Why the Happy Meal is a crime—and not just a culinary one

This is a guest blog post by Michelle Simon. It originally appeared on Grist.

When it comes to food, everybody’s got an opinion. Same goes for parenting. Mix the two together and you’ve got the makings of a culture war. Witness the recent scuffle between Sarah Palin and Michelle Obama over the White House’s rather tame Let’s Move campaign aimed at ending childhood obesity.

So last month, when the Center for Science in the Public Interest announced it was filing a class action lawsuit to stop McDonald’s from using Happy Meal toys to market to children, the fierce and ugly backlash against the mother of two who was brave enough to attach her name to the case was predictable.

But I am not interested in debating good or bad parenting. Nor am I interested in arguing over whether this lawsuit is a good idea. How many calories are in a Happy Meal and whether you can ask for carrots instead of fries is irrelevant to me. I am not even going to give you all the scary data about how America’s kids are getting fatter and sicker. Nor do I care whether the cause is fast food or video games.

That’s all been done. Instead, let’s talk law. Because that minor detail seems to have eluded most of the national conversation about how food companies market to children.

Our legal system does not allow marketers to advertise just as they wish, either to children or adults. We have consumer protection laws because marketers aren’t exactly trustworthy. From time to time, they’ve been known to stretch the truth.

That’s why both at the federal and state levels, the law requires that advertisers not engage in deceptive marketing. Otherwise, they would have an unfair advantage over consumers. In other words, the law aims to provide a level playing field between the two parties. The key legal terms here are “deceptive” and “unfair.” Bear with me; I am saving you three years of law school and a grueling bar exam, not to mention years of debt.

Now, what about marketing to children? Ample science, along with statements by various professional organizations tells us that marketing to young children is both deceptive and unfair. Why? Because young children simply do not have the cognitive capacity to understand that they are being marketed to; they cannot comprehend “persuasive intent,” the linchpin of advertising. Here’s how the nation’s trade group for kids’ doctors puts it: “The American Academy of Pediatrics considers advertising directly to young children to be inherently deceptive, and exploits children under the age of 8 years.”

So, if advertising to young children is inherently deceptive, and deceptive advertising is illegal under federal law and in most states, how is it even happening? And doesn’t this mean that not just food, but all marketing to young children is currently illegal? I get this question a lot. The answer is yes.

It may seem unsettling to imagine so much illegal activity going on every single day, but it’s really not that unusual. The marketplace is chock-full of deceptive advertising that goes unchallenged — aimed at both adults and children. It’s the reality of a free marketplace and a government that lacks both the political will and resources to properly enforce the law. That’s why we sometimes need lawsuits to fill the void left by government agencies.

Now I am sure you legal eagles are just waiting to throw the First Amendment in my face. You’re thinking, but doesn’t free speech protect McDonald’s right to advertise? Yes and no. When it comes to kids, mostly no.

While the food industry likes to wrap itself in the Constitution, the truth is that the free speech clause under the First Amendment is not a blank check to advertise anywhere, anytime, or to anybody. Free speech protection must be balanced against other considerations, such as deceptive advertising. We have plenty of examples of the federal government stepping in to stop shady marketing claims, such as skin patches causing weight loss. Marketers cannot lie: that is not free speech. Thus, if advertising to small children is “inherently deceptive” it cannot be protected under the First Amendment.

Lest you think I am just some crazy activist lawyer who’s making up her own legal theories, I am not alone. In 2005, I coordinated a legal symposium on food marketing to children. Angela Campbell, professor of law at Georgetown University Law Center, wrote a compelling article in which she called on Congress to prohibit product placement and cartoon characters to market junk food to children. She argued that the First Amendment would not be a barrier to such a law because it does not protect deceptive marketing.

Last year, Jennifer Pomeranz, director of legal initiatives at the Rudd Center for Food Policy and Obesity at Yale University, published an article making a similar argument calling on the Federal Trade Commission to protect children from food marketing.

But if you still think that protecting kids is all up to parents because they are actually purchasing the Happy Meals, I asked Steve Gardner, litigation director at the Center for Science in the Public Interest and architect of the lawsuit, to respond to this argument.

His answer was simple and elegant: “Just because it’s possible for a parent to intervene doesn’t change the fact that what McDonald’s is doing is illegal.” In other words, there are often many ways that parents can act to protect their children but that doesn’t make it OK for others to break the law.

And that is exactly what McDonald’s is doing, until someone stops them.

Michele Simon is a public health lawyer specializing in industry marketing and lobbying tactics. She is the author of Appetite for Profit: How the Food Industry Undermines Our Health and How to Fight Back, and research and policy director at Marin Institute, an alcohol industry watchdog group. She is grateful to live in Oakland, Calif., within walking distance of a farmers market. You can follow her on Twitter.

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  • shris

    Thank you for that.

    As a parent of two small children who watch TV and accompany me to the store, I struggle with marketing regularly. Having an advertising major in college gives me a little more perspective on the issue.

    “Just because it’s possible for a parent to intervene doesn’t change the fact that what McDonald’s is doing is illegal.”

    That is so succinct. I am grateful.

  • http://www.foodieformerlyfat.com Foodie, Formerly Fat

    My daughter is six years old and when we go to the grocery store together and she sees a product with a cartoon character on it she used to as for it. I’ve made a concerted effort to explain to her that the food is junk and why. We read labels together and she understands what real food is versus an “edible food-like substance”. I would have done this anyway, because I am an avid ingredient list reader. I consider it a teachable moment.

    But at the same time, it really gets exhausting to have to combat desperate pleas for chemical laden junk food just because there is a cartoon character they recognize on the box! I try to compromise by buying things like sandwich bags with the cartoon characters instead. But, it would be so much better if I didn’t have to fight against Dora and Diego every time we go to the store for milk!

  • http://www.feedyourheaddiet.com Ken Leebow

    Interesting commentary.

    If you’d like to hear the food industries approach to this, I highly recommend watching this video. Many of the players are interviewed. It’s from 2003 and of course, nothing has changed … http://bit.ly/ex7Jw2 except, maybe it’s gotten a little worse.

  • Holly Scott

    “Bear with me; I am saving you three years of law school and a grueling bar exam, not to mention years of debt.”
    Gee, thanks. NOW you tell me!

    The problem I see here is that you make use of logic, instead of rhetoric. No one will buy it.

  • Stephanie

    I was surprised when my child went to pre-k last year the school had a visit from Ronald McDonald. My son asked me to go there everyday for a month. It isn’t my favorite place and we do go as a treat, but getting it pushed by a clown at his school is way over the top for me. Of course, when I was a kid they had the book it program and every time you read a book you got a sticker that helped you buy pizza from pizza hut, so I guess things haven’t changed.

  • Jason

    This article is wrong on so many levels. Instead of saving me “three years of law school and a grueling bar exam, not to mention years of debt” just present the facts in in a rational argument.

    The authors pulls a logical slight of hand claiming that consumer protections from deceptive marketers lying to sell their product is the same as children’s lack of cognitive abilities to understand they are being marketed to.

    If I claim my super-duper weight loss patch causes you to lose as much weight as you want while reducing the effects of aging and it’s not true, then I have made a false claim. I am then a deceptive marketing using illegal tactics. If, on the other hand, I use a cartoon character to market my products and include a small toy then I have not made any claim and not deceived anyone. The point of illegal marketing practices is to reduce a business from making a claim that they know isn’t true in order to sell their product. In short, marketers cannot lie.

    The author’s says marketing to children is “inherently deceptive” because children lack the cognitive power to understand they are being marketing to. I agree with this, by the way, but the fact remains, there McDonalds is not lying to children. You have to lie to be a deceptive marketer.

    Moreover, the author fails to distinguish between ALL child marketing and SOME child marketing, singling out McDonalds. If we ban all marketing to children then we must not distinguish them on whether or not we agree with the product or service.

    Desirable things are marketing to children using cartoon character just the way McDonalds uses Ronald. Just because I don’t like McDonalds doesn’t make him illegal. I grew up watching Sesame Street because they had funny characters like Big Bird and the Count and, as a result, learned many useful things. Using cartoon characters to help kids learn is the same as McDonalds using Ronald to sell Happy Meals.

    End Rant. :)

  • http://www.thefrugaldietitian.com Nancy-The Frugal Dietitian

    Of course if the consumer doesn’t buy it – they won’t sell it!!

  • Clem

    I’m mixed about this one, since I think it’s important to eat right. On the other hand, I am very much in favor of freedom. Think about it, if you prevent McDonald’s to stop marketing to children… then we should stop Cereal to have anything catchy to kids, store flyers shouldn’t advertise toys, Commercials on TV to stop hero’s…goes on and on. It’s time parents take responsibility. Teach kids moderation, get them off their buns from watching TV and playing on the computer, encourage them to play some sport. I laugh whenever I get a child over at my house who’s parent is an extremest against sweets, etc…they want to gorge!
    Remember healthy restaurants, food providers can advertise too :)

  • Tom Hayes

    Is this really a battle you want to fight? If you are a parent, teach your child according to your own values. They need to learn that many choices exist in the world. Each of us must make choices about what to buy or not buy and where to shop or not to shop. Show your kids how you make choices and teach them why you choose as you do.

  • Cactus Wren

    @Jason
    “The author’s says marketing to children is “inherently deceptive” because children lack the cognitive power to understand they are being marketing to. I agree with this, by the way, but the fact remains, there McDonalds is not lying to children. You have to lie to be a deceptive marketer.”

    And when McDonald’s says to children, in essence, “Ronald McDonald wants you to buy this”, McDonald’s IS lying to children — because Ronald McDonald, being as he is a *fictional character*, gives not a damn whether a child eats Happy Meals or grilled veggies and hummus. But a child under eight can’t fully comprehend that Ronald McDonald is a fictional character, and the marketing people at McDonald’s know this perfectly well. Telling a small child “Ronald McDonald wants you to buy this”, knowing that the child will believe this lie, *is* inherently deceptive.

  • Jason

    @Cactus Wren

    What is McDonalds lying about?

    McDonalds must make a claim that they know is false to lie.
    The recent law suit against Taco Bell is a perfect example: IF McDonalds claims their hamburgers are 100% ground beef and it turns out they are less than that or they are made from pork then they are lying.

    McDonalds hasn’t done this.

    They use a mascot to advertise to kids but a lot of companies use similar mascots. Using muppets to help children learn because children would rather listen to a muppet than a teacher is no different from McDonalds’ Ronald McDonald to sell Happy Meals.

  • Sketch

    Why are people going after the COMPANIES and NOT the PARENTS? It’s not corporate america’s job to raise YOUR kids. Its YOUR job. Parents need to stop shirking their responsibilities. If your kid is FAT, its YOUR fault, not McD’s or PizzaHut’s or whoever. It’s YOUR fault.

  • charlotte

    Finally, I feel like I’m not alone and I’ve been waiting patiently for someone to bring up this point–> “Why are people going after the COMPANIES and NOT the PARENTS? It’s not corporate america’s job to raise YOUR kids. Its YOUR job. Parents need to stop shirking their responsibilities. If your kid is FAT, its YOUR fault, not McD’s or PizzaHut’s or whoever. It’s YOUR fault.”

    As a single mother, I’ve worked long and hard to raise my child and by raising, I mean teaching, because that’s exactly what parenting is *teaching*. I cannot put the fate of my child in a corporation’s hand and expect said child to learn the right, wrong or indifferences of life, it is MY responsibility NOT someone else’s.

    @cactus wren, I’m having a great deal of difficulty wrapping my head around your comment “Telling a small child “Ronald McDonald wants you to buy this”, knowing that the child will believe this lie, *is* inherently deceptive.” I’d like to know how/when our Gov’t became the social advocates for our children? Heaven help us if this is what’s to come! My daughter quickly learned (without raising my hand or voice) that no meant no, just as I was respectfully raised. Where is it written that a parent can no longer say no to their child?? We don’t need Gov’t intervention or class action law-suits against fast food giants like McD’s, we need to focus on family, education and good common sense in raising our children, in the hopes that they too, will proliferate and pass this common sense on to their own children some day.

    I guess I’m asking too much from society?!?

  • Connie

    so by extension, NO products that are designed for children can be marketed, advertised, and by even some stretch of though sold. (because I have a feeling even if Happy Meals were no longer allowed to be advertised/marketed there would still be those who feel they were “illegal” as claimed here)

    When does it becaome a product for children and when does it become a crime? All the Pokemon and what nots out there are advertising to kids. Is that a crime? how about advertising for car seats? or clothes? Pull ups? I mean really, where do you draw the line?

    I also believe it is the job of the parents, and not a job of goverment. Deceptive by lying should be regulated yes, deceptive because they slap a cartoon charater on it, no.

  • Sketch

    How is marketing to kids “illegal”? by law, Kids can’t have jobs, and have no money of their own. Companies market to kids because they RELY on parents being weak when it comes to the desires of their kids – what they WANT, not what they NEED. Sadly, they are correct – and parents are just as gluttonous as their kids are. Now it seems that those same parents who can’t say “no” to their kids can just as easily write a check to a lawyer.

    personal responsibility in the country is dead – and has been for some time now.

  • Jason

    @Sketch
    You correctly outline marketing tactics: kids bug parents, parents give in. ;) While I think there’s a need for personal responsibility we need to be cognizant about how children perceive marketing messages. Thus, I straddle the line on this debate. I think marketing to kids is tricky because children don’t view the messages like adults. If choosing between NO advertisements to children (or even using sweet alcoholic drinks to market to teenagers) I’d jump into the “responsibility boat.”

  • Sketch

    Jason :
    …If choosing between NO advertisements to children (or even using sweet alcoholic drinks to market to teenagers) I’d jump into the “responsibility boat.”

    By that I will take you to mean the PARENTAL responsibility boat. companies of ALL sorts market to kids – not just alcohol, or cigarettes, etc… why does no one complain about TOYS being marketed to them? because their PARENTS have to buy it for them. It is the responsibility of the PARENTS to TEACH *gasp* their children, NOT society’s. It is and should be the OPTION of the company who, when and where to market to, and it is and should be the responsibility of the parents to answer questions and protect their children.

  • charlotte

    If I can add a last comment to this subject, it would be this:

    I am a generation X’er who grew up on Sesame Street and Saturday morning cartoons, which by the way was a weekly ritual for me as a child. For arguments sake, lets just say that I immortalized Scooby-Doo and Bugs to the point of encyclopedic knowledge. Sans Sesame Street, Saturday morning was nothing but a plethora of commercials chuck full of infinite sugary cereals, snacks, fast foods and every inconceivable toy too numerous to name.

    The marketing gurus salivated at their target audience, which by the way were *KIDS*. And in some strange way (40+ years is a long time ago), I knew then that I could not/would not/don’t even mention it/ask about it/ approach my parents and ask if we could buy any of those products. Although my folks relented on a few toys (and I do mean a few), I grew up envying all my friends who’s parents let their kids each Fruity Pebbles, Lucky Charms and/or Pop Tarts! I felt like I was the only kid in the world with the most rotten parents in the world!

    My point is this: my parents said “NO” and I LISTENED -turns out I didn’t miss a thing! And guess what naysayers, I got over my “humiliation”, cause that’s what responsible parents are for! Oh yeah, I absolutely reveled in humiliating *gasp* my child any chance I got! PS: I grew up hating cartoons and my kid loves coming with me to our local farmer to buy our raw milk, meats and veggies. Isn’t it amazing what a little word like “no” can do for the soul!?

  • Jason

    Sketch :

    Jason :
    …If choosing between NO advertisements to children (or even using sweet alcoholic drinks to market to teenagers) I’d jump into the “responsibility boat.”

    By that I will take you to mean the PARENTAL responsibility boat. companies of ALL sorts market to kids… It is the responsibility of the PARENTS to TEACH *gasp* their children, NOT society’s. It is and should be the OPTION of the company who, when and where to market to, and it is and should be the responsibility of the parents to answer questions and protect their children.

    Exactly! Although I would add government to the list, “It is the responsibility of the PARENTS to TEACH *gasp* their children, NOT society’s, NOT government’s.”

    Almost ALL companies, whether “good” or “bad” use cartoon mascots to market to kids. We cannot unfairly single out one company just because we don’t like the message.

    • Danadhorace

      I feel the same way you do. Now that your child has become fat you want to take the toy out of my son meal. Tell your child no and mean it.

  • Jason

    charlotte :
    I grew up envying all my friends who’s parents let their kids each Fruity Pebbles, Lucky Charms and/or Pop Tarts! I felt like I was the only kid in the world with the most rotten parents in the world!

    It’s tough to be a parent but sometimes the hard choice needs to be made.

    I imagine a lot of parents feel bad when their kids yell, “I hate you, Bobby gets to eat Happy Meals.”

    • Cindy

      I said the same thing and my parents replied ‘Go and be their kids then.’ 

  • charlotte

    @Jason
    Jason, in the immortal words of my mother, to wit: “you’ll get over it” and we certainly did!

  • Phlebot20sc

    Blaming fast food for obesity is insane, for those who control what they consume. I have two kids and im the one whos is the PARENT. Thats like saying lets get rid of gas stations because oh no they have candy at kids eye level. Grow up

    • tanna

      Did you actually read the full article?

  • Sarah

    This is such an important issue, thank you for posting this. I started thinking about this issue a couple of years ago when I realized that the childhood obesity epidemic is incredibly dependent on fast food marketing. I heard about this great campaign called Value [the] Meal that is challenging McDonald’s and the fast food industry to stop aggressively marketing to kids. This issue is not about parental choice, it’s about giving our kids the opportunity to grow up in a safe and healthy environment in which marketing to children is no longer an easy way for corporations to make a profit.

  • Prophetpoetic

    This is typical bleeding-heart propaganda from a liberal woman. Your argument is made invalid the moment you turn your observation on McDonald’s like a trained attack dog. You might say this is hyperbole, but the example you put forth seems to urge cartoons, toys and virtually anything else children enjoy into a socialist box, in which “informed” women like you make all the decisions for everyone. Somebody stopping McDonald’s? Please, for attempting an intelligent opinion you sure did fail. Consumers shape the market. I don’t care if you wrote a symposium, that doesn’t save you from being narrow-minded and ignorant to reality. Please get over yourself, the article you wrote is like a self-important biography of your personal “success”. Try coming up with a valid argument instead of dropping names like having a morons who agree with you suddenly vindicates your wrong, backward, truly biased point of view. If women like you spent more time in the kitchen, McDonald’s wouldn’t have sold over a billion burgers.

    • Kyrie321

      Oh please. Mcdonald’s sells millions of burgers because they’re convenient, not because fewer women spent time in the kitchen. If you disagree so vehemently, why don’t you spend time deconstructing the argument instead of attacking the person who wrote it? That would be infinitely more intelligent and useful.

    • Kay Rubb

      Wow.  I don’t even agree with the original post, but you just made yourself look like a moron.  Your rebuttal is a rant, not an intelligent debate. 

    • U MAD, replyers?

      Can’t tell if trolling… LOL