Senate and House members asked for the assessment Thursday as part of the massive spending bill that will keep the federal government running past Friday.
The administration’s proposal aims to tackle childhood obesity by having the industry market to children only those foods and drinks that make a “meaningful contribution” to a healthful diet and limit sodium, fats and added sugars. Foods that do not meet the guidelines could not be advertised to children.
The administration has stressed repeatedly that the plan is voluntary and meant to serve only as a guideline. But the industry says the initiative amounts to a backdoor regulation that will in effect wipe out advertising to children, eliminate millions of jobs and infringe on commercial free speech.
The spending bill rider bars the Federal Trade Commission, the lead agency on the food marketing initiative, from spending money on finalizing the proposal until the agency and its partners comply with an executive order signed in January by President Obama.
That order spells out general principles for regulators, including the need for them to use the best science, allow for public participation, identify the least burdensome methods for achieving their goals and consider the benefits and costs of the regulation.
Consumer advocates say that the agencies that crafted the proposal — including the Food and Drug Administration, the Department of Agriculture, and the Centers for Disease Control — have met all the criteria except for the cost analysis.
That type of analysis doesn’t make sense given that the guidelines are voluntary, said Margo Wootan, director of nutrition policy at the Center for Science in the Public Interest.
“There are no mandatory requirements and there are no mandatory costs,” Wootan said. “I think the industry’s hope is that this will kill the food marketing guidelines, but it shouldn’t. It should just delay them.”
Critics of the plan have been pushing for regulators to consider what it would cost to reformulate the products under the proposal. They also say the administration has failed to make a direct link between the marketing of products and childhood obesity.
Some in the industry say they expect the newly adopted language in the spending bill to have a chilling effect on the initiative.
“What this clearly signals is the continuing significant concern from the Hill about the proposal,” said Dan Jaffe, executive vice president for government relations at the Association of National Advertisers. “When your appropriators say: ‘Don’t go forward in this direction’ . . . that is a very serious signal to the agencies.”
The agencies already had started to water down their original proposal. The FTC initially aimed to restrict ads to children ages 2 to 17, vastly expanding the industry’s self-imposed 2 to 11 age limit. But in a recent statement to Congress, David Vladeck, director of the FTC’s Bureau of Consumer Protection, said it would not be necessary to encompass children ages 12 to 17.
Even so, Rep. Jo Ann Emerson (R-Mo.), who wrote the rider, said in a statement, “If this report will do more harm than good, then I would like to know before the report is published rather than after it has cost us jobs and productivity in our U.S. economy.”