FOOD GIANTS TARGETED IN $2 BILLION LAWSUIT

Consumer Groups File 30-Day Notice to Force Changes in Advertising to Children

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WASHINGTON (AdAge.com) -- Consumer groups upset about food marketing to children are unveiling today a "last resort" legal attack, a $2 billion suit accusing Kellogg and Nickelodeon of engaging in unfair and deceptive "marketing and sale of food of poor nutritional quality" to children under 8 years old.
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Seizing on a Massachusetts consumer protection law that lets consumers sue on behalf of the state attorney general, the Center for Science in the Public Interest, the Center for a Commercial-Free Childhood and two Boston-area parents today said they are giving Kellogg and Viacom's Nickelodeon a required 30-day notice of an intent to sue and expect to proceed to court once the notice period expires.

Asking for changes in marketing
The notice asks for $25 each time a Massachusetts child under 8 saw a Kellogg's ad for "nutritionally poor" products; an ad on Nickelodeon for any company's nutritionally poor products; or Nickelodeon characters like SpongeBob SquarePants promoting nutritionally poor food over the past four years, a total that the suit claims could reach billions of dollars. The groups are asking for $1 billion from each company, but are offering to settle for changes in marketing, including a bar on the advertising of any food of poor nutritional quality on programming where at least 15% of the audience is under 8.

"Nickelodeon and Kellogg engage in business practices that literally sicken our children," CSPI Executive Director Michael F. Jacobson said in a prepared statement.

"In any other sphere of American life it would be considered creepy and predatory for adults to propose commercial transactions to toddlers and young children," Mr. Jacobson said. "Yet companies like Kellogg, Nickelodeon, and others have been doing it with impunity, and government has done nothing for decades."

At a press conference in Washington today to announce the notice, a former MTV Networks exec, Lisa Flythe, who served as director of commercial clearances for MTV Networks and vetted ads on Nickelodeon, also accused marketers of ignoring complaints about food marketing.

Institute of Medicine
Fast-food marketers have been accused directly by consumers of contributing to an increase in rising obesity rates in tort lawsuits that have drawn very little success, but the new state court consumer protection challenge could be easier. It has the advantage of coming six weeks after a government report from the Institute of Medicine that offered some added weight to charges that food marketing plays a role in underage obesity.

The December report issued by the Institute of Medicine gave marketers and kids entertainment companies two years to forge “an agenda to turn beverage and marketing toward better diets” before the government would institute federal regulations. A Nickelodeon executive said it has been part of the process from the beginning and has been making progress.

About three years ago Nickelodeon instituted a “Let’s Just Play” campaign to promote healthier lifestyle and more activity. As part of the campaign, the company also sought licensing deals that put its marquee character, SpongeBob, on packages of spinach, carrots and other fresh produce.

“We have not been served with any legal papers,” a Nickelodeon spokeswoman said. “That said, Nickelodeon has been and acknowledged leader and positive force in educating and encouraging kids to live healthier lifestyles, as well as in the ongoing process of encouraging advertisers to provide more balance in their offerings and we will continue to do so.”

"Kellogg is proud of its products and the contributions they make to a healthy diet," a Kellogg spokeswoman said. "We have a longstanding commitment to advertising in a responsible manner and our messages accurately portray our products. We just learned about this issue and have no further comment at this time."

Kellogg's portfolio approach
In part because it was founded on the basis of wellness foods, Kellogg has been slow to respond to the growing number of critics in terms of both product changes and public relations. While Kraft and PepsiCo, especially, have attempted to dodge litigation by asserting boldly the many initiatives they have under way to combat childhood obesity and avoid advertising to young children, Kellogg and executives close to the cereal leader have maintained confidence in the nutritional profiles of existing products and the notion of a "portfolio approach" that offers consumers both one-third less sugar alternatives (few choose them) and the full-sugar varieties.

"Kids and moms still want fun," one executive close to the company said in response to Kraft's move last year to restrict advertising of all but its sensible solutions products to children. One executive close to the company said, in fact, that Kellogg only recently created a dedicated health and wellness division to focus more attention on expanding its Kashi and Morningstar Farms brands.

Appropriate quantities
Food and marketing groups have maintained any food eaten in appropriate quantities can be part of a healthy diet and note a lack of official definition of "junk food." They also contend breakfast cereal can be more healthy than some other breakfast alternatives, and that parents, not children, buy the products and have ultimate control.

The consumer groups argue that advertising makes parents' job of restraining their children's choices nearly impossible and that advertising, especially to younger children, by its nature is unfair.

"Studies show that children under 8 do not understand the persuasive intent of commercials and are particularly vulnerable to messages," the 30-day notice says.

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