In the midst of the great depression, when American moral was at its lowest, Shirley Temple lit up the big screens.^[1] The 1930s were filled with her precious face and catching voice. Shirley Temple was America’s child and demonstrated the sprit that American’s wanted to possess.^[2] As she graced film-to-film and caused smile after smile, childhood obesity was one of the last things on the minds of her fellow Americans. Because of the Great Depression and the fear of a lack of food on the table, her vitality and health likely inspired viewers, rather than concerned them.

Despite Shirley’s following, the first childhood obesity clinic was founded in America at Columbia University in 1930s.^[3] Hilde Bruch was a German physician who was shocked by the size and weight of children in America, when she arrived in 1934.^[4] Her obesity clinic was innovative and beyond the times.^[5] Today, however, America is faced with such a problem with childhood obesity that Bruch now seems to be some sort of visionary with incredible foresight.

The screens of the twenty-first century are no longer graced with the infectious smile and voice of Shirley Temple, but are instead burdened by the presence of Honey Boo Boo Child, and her more than 300-calorie “go-go juice” and pure sugar “pageant crack.”^[6] Childhood obesity is no longer a problem beyond the times nor is it a thing of the future, but it is an epidemic that affects more than one third of the children in America.^[7]

In the eighty-four years of Shirley Temple’s life, childhood obesity has more than tripled.^[8] The obesity rates in urban areas are nearly ten percent higher due to heavier meals and limited access to healthier foods.^[9] The drastic influx and increasing numbers in childhood obesity leave little room for optimism in the future of America. Instead, the children of America have increasing problems with high blood pressure, high cholesterol, diabetes, joint problems, sleep apnea, and social problems.^[10] They may live to see eighty-four years like Shirley Temple, but those years are sure to be burdened by the long term effects of their childhood obesity, like heart disease, stroke, obesity driven cancer, and adult obesity.^[11]

Children are our future and our most precious assets. All of the statistics and depressing predictions force us to ask why. What have we done to cause our most scared group of people to have such problems with their weight?  More importantly though, what can we do to fix the problem? Part I of this paper will discuss the cause and how we got here to this point, how we got to the 1/3. Part II will identify and consider what is being done to fight the epidemic and the success of those methods. Finally, Part III discusses a solution. Not an easy fix, but one similar to the Family Smoking Prevention and Tobacco Control Act, which would require Federal action, with the ultimate power given to the states. Part III has a Louisiana focus, as we have to start somewhere and why not begin in a state that is one of the fattest states in the nation, with an obesity rate of roughly 30%?^[12]

Part I: How We Got Here

There are many things to blame for our increasing rates of childhood obesity, some more damaging than others.^[13] The technology advances that are a huge source of American pride are largely to blame. Children today spend roughly six hours a day in front of the television and the computer, combined.^[14] There is little room left for imagination and absolutely no need for the outdoors. The time children spend sedentary is alarming, but physical activity alone will not fix the problem. Perhaps more concerning is what children see and what they are exposed to while sedentary.

Advertising and the Media

Advertising is the main marketing tool for the food industry.^[15] Roughly one billion dollars is spent each year on media advertising directed towards children.^[16] In the roughly 2,000 hours that children spend in front of the television and computer each year, they see roughly 20,000 to 40,000 commercials.^[17] Upon completion of high school, each child has been exposed to 360,000 advertisements.^[18] Food is the most frequently advertised product for children and children view a food advertisement roughly every five minutes of television viewing.^[19] There are often no ads advertising fruits and vegetables, and at least half of the ads seen by children each day are for products with a high sugar and fat content.^[20]Even more disturbing though, nearly every four-year-old can identify more than 100 brands.^[21]

The statistics beg the question: is advertising to children legal? Generally, the First Amendment of the United States Constitution protects advertising.^[22] Speech is almost always protected unless it is inherently misleading or deceptive.^[23] Misleading and deceptive speech is only protected if the government can show that the advertising “directly advances a substantial state interest, and is no more extensive than necessary to advance that interest.”^[24]

With the Constitutionality of advertising in mind, it seems as though the First Amendment protects food advertising. Most food commercials show the product and discuss its features, always appealing to a particular market. An advertisement for Kellogg’s Rice Crispy treats that says, “they are never too big for a little something sweet,”^[25] is technically not misleading. Instead, it just reminds its audience that Rice Crispy Treats are for everyone.

However, there are essentially two problems with children and the Constitutionality of advertising. First, food companies hire psychologists to help them market to a particular consumer, with a special emphasis on children.^[26] The psychologists hired for marketing purposes spend their time analyzing which commercials and food appeal to children, in order to increase the sales of a particular product.^[27] Essentially this means that the commercials that kids see are made for them and are intended for them to react. This intrusion on children’s psyche leads to the second problem with advertising directed toward children, the cognitive ability of children.  As stated above, the First Amendment of the United States Constitution protects advertising. Advertising if it is not inherently misleading or deceptive, but if billions of dollars are spent each year advertising to children, then their ability to perceive should be taken into account in order to determine if the advertising is misleading.^[28]

The underlying issue is that most children under the age of eight are unable to distinguish and advertisement from the actual television program.^[29] In other words, most children under the age of eight do not notice that the rice crispy advertisement is not part of Dora the Explorer.^[30] The rice crispies instead seem as though they are part of the show, are inherently truthful, and are thus, endorsed by Dora herself.^[31]

Even if a child is able to distinguish a commercial from the television program, it is not likely that the child is able to identify the commercial as persuasive.^[32] The child is not aware of the intent and persuasive nature of the commercial and is unable to discern for himself if the product is worth purchasing it.^[33] It is a automatic youthful trigger for a child to see a commercial and un-informatively assume that the commercial is truthful and worthy. Why else would it be on television? Children are unaware of biases and have no reason to not trust what they see.^[34] It is not until about the age of twelve, that children are able to acknowledge and discern that the commercial is exaggerated, and may include “puffery.”^[35]

Therefore, while advertising in general is protected by the Constitution and may only be regulated if it is inherently misleading or deceptive, the audience should be taken into account to establish the deceptiveness of a commercial. A child, under the age of twelve, has a lower cognitive level and a smaller knowledge base, making deception easier. Children are not aware that they are being misled and more importantly, they are not aware that their lack of knowledge and Constitutional protection is what is making them fat.

While the Constitutionality of advertising targeted to children is clearly questionable, marketers use advertising to grab the attention of children every day. Sadly, the targeted advertising is effective.^[36] Children are affected by the advertising and it is clearly a contributor to the one third.

Shopping

Advertising and product persuasion do not only occur on television.  As an effect of the depression and Shirley Temple’s early years, generally both parents work outside of the home and children go everywhere.^[37] In fact, most children are exposed to advertising on a daily basis in grocery and convenient stores.^[38] Grocery shopping has become a family experience and most children accompany their parents to grocery stores.^[39] Shopping is an excursion of sorts, and twenty first century marketers have responded accordingly, as children are an “economic force.”^[40] Marketers now ensure that their store is welcoming to children with age appropriate advertising, items reachable to children, and kid-friendly distractions.^[41]

Grocery stores now make a conscious effort to ensure that their facilities are accommodating to parents with their children in tow.^[42] If stores are not so accommodating to parents with their children, then parents will simply not frequent those establishments.^[43] This includes wide aisles and a shopping area with a lack of steps.^[44] They also pair necessities with particular products.^[45] Many parents need baby food and children’s’ products.^[46] Thus, marketing advisors for Chips Ahoy may suggest partnerships with the marketers of baby food.^[47] A parent needing baby food may suddenly find a need for chocolate chip cookies or the older child may insist a need.^[48]

Additionally, as grocery store excursions are now seen as mini vacations for children, children are often most enthusiastic.^[49] The parents may actually be the one purchasing the product, but the child makes the decision.^[50] If a child responds to a toy, the parents will purchase.^[51] However, a child cannot be the enthusiastic shopper if they cannot see it.^[52] If children can see the product and reach it, the grocery store has officially been successful and the child will embrace the product.^[53] Furthermore, if the parent can get the shopping done successfully with the child occupied, the grocery store has again achieved its goal.^[54] This tactic goes from lollipops at bank counters to crayons in a professional’s office.^[55]

When one goes to the grocery store to pick up the items on a shopping list, the strategy of the grocery store and its marketers is not usually considered. For the average shopper, the bread is where it is and the milk is where it is merely because of logistics. Yet, this is clearly not the case. Groceries are in specific locations because of marketing and children are clearly targeted. Children, as those with little to no money, are considered and their health is suffering because of it. Grocery stores are just another element contributing to the one third.

Advertising and Fast Food

While some children today have never tasted a McDonald’s Hamburger, they undoubtedly know what it is and could likely identify it from a series of pictures.^[56] This ability to identify is solely the result of fast food advertising, from media advertisements to billboards.^[57] The average child, between the ages of two and seventeen, views three to four ads for fast food every day.^[58] A recent study indicates that viewing fast food produced images directly impacts childhood obesity.^[59]

In recent years, fast food restaurants have started advertising healthier meals with fewer calories and healthier options, like apple slices.^[60] Children’s French fry servings are now smaller and chicken nuggets have less sodium.^[61] Unfortunately though, while choosing to advertise healthier choices, both McDonald’s and Burger King have actually increased their television adds to offset their losses with the healthy choices.^[62] In addition, neither Burger King nor McDonald’s encouraged consumption of the healthier options.^[63] Instead, the healthier options were mentioned, but brand loyalty and give-a-ways were at the hearts of the commercials.^[64]

Most frightening though, is that the advertising is effective.^[65] Nearly ninety percent of parents report that they take their children to fast food restaurants at least once a week.^[66] Almost seventy percent of those parents admitted to bringing their children to McDonald’s once a week.^[67] Twenty percent of preschoolers ask to go to McDonald’s every day.^[68] Unfortunately, only twelve out of 3,039 meal choices at fast food restaurants meet the nutrition criteria for children set out by the CDC.^[69]

Fast food restaurants have continuously had attention for the lack of nutritious value in their meals, especially with regards to children. The efforts to provide healthier options have not gone unnoticed, but the disappointing effects have had an even bigger impact.^[70] In response to negative feedback, McDonald’s claimed in early 2012 that advertising toward children is where their success lies and they will continue to exercise their ability to freely advertise, leaving the decision up to the people.^[71] Unfortunately though, as discussed above, children do not have the ability to distinguish advertising from regular programming and are unable to distinguish any advertisement, even a billboard, as having persuasive content.^[72] Parents are fighting a losing battle with the fast food advertisers, as the advertisements are undoubtedly more persuasive and parents do not have the resources available to them that are available to advertisers.^[73] No parent is as cool and persuasive as the fast food jingle and the larger-than-life hamburger.

PART II: What is Being Done

Several states have implemented plans and proposals to combat obesity in general.^[74] The focus is on adult obesity, with New York and Los Angeles leading the pact.^[75] In 2008, in response to its nearly 900 restaurants and thirty percent adult obesity rate, Los Angeles adopted legislation prohibiting the building of new fast food restaurants in a thirty-two square-mile area.^[76] The original fast-food zoning ban expired in early 2010, but was renewed and amended in 2010, creating a broader ban.^[77] The amendment restricts permits for stand alone fast-food restaurants and forbids the building of a stand alone fast-food establishment within half of a mile of an already existing fast-food restaurant.^[78] Unfortunately though, while some government actors and entities, like those in Los Angeles, have decided to promote food other than fast food, fast food, others have backtracked.^[79] The 2012 Olympic Park in London featured McDonald’s biggest outlet yet.^[80] While Los Angeles attempts to limit fast food establishment, McDonalds was one of the only options for the eager Olympic goers and advertising during primetime during the weeks of the Olympics.^[81]

 The year 2012 has been an active year for Mayor Bloomberg and New York City. Mayor Bloomberg has made it one of his personal missions to take on obesity and the growing rate of heart disease.^[82] He has championed several public health missions, including smoking in bars and parks, posting of calorie counts on chain restaurant menus, and persuading new mothers to breast-feed.^[83] Recently, Mayor Bloomberg proposed a ban on sixteen-ounce soft drinks at restaurants and other establishments, which was approved by the New York City Board of Health in September 2012.^[84] While Mr. Bloomberg believes that his proposal is the “single biggest step…taken to curb obesity,” the initiative has received serious criticism.^[85]

Most believe that the ban on the sixteen-ounce soft drinks will have a low impact.^[86] Soft drink producers claim the soft drinks only consume about seven percent of the American diet, which is supposedly too little to cause obesity.^[87] In addition, most of the Coca-Cola and Pepsi sales are in grocery stores, and largest volume of sales is in the twenty-ounce packages.^[88] Most importantly, however, Mayor Bloomberg’s ban does not reach most of the biggest culprits^.[89] Only establishments that receive inspection grades from the health department are subject to the Bloomberg ban.^[90] Thus, convenient stores, vending machines, and most newsstands are exempt.^[91] The infamous 7-Eleven Big Gulp is not affected by the ban.[92] Additionally, fruit juices, milkshakes, diet sodas, and alcoholic beverages are not included in the ban. If the Big Gulp in all of its enormity and large frozen daiquiris are exempt, then frankly, what is the purpose of the Bloomberg Ban?

Canada launched a campaign thirty-two years ago to combat childhood obesity, and their plan has shown actual results.^[93] Quebec banned all fast food companies from advertising to kids with any form of media.^[94] As a result of the crusade against fast food advertising, Quebec’s kids consumed nearly twenty billion fewer calories per year and spent nearly ninety million dollars less on fast food.^[95] Most importantly though, Quebec has the lowest childhood obesity rate in all of Canada.^[96]

In addition to these plans and proposals, athletes have taken it upon themselves to encourage physical activity in an effort to combat childhood obesity. Following the direction of the Center for Disease Control (CDC), such groups suggest sixty minutes of physical activity a day.^[97] The National Football League (NFL) specifically has introduced a program called, “Play 60: The NFL movement for an active generation.” To “reverse the trend of childhood obesity,” the movement encourages children to be active for sixty minutes a day.^[98] Adults and children can get involved through school programs, contests, and community events.^[99] Children are inspired to eat right, or “fuel up,” with NFL player inspired foods and are told to go play outside and engage in several NFL inspired activities.^[100] Schools can get involved and receive incentives for becoming “Play 60 schools.”^[101] Additionally, parents are encouraged to cook certain team-inspired foods for their NFL fan children.^[102] Some professional athletes have even teamed up with interactive game consoles to promote a more active life style, even for those that stay inside.^[103] Drew Brees, New Orleans Saints Quarterback, and NFL Play 60 have teamed up with Kinect for Xbox 360 to create a program called “60 Million Minutes Challenge.”^[104] Brees and Xbox challenge children to get off of the couch for 60 minutes each day and hope to get one million children to pledge to do so.^[105] Children who pledge to be active an avoid the couch for an hour each day can receive autographs, called a “Social Autographs” on their Facebook pages.”^[106]

Michelle Obama, as First Lady, launched a campaign against childhood obesity on February 9, 2010, called “Let’s Move!”^[107] The initiative promotes activity and healthier foods.^[108] Recently, “Let’s Move!” shifted its focus from food to activity, and unfortunately the program has suffered.^[109] Allegedly, the shift is due to an unwillingness to go up against fast food powerhouses in an election year.^[110]

While the states’, Quebec’s, NFL’s, and the First Lady’s plans and incentives are impressive, the most captivating plan comes from the creators of the Most Magical Place on Earth, Walt Disney.^[111] In July 2012, The Walt Disney Company announced a plan to advertise only healthy foods to kids on all of its television channels.^[112] By 2015, every single advertisement on all of Disney’s television channels, radio stations, and internet sites with have to comply with Disney’s “nutrition criteria for limiting and reducing saturated fat, sodium, and sugar.”^[113] The company’s nutrition criteria are inline with federal guidelines.^[114] Disney characters will not be associated with any foods that do not meet the company’s standards, and Disney has announced the program and stated that the company is ready to work with any marketer to ensure that the advertisements meet Disney’s rigorous standards.^[115] Cereal products advertised will contain fewer than ten grams of sugar per serving and will hopefully shape how children expect to be fed.^[116]

In addition to Disney’s new advertising scheme, Disney introduced a tool called, “Mickey Check: which highlights nutritious food and menu items sold in stores, online, and at the restaurants in its venues and parks.^[117] “Mickey Check” will appear on licensed food products and qualifying recipes.^[118]

PART III: What Can We Do?

While researching childhood obesity and the possible solutions, the researcher is doomed to feel hopeless. There is such a problem with children and obesity and every effort seems to be lost, or too slight to be effective. It feels as though we are fighting a losing battle. The initiatives taken by the entities discussed above are of course possible in all states, including Louisiana, in some form or another. Fast food zoning is intriguing, as fast food seems to be at the root of all obesity. Regrettably though, Louisiana, and every state, already seems to have a fast food restaurant on nearly every corner and several at every highway and interstate exit. A restriction on building permits would not significantly reduce obesity, because the structures already exist. Los Angeles’ ban seems to be able to have a great preventative future effects, but cannot fix the problem that already exists.

Changes to the federal programs like WIC (Women, Infants, and Children) and SNAP (Supplemental Nutrition Assistance Program) are possible. Decreasing the unhealthy choices available for purchase with such assistance and increasing the amount of fresh fruit and vegetables would likely improve the diets of some lower income residents in Louisiana. However, the programs are already significantly limited.^[119] Participants are only allowed to purchase certain things^[120] and further restriction would likely only cause more problems. Most low-income programs have initiated nutritional education platforms. Creating incentives for choosing healthier choices and lifestyles may increase participation. Yet, changes to these programs only impact the lower income sections of the United States. While obesity is certainly an issue with lower income families and specifically those in urban areas, it is an issue across classes. Changes to these programs will not fix the problem on a national level.

The Bloomberg Ban on soft drinks may not achieve the desired effects, but the effort can be morphed and used to create the desired effects. Though, instead of a soft drink ban, the “biggest step taken to curb obesity”^[121] looks more like the Tobacco Control Act. In 2009, President Obama signed The Family Smoking Prevention and Tobacco Control Act (Tabaco Control Act) into law.^[122] This move by the President gave the United States Food and Drug Administration (FDA) the authority to regulate tobacco products.^[123] The FDA is now able to prevent smoking in areas such as school zones, restrict sales, regulate advertising, require warnings, require disclosure, reduce the amount of nicotine, and create standards.^[124] The regulation intended and continues to reduce the amount of tobacco products used by today’s youth.^[125] With this effort, it is expected to increase the price of tobacco products for consumers, up to seven cents per pack and prevents samples, t-shirts and gear, and most advertising.^[126]  This prevention of youth targeted advertising and the prohibition against flavored tobacco products has mostly impacted the youth and its consumption of tobacco products.^[127]

The extreme effort is having, as planned, a gradual effect.^[128] It is comprised of many components and is intended as a long-term plan.^[129] Yet, the most encouraging part of the Tobacco Control Act and its relationship to childhood obesity is the extent and possibility of state involvement. The Tobacco Control Act is structured to ensure the states’ freedom to further regulate tobacco products with the Act as a starting point.^[130] The states are encouraged to further regulate tobacco with smoke-free zones, increases tobacco taxes, counter-marketing campaigns, and most importantly, advertisement restrictions.^[131]

Thus, while the Tobacco Control Act has a slow and minimally noticeable impact on a short-term timeline, the regulation is the most comprehensive and is effective long-term, because it is a start. It is literally a comprehensive gradual attack on tobacco products as a whole. The pessimistic view of the childhood obesity researcher is curable, even if the effects will not be seen in that researchers lifetime. The suggested remedy requires Federal action. It necessitates a Federal Act giving the FDA the ability to further regulate food, with obesity in mind. The regulation would give the FDA the ability to control the nutritional content of all food. Instead of fighting one entity, like fast food and soft drinks, the FDA would be able to attack all components of obesity with a focus on our future, on our children. The attack would of course be gradual, but would be a start. Most importantly, like the Tobacco Control Act, the food act would give the states the authority to further restrict advertising, sales, and taxes of unhealthy food, or foods that do not meet nutritional guidelines. States would be able to look at their individual statistics and agree on a staring point for that particular state. If fast food is a large contributing factor in a certain state, then that state can start there. If soft drink consumption is a larger contributor in another state, then that state can start there instead. For Louisiana specifically, we would start in our urban areas where childhood obesity is flourishing. We could continue the effort to eliminate food deserts and go from there, to taxing and a regulation of advertising. Billboard advertising would be limited to only healthy foods meeting the requirements of the CDC. Like the Tobacco Control Act, the act would create the framework for getting rid of unhealthy foods, giving the power to the FDA and essentially, to the states. It would not promise to fix this current generation’s obesity rate, but it would likely promise the existence of future generations.

Conclusion

Something has to be done about childhood obesity. Children are our best assets and their food consumption habits are slowing worsening the chances of any future generations. However, the battle against childhood obesity will not be easily won. Instead it will take extreme effort. There are many things that can be done short-term, like banning fast food establishments and large soft drinks, but a long-term plan is perhaps more promising. A long-term plan that involves the effort of the Federal Government and the states will be the combined effort that we owe our children. The plan is a close cousin of the Tobacco Control Act, which starts a slow fight against unhealthy food that causes obesity. The Federal Government is the General of the crusade, with the states as its soldiers. Louisiana is fed up, or should be, and ready to be on the front line.