Congress Restricts Funds for FTC Report on Food Marketing to Children

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

Federal legislation to fund the FTC and other agencies for Fiscal Year (FY) 2012, which was approved by Congress on December 17, would restrict the FTC from issuing principles or guidelines governing food marketing.

The “Consolidated Appropriations Act, 2012” states that none of the funds appropriated to the agency may be used "to complete the draft report, entitled ‘Interagency Working Group on Food Marketed to Children: Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts,’ unless the Interagency Working Group on Food Marketed to Children complies with Executive Order 13563."

Cost-Benefit Analysis

The executive order, issued January 18, 2011, requires government agencies, among other things, to conduct a cost-benefit analysis when issuing regulations. Agencies also are expected to invite and consider public comments on proposals.

Food Marketing Guidelines

The restriction on FTC funding was part of the House of Representatives' version of appropriations measure. The House Committee Report did not support the FTC, either as part of the Interagency Working Group on Food Marketed to Children or acting independently, issuing “principles or guidelines governing food marketed to children unless a peer-reviewed scientific study conclusively demonstrates that regulating food marketing directed to children is the most effective way of changing long-term eating behavior and reducing obesity.”

Interagency Working Group

The House Committee Report advised the agency not to rely on any guidance issued by the Interagency Working Group on Food Marketed to Children to engage in enforcement actions under its existing authority.

The Interagency Working Group on Food Marketed to Children—comprised of Centers for Disease Control and Prevention, the FTC, the Food and Drug Administration, and the U.S. Department of Agriculture—was convened in 2009 to develop nutrition standards for foods marketed to children and define the scope of marketing to which those standards.

The Working Group released preliminary proposed voluntary principles to guide industry self-regulation for public comment in April 2011. FTC Bureau of Consumer Protection Director David C. Vladeck testified before a House subcommittee hearing on October 12 regarding the agency’s participation in the working group.

FY 2012 Appropriations

The bill authorizes $311,563,000 in funding for the FTC in FY 2012. This is $20,200,000 above the FY 2011 enacted level and $14,437,000 below the budget request. The figures are based on Senate recommendations. The House version had called for an appropriation of $284,067,000, which would have been $7,296,000 less than fiscal year 2011 and $41,933,000 less than the request.
The spending measure does not include other provisions included in an earlier Senate bill. Proposed increases to the Hart-Scott-Rodino (HSR) Act premerger filing fees are not in the final measure.

Also missing was language in the Senate measure that would have precluded the conveyance of the FTC headquarters building on Pennsylvania Avenue to the National Gallery of Art or other entity unless the government received fair market value for the property.