in which it markets 
products. Nevertheless, the FTC believes its ranges for estimated 
costs, which are separated into single-category and multiple-
category company ranges, are sufficiently wide to account for 
differences in the number of individual brands the companies market 
in each category and in the amount of marketing the companies engage 
in for each brand.
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    Based upon its knowledge of the industries, FTC staff estimates, on 
average, that the time required to gather,

[[Page 48074]]

organize, format, and produce such responses will range between 140 and 
200 hours per information request for companies that market a single 
category of product to children and adolescents; thus, an average of 
170 hours. Staff further estimates that companies marketing multiple 
categories of products to children and adolescents would spend between 
200 and 600 hours to respond to an information request; thus, an 
average of 400 hours. The total estimated burden per company is based 
on the following assumptions:

Identify, obtain, and organize product               25-150 hours
 information,prepare response:
Identify, obtain, and organize                    50-200 hours\7\
 information on marketingexpenditures,
          prepare response:
Identify, obtain, and organize                       25-150 hours
 information on, andsamples of, marketing
 activities, prepare response:
Identify, obtain, and organize                        20-50 hours
 information regardingproduct nutrition
    information and healthy
 initiatives,prepare response:
Identify, obtain, and organize                        20-50 hours
 information regardingmarket research and
 marketing to youth of aspecific gender,
 race, ethnicity, or income level,prepare
                  response:
                     Total                          140-600 hours
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\7\ For companies that use substantial amounts of unmeasured media for
  advertising and promotional activities, the hours required to respond
  will be greater than for companies that utilize only small amounts of
  unmeasured media.

    The Commission intends to send information requests to 
approximately 25 parent companies that market a single category of 
product to children and adolescents. As a result, staff estimates a 
total burden for these companies of approximately 4,250 hours (25 
companies x 170 average burden hours per company). The Commission 
intends to send information requests to approximately 20 parent 
companies that market multiple categories of products to children and 
adolescents. As a result, staff estimates a total burden for these 
companies of approximately 8,000 hours (20 companies x 400 average 
burden hours per company). Thus, cumulative estimated burden is 12,250 
hours. These estimates include any time spent by separately 
incorporated subsidiaries and other entities affiliated with the 
ultimate parent company that has received the information request.

C. Estimated Cost Burden: $3,675,000

    It is difficult to calculate with precision the labor costs 
associated with the information requests, as the costs entail varying 
compensation levels of management and/or support staff among companies 
of different sizes. Financial, legal, marketing, and clerical personnel 
may be involved in the information collection process. The FTC staff 
has assumed that professional personnel and outside legal counsel will 
handle most of the tasks involved in gathering and producing responsive 
information, and has applied an average hourly wage of $300/hour for 
their labor. Thus, the staff estimates that the total labor costs for 
the information requests will be approximately $3,675,000 (($300 x 
4,250 hours for companies that market a single category) + ($300 x 
8,000 hours for companies that market multiple categories)).
    FTC staff estimates that the capital or other non-labor costs 
associated with the information requests will be minimal. Although the 
information requests may necessitate that industry members maintain the 
requested information provided to the Commission, they should already 
have in place the means to compile and maintain business records.

III. Instructions For Submitting Comments

    Interested parties are invited to submit written comments 
electronically or in paper form. All comments must be received on or 
before November 23, 2009. Comments should refer to ``Food Industry 
Marketing to Children and Adolescents Study: Paperwork Comment; Project 
No. P094511'' to facilitate the organization of comments. Please note 
that your comment - including your name and your state - will be placed 
on the public record of this proceeding, including on the publicly 
accessible FTC Website, at (http://www.ftc.gov/os/publiccomments.shtm.)
    Because comments will be made public, they should not include any 
sensitive personal information, such as an individual's Social Security 
Number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. Comments also 
should not include any sensitive health information, such as medical 
records or other individually identifiable health information. In 
addition, comments should not include any ``[t]rade secret or any 
commercial or financial information which is obtained from any person 
and which is privileged or confidential. . . .'' as provided in Section 
6(f) of the Federal Trade Commission Act (``FTC Act''), 15 U.S.C. Sec.  
46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing 
material for which confidential treatment is requested must be filed in 
paper form, must be clearly labeled ``Confidential,'' and must comply 
with FTC Rule 4.9(c), 16 CFR 4.9(c).\8\
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    \8\The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR 
4.9(c).
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    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comment 
in electronic form. Comments filed in electronic form should be 
submitted by using the following weblink: (https://secure.commentworks.com/ftc-foodmarketingPRA) (and following the 
instructions on the web-based form). To ensure that the Commission 
considers an electronic comment, you must file it on the web-based form 
at the (https://secure.commentworks.com/ftc-foodmarketingPRA) weblink. 
If this Notice appears at (http://www.regulations.gov/search/Regs/home.html#home), you may also file an electronic comment through that 
website. The Commission will consider all comments that (http://www.regulations.gov) forwards to it. You may also visit the FTC website 
at (http://www.ftc.gov/) to read the Notice and the news release 
describing it.
    A comment filed in paper form should include the reference ``Food 
Industry Marketing to Children and Adolescents Study: Paperwork 
Comment; Project No. P094511'' both in the text and on the envelope, 
and should be mailed or delivered to the following address: Federal 
Trade Commission, Office of the Secretary, Room H-135 (Annex J), 600 
Pennsylvania Avenue, N.W., Washington, D.C. 20580. The FTC is 
requesting that any comment filed in paper form be sent by courier or 
overnight service, if possible, because U.S. postal mail in the 
Washington area and at the Commission is subject to delay due to 
heightened security precautions.
    The FTC Act and other laws the Commission administers permit the 
collection of public comments to

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consider and use in this proceeding as appropriate. The Commission will 
consider all timely and responsive public comments that it receives, 
whether filed in paper or electronic form. Comments received will be 
available to the public on the FTC Website, to the extent practicable, 
at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of 
discretion, the FTC makes every effort to remove home contact 
information for individuals from the public comments it receives before 
placing those comments on the FTC Website. More information, including 
routine uses permitted by the Privacy Act, may be found in the FTC's 
privacy policy, at (http://www.ftc.gov/ftc/privacy.shtm).
    Section 6(f) of the FTC Act, 15 U.S.C. Sec.  46(f), bars the 
Commission from publicly disclosing trade secrets or confidential 
commercial or financial information it receives from persons pursuant 
to, among other methods, special orders authorized by Section 6(b) of 
the FTC Act, 15 U.S.C. Sec.  46(b). Such information also would be 
exempt from disclosure under the Freedom of Information Act. 5 U.S.C. 
Sec.  552(b)(4). Moreover, under Section 21(c) of the FTC Act, 15 
U.S.C. Sec.  57b-2(c), a submitter who designates a submission as 
confidential is entitled to 10 days' advance notice of any anticipated 
public disclosure by the Commission, assuming that the Commission has 
determined that the information does not, in fact, constitute 6(f) 
material. Although materials covered under one or more of these various 
sections are protected by stringent confidentiality constraints, the 
FTC Act and the Commission's rules authorize disclosure in limited 
circumstances (e.g., official requests by Congress, requests from other 
agencies for law enforcement purposes, and administrative or judicial 
proceedings). Even in those limited contexts, however, the Commission's 
rules may afford protections to the submitter, such as advance notice 
to seek a protective order in litigation. See 15 U.S.C. Sec.  57b-2; 16 
CFR 4.9-4.11.
    By direction of the Commission.

Donald S. Clark
Secretary
[FR Doc. E9-22670 Filed 9-18-09: 8:45 am]
BILLING CODE 6750-01-S