From Faneuil Hall in Boston, THE ADVOCATES. Tonight's question: SHOULD THE FEDERAL TRADE
COMMISSION BAN ADVERTISING ON CHILDREN'S TELEVISION? Arguing in favor is Nicholas Johnson, a former Commissioner
of the Federal Communications Commission, and the author of "How to Talk Back to Your Television Set." Appearing
as witnesses for Mr. Johnson are Tracy Westen, attorney and Director of the Federal Trade Commission's Bureau of
Consumer Protection, and Joan Gussow, author and Chairman of the Program in Nutrition at Columbia University.
Arguing against the proposal is Edwin Diamond, media critic and Director of the News Study Group at the
Massachusetts Institute of Technology. Appearing as witnesses for Mr. Diamond are Richard Jencks, media consultant
and former President of the CBS Broadcast Group, and Lee Loevinger, attorney and a former Commissioner of the
Federal Communications Commission.
Good evening. Tonight THE ADVOCATES looks at whether the Federal Trade Commission should
ban as unfair and deceptive advertising on children's television. On the average American children watch more than
30 hours of television a week, more time than many of them spend in school. They see over 20,000 commercials a
year. Over half of those commercials are for sugared products. The Federal Trade Commission is deciding whether to
regulate this advertising by imposing certain bans and restrictions on what products can be advertised to children
and when. Specifically, ban on all advertising to young children under the age of eight. A ban on advertising to
older children under 12 of sugared products which may be particularly harmful to dental health. A requirement that
those who advertise sugar products not banned pay for public service announcements to teach children about
nutrition. Clearly the issue tonight has nothing to do with whether one finds these commercials too amusing or
annoying. The question rather is should these messages be banned as unfair and deceptive on children's television?
Should the FTC take these steps? Advocate Nicholas Johnson says, yes.
We're one of the few countries that permits television to push sugar and other products to
children who are so young they don't even know the difference between a program and a commercial. They think those
people on the television screen are inside the box. Now, this may profit the broadcasters because they earn some
$600 million from this, but our children are paying too high a price. With me tonight to make the case for the FTC
inquiry are Consumer Protection Deputy Director Tracy Westen, and nutritionist Dr. Joan Gussow.
Advocate Edwin Diamond says, no.
Well, children do need protection, but no amount of sweet talk can fool anyone. The harm
that these regulations do will far, the harm, excuse me, the harm that these regulations will do - fortunately
it's still in the future tense - will far outweigh any possible good that they might achieve. There's more danger
in government control of television than there is in Snickers bars or, ah, Crazy Cow or Cookie Crunch or even
Count Chocula, Frankenberry and Captain Crunch all put together. With me tonight to show that we can have healthy
children without unworkable and unconstitutional regulations are Mr. Richard Jencks and Mr. Lee Loevinger. Thank
This isn't the first time that ads on children's television have been at issue. Several
years ago public interests groups led by ACT, Action for Children's Television, asked the Federal Communications
Commission to adopt similar bans on advertising to children. The Commission declined. When the FCC failed to adopt
these rules, Action for Children's Television turned to the FTC, the Federal Trade Commission. It is the Trade
Commission's mandate to identify and to take action against advertising which is unfair and deceptive, whether the
ad be in print or on the airwaves. The FTC staff has conducted an investigation and has recommended that the
Commission adopt these rules. The Trade Commission has scheduled hearings to invite public response on the three
rules, the two bans and remedial nutritional advertising. Tonight we focus primarily on the issues raised by the
bans. Is tonight's proposal a bold step to curb some of television's abuses, or a futile exercise which will
endanger First Amendment guarantees and free speech? And now to our question, SHOULD THE FEDERAL TRADE COMMISSION
BAN ADVERTISING ON CHILDREN'S TELEVISION? Mr. Johnson, the floor is yours.
You know, broadcasters receive $8 billion a year in their advertising. I think that
turning the commercials from a $8 billion-a-year ray gun on three and four-year olds is about as sporting as
shooting fish in a barrel. Something has got to be done about this. That's just common sense. And in this
instance, it also happens to be the law. Because of the dangers involved, the Congress has specifically asked the
Federal Trade Commission to give special attention to the deceptive advertising of food. The FTC is just carrying
out that congressional order and in a way that the Supreme Court has repeatedly said is fully constitutional. The
proposal of the FTC is really a very modest one. There's no sugar product that's going to be taken off the market.
In fact there's no sugar product that can't be advertised. All the Federal Trade Commission is saying is that you
can't advertise them to children in ways that are deceptive. Now tonight we're going to talk about the health
hazards of sugar and I want to explain why. It's because under the law of deceptive advertising, a health risk is
considered much more serious than just the risk that you're going to be defrauded of your money. We're also going
to talk about the capacity of children to understand advertising. And again we talk about that because the law
quite naturally says that you have to understand a commercial in order not to be deceived by it. I think that
parents welcome this inquiry. I think they hope that it's not going to be scuttled by the economic interests of
big broadcasting. I call as my first witness, Tracy Westen.
Mr. Westen, welcome to THE ADVOCATES.
Now, Tracy Westen is the Deputy Director for Consumer Protection at the Federal Trade
Commission. Formerly he was the Director of the Communications Law Program at the UCLA Law School. Mr. Weston, why
is the Federal Trade Commission regulating deceptive advertising at all?
Well, Congress established the Federal Trade Commission in 1914 and it was principally
concerned with preserving a free enterprise economy and at the same time protecting consumers from unfair
deceptive practices. In particular, it gave the FTC the power to regulate unfair and deceptive advertising for two
reasons: first, to protect small businesses against, against unfair competitive practices, and to protect
consumers against misrepresentations in advertising. And in fact in 1938, Congress spelled this out very clearly
and said the FTC has special powers to regulate deceptive food advertising.
And what has the Supreme Court said? Is this constitutional?
Well, the Supreme Court has repeatedly upheld our power to regulate deceptive advertising
and it held clearly that that in no way conflicts with the First Amendment.
And, this isn't really the first time you've looked at deceptive advertising at children,
No. Ah, the FTC has been involved in protecting children against deception in advertising
for over 40 years, and the common theme that runs through its cases is that children are more vulnerable, less
experienced, less mature and simply can't evaluate messages as adults can. For example, vitamins. Perfectly
legitimate product and there may be a lot to be said for advertising it to adults. But to sell, for example,
chocolate-covered vitamins to four and five-year olds may be deceptive because they may overdose themselves. And
notice, the ads can be truthful. The ad can say they're chocolate and they taste good. That may well be true, but
they omit to explain the health consequences of the product concerned.
All right, now I understand you're saying that you can't have deceptive advertising to
children. But aren't you also proposing a ban on some advertising? Why do you need to ban it?
Well, 25 percent of the American population is now under the age of 13. And we know that
those children spend most of their time, much of their time watching television. Pre-schoolers, for example, spend
1/3 of their waking hours in front of a television set. Children will see 20,000 ads a year. Yet the
psychologists, the clinical experts, the, ah, experts in child behavior tell us that young children cannot
distinguish between a commercial and a program. They believe the cartoon figures are real. They live inside the
television set. They speak to the child personally and are a trusted and a close friend. The question we're
raising is whether it's inherently deceptive or unfair to sell products to children who are so young they don't
know what a commercial is.
This is a problem in other countries, too, and many of them that have addressed it have
simply banned the advertising of sugar products to adults or children during the course of the day when children
might be watching. Now why haven't you just done that here? Wouldn't that be simpler?
Well, it might be simpler. We've tried to take a more conservative approach that is, that
is still protective, ah, of business and, at the same time, protective of children and consumers. The essential
thrust is this. When a child is old enough at least to understand what a commercial is, then with respect to key
health issues such as sugar and other nutrition, tell children both sides of the story, and let them make up their
own minds. Give them information on nutrition. Ah, with respect to the most dangerous products, those that are
directly linked to tooth decay, hold off for a few more years until children are old enough to understand the
long-term consequences of tooth decay.
Ah, we'll have to have a quick question and a quick answer, please.
Well, I was going to ask you, Mr. Westen, just, ah, if you would outline in a little more
detail, just exactly what you are proposing here in this case?
Very succinctly, no commercials to children who are too young to understand what a
commercial is. Over that age tell them both sides of the story unless the issue is so complicated, like cigarettes
or other major health questions, that they have to be deferred for a few years.
All right, thank you. We'll have to go to Mr. Diamond for some questions for Mr. Weston,
I had, um, I had several questions, but first of all I want to hear about those little men
and women inside the television box. Do you think that, um, children believe, some children believe that there are
little people inside the box making these commercials?
That's what the clinicians tell us
I see, the clinicians. Are these the same children then that go to stores with twenty,
forty, fifty dollar bills and buy the groceries for the family each week?
Many mothers do take their children shopping, yes.
And, and the, the mother rides in the basket and the kid picks the, okay, well.
No, in fact it's the opposite. The New York State Legislature has, ah, has done a study in
which they show children so young they can't walk or even talk, reach out of the basket and grab brand advertised
cereals off the shelf and stick them in.
There's a, there's...my kid did that once and then a (slap) across the wrist and that it,
that it, that solved that.
The figures indicate that 88 percent of mothers, ah, tell us that, ah, their choices of
cereal are, are child-influenced. That perhaps explains why there's such massive advertising to children.
Okay, let's, let's move on now. I understand that this is the first attempt by a
government agency to ban a whole category of advertising without finding that the advertised product is harmful or
illegal. Is that correct? A simple yes or no.
Ah, I don't know.
Okay. Well, let's move on then and let us assume that it is correct for a moment, and
isn't the reason why we haven't given a federal agency this power to ban whole categories of ads, isn't because we
want to give the utmost protection to our rights to choose for ourselves what we may want to hear or to, ah, read
or to say?
Well, Congress, I think that's true in one sense, but in another sense, Congress and the
Supreme Court has given us the power to eliminate deceptive advertising and that is what we're talking
Okay. Deceptive advertising. Then we'll have to do a little study and find out which ads
are deceptive and which ads aren't?
That's, that's the focus of our inquiries.
Now we have your report, you spent a long time, it's what, 300 pages, whatever...
You got a, 400 pages, so you spent that much longer. Ah, you're going to do now a year of,
ah, more investigation and spend another million dollars and you're going to produce some proposals that are going
to read pretty much like this report.
Well, actually the money we're going to spend in an entire year is less than it costs to
produce the commercials in one, one-hour children's program.
Ah, but there's a difference, you see. Eh, there's, there's a difference between that. The
advertisers pay for the commercials. I pay for your studies. The taxpayers pay for your studies.
Okay, let's, let's move on.
You also, also pay for the commercials through the products.
Let's move on. After you get these proposals, after this year and million dollars, then
you're going to have to do some more studies, aren't you? You're going to have to look at each ad to determine if
it's deceptive. So we need more researchers, lawyers. Is that correct?
No, in fact it's the opposite. Instead of going case by case and looking at one ad after
another, often by the time we are able to analyze an ad, it's off the air. We're proposing to look at this whole
problem in a systematic way and adopt a comprehensive rule that will solve the problem.
I know, systematic and comprehensive, we've heard these words coming out of Washington for
15 years. Let's move on to another area where your army of censors will be working. A man wants to put on a
program - a producer, a man or woman wants to put on a program - and wants to get Coca-Cola to sponsor it, and it
may reach a significant amount of children in prime time. Won't that producer have to check with, ah, the FTC to
find out if he or she can go ahead with that program?
A brief answer, Mr. Westen, please.
All right, ah, that's only, we'll have to go to Mr. Johnson now for one more question to
Mr. Westen. You'll get one more in a minute.
Mr. Westen, in fact, haven't you very narrowly defined the regulation that is proposed
Yes, now several years ago Congress banned all cigarette advertising from the air and that
was upheld by the Supreme Court. Our proposal is more narrow. We are simply saying that you can't sell products to
children who are so young they don't know what a sales pitch is. As soon as they're old enough, by all means, go
ahead, sell them what you like.
With respect to key issues, tell them both sides.
Mr. Diamond, one last question.
Mr. Westen, do children watch prime time television? We know indeed that children watch
all around the dial. You're going to narrow your net so much that you're only going to pick up a few children. Are
you going to forget about the, everyone else?
No, not at all. The principal problem as you will see when you look at children's
television is that it is concentrated on Saturday morning and in certain late afternoon time slots. Um, after all,
when, when manufacturers want to sell products to children, they don't put them in baseball shows. They
concentrate them on Saturday morning and that's the focus of our inquiry.
All right, thank you, Mr. Westen. Thank you for joining us on THE ADVOCATES. Mr. Johnson,
your next witness, please.
Well, I call as my next witness, ah, Dr. Joan Gussow.
Dr. Gussow, welcome to THE ADVOCATES.
Dr. Gussow is the chairperson of the program in nutrition at Teacher's College at Columbia
University. She's the author of numerous articles and books, including the forthcoming, "The Feeding Web." Now,
Dr. Gussow, in deciding whether or not a TV commercial is misleading, ah, the law provides that it is more
significant if people risk losing their health than if they just risk losing their money. So that's why I'm asking
you this question as we talk about deceptive advertising. As a nutritionist, are there health hazards for children
Well, yes, it's very clear that there's a health hazard associated with tooth decay from
sugar. Ah, sometimes people make that sound trivial, but it's not trivial - it causes a great deal of pain and
ultimately it causes tooth loss. About one out of ten Americans has no teeth. That's not a joke. Um, more than
that there is evidence that high consumption of sugar in the context of a diet - the American diet which is
already high in calories, high in fat, high in cholesterol, high in salt - is associated with a number of other
health problems; among them, some of our worst killers, diabetes, coronary heart disease. Ah, we have, we have a
health situation in this country in which we're spending $200 billion a year now on health. That's up three times
from what it was in 1970, just eight years ago. I don't think we can afford to go on advertising to children, ah,
products, a group of products which are clearly not healthful.
Dr. Gussow, in deciding whether TV commercial is deceptive or misleading, another thing
the FTC has to consider is whether the audience is capable of measuring these health risks, and it's for that
reason that I ask you now as a nutrition educator, ah, can you tell us whether or not children under the age of
six do understand the hazards of sugar?
Um, I think it's obvious that a child that cannot understand that they're being sold to,
that is a child so young as to not be aware of the difference between a commercial and a program, is not capable
of evaluating the risk that sugar represents.
Well, how about the proposal of the FTC for children over 12, that they have public
service announcements about nutritional information? Why wouldn't that be a fully adequate solution for younger
children as well? Why do we have to have a ban?
I have long been an advocate of, of having public service announcements on the other side
of the issue as a way of balancing some of the imbalance created by heavy advertising. But I think you have to
realize we're dealing with a special audience. For an audience, ah, to be able to evaluate both sides of the
issue, they have to be a rational, thoughtful audience capable of making that sort of evaluation. I think parents
would love it if their children were amenable to reason. Ah, as it happens they're not really. They're very
stimulus-dominated. Sugar is a very potent stimulus for a child, which is one of the reasons that so many products
on children's television are sugared. And a child just can't fight that. You can't, you can't have a whole morning
of, of delicious-looking sugared products, and then at the end of the time say to the child now don't eat those
because when you're 40 you might not be too healthy.
Dr. Gussow, I can understand how you as a nutrition educator, would be interested in these
issues and the FTC might be, but what evidence is there really that parents in America care about this? That
they're really asking for any help from the FTC or anybody else on these problems.
I'm glad you asked that question, because we do happen to have some data. There happens to
be two recent studies. One actually was done by a cereal company. Ah, there was a General Mills study which asked
among other things about the major nagging problems in raising children. Of the 10 major nagging problems, four
out of, three out of the first four were directly relating to what we're talking about here this morning. They are
children filling up with snacks between meals, that's the first one. The third is children not eating what they
should. And the fourth is children always asking for things they see advertised. The second actually is cry,
children crying and whining which may also be related.
Very quick question and quick answer.
Why don't you think that, that parents can cope with this problem?
I think the idea that parents should be there monitoring the television set and coping
with it is, is a very, is a very unfair notion. That, the barrage is almost unceasing. Parents do not have time.
Many, many mothers are working. About 3/4's of the women under 35 are in the work force. They have other things to
do on Saturday morning than monitor television. And to have to always say no to your child every time your child
asks for something and since the asking is so perpetual as a result of television, a good many of their requests
are for things on television, to always, always have to say no is not fair.
All right, ah, we'll have to go to Mr. Diamond now for some questions for Dr.
You know, Professor Gussow, I'm just not convinced that Captain Crunch is public enemy
number 1, but I'd rather talk about some more clear and present dangers. You mentioned some other foods - high
cholesterol, high sodium. Are, are we going to move on from sugared products to eggs, meat - anything in excess I
understand is bad, isn't it? So should we get into, shouldn't we ban some other ads, too?
The Federal Trade Commission proposal is to ban all television advertising to children too
young to understand ad, advertising. I would assume that would include those things.
But what their deceptive - then they might fool teenagers and adults, so shouldn't we push
on? You told us about the high cost of health. I, let's stop it. I mean I'm concerned about these rotting teeth. I
want to stop the, I want high blood pressure, too. Let's move on to these other ads, right?
Oh, I absolutely agree with you, Mr. Diamond.
Move on to other ads.
I think there should be, I do not think we should ban them except to small children where
it's deceptive to advertise them. But I think that we should have public service announcements giving equal time
to, to various sides of public issues of importance, and this is a first step, I hope.
Would you like, first step. Ah, we agree that this is a first step. And that's the road,
and that's where the clear and present danger is, in the road that you're embarking on.
You feel that it would be dangerous for the USDA, for instance, to do a public service
campaign on a nutritious diet?
I, I guess I'm asking questions now. Let me ask you a question, ah. Do you, would like to
see all commercials off television, would you? In the bright world....
Would I like to see all commercials off television?
I don't, I think that's irrelevant whether I'd like to see them off television or not.
That's not what we're talking about.
Well, but you're here as a witness for a side that has proposed a first step of getting
No, as a matter of fact, I believe...
I want to know your next step. How about cholesterol--how about eggs, meat, how about, let
me give you a hypothetical. Ah, an R-rated movie is shown on television, an ad for it, the "Exorcist" or "The
Fury" and it, and it shows scenes that might in a little child cause fears and fantasies. Would you, ah, ban that,
ah ah, commercial from television? It's harmful to the child's, it may be harmful....
The commercial or a movie?
The commercial for the movie shows scenes from the movie and causes...
...a group of well-organized people suggests it causes, ah, emotional problems. What would
you do about that?
As I understand it, the NAB code stipulates that you cannot have such trailers on
children's advertising, on children's television.
By the way, there are NAB, there are NAB codes by the way for sugar products and all these
others. But would you take that ad off the...
I would not show it on...
If it were bad for mental health?
I would not show it on children's television.
But all television is children's television, is, isn't it? All children watch television
around the clock?
I believe when you're talking about an audience that's very largely children, very few
adults are watching television on Saturday morning. They couldn't stand it, if you've ever watched it.
Ah, that happens not to be so and our witnesses will bring that out. Ah, but one, I still
want you to tell me what, what the next step is. We get rid of ads, any organized group asks the FTC to, for a
laudable purpose to remove ads?
Let me answer now, Mr. Diamond. I believe in democracy and I believe democracy only works
if people have access to all the available information. I don't think it was a good idea to take tobacco
advertising off the air because, in fact, the counter-commercials for tobacco advertising were beginning...
And, indeed, people...
... to affect cigarette sales. But it was the tobacco manufacturers who were happy to go
off the air because it was affecting cigarette sales.
Well, they kicked and screamed but they're, they're happy now...
They're happy now because cigarette smoking is still very high, isn't it?
Right, so that I don't think...
So what about this powerful medium, television...
I don't think banning.
What does it do? It didn't do anything to cigarette smoking. Do you think that sugar, do
you think if sugar commercials went off the air that there would be a dramatic change in dental carries?
That's not the goal of the rule. The goal of the rule is to prevent deceptive...
To make jobs for people?
...to prevent deceptive advertising to children and when children are old enough to make
judgments, to allow them to have both sides of the issue. I believe all of us should hear both sides of issues of
Okay, let's think about both sides. By your figures...
Ah, very quickly.
...children watch television for two hours. That leaves 96 hours of waking time which
their parents, their church, their school, their friends can talk to them.
Two hours? Thirty...
Two hours for commercials and 96 hours for the rest of non-media every week.
I'm sorry, I'm not following you.
So isn't that, ah, doesn't that give equal time for other points of view?
You're saying there are two hours of commercials a week. Is that what you're saying?
You said that they watch two hours of food commercials.
Mr. Diamond, I'm sorry. Mr. Diamond, we'll have to go to Mr. Johnson for one more question
for Dr. Gussow.
One of the threats of the broadcasters is that they may reduce children's programming on
television. Do you know of any studies about the attitudes of parents with regard to the possible loss of
programming in exchange for loss of commercials?
Yes, as a matter of fact, Yankele, Yankelovich, I can never say that right, just did a
study for "Women's Day" in which, ah, 60 percent of the parents - in fact I have that statistic here, too - they
said, stop advertising to children even if it means many fewer children's programs will be available. 60 percent
of the public said that they wanted that.
Now that's a marked change.
Mr. Diamond, now you can get one more question.
Professor Gussow, assuming for a moment, after all these studies we find that sugared
products cause dental carries in some children. Why not deal with the product rather than the commercial. Why not
labels on products? Why not bans on products? Why deal with television? Why not go after the sugar industry?
That's, that may be an appropriate thing for the FDA to do, but it's not an appropriate
thing for the FTC to do. And what we're debating here today is the FTC's role in regulating deceptive
Well, I think...
All right, just one question, Mr. Diamond. Thank you, Dr. Gussow. Thank you for joining us
on THE ADVOCATES. Mr. Johnson.
Well, I think you already see why there's a clear need for this FTC action prohibiting
deceptive advertising to children. You've heard the reasons for the FTC inquiry; the reasons why it's modest
proposal. It's really well within the law. What you're about to hear, the reasons why broadcasters think they
ought to be able to go on earning $600 million a year, manipulating little children.
Thank you. For those of you who may have joined us late, Mr. Johnson and his two witnesses
have just presented the case in favor of tonight's question, SHOULD THE FEDERAL TRADE COMMISSION BAN ADVERTISING
ON CHILDREN'S TELEVISION? And now for the case against, Mr. Diamond, the floor is yours.
Thank you. Well look, no one with enough brains to twirl a television dial could be
against good nutrition, but there's no way these proposed regulations will produce happier, healthier children. If
food products that might be bad for children are being sold, then let's deal with the products, not censor the
advertising. We accept a proper role for government regulation - we're not a bunch of Neanderthals - but we, but
we can educate parents and children to stop bad habits without getting government into the clearly wasteful,
intrusive and unconstitutional business of regulating speech. Those of us - and I'm a journalist and I care -
those of us who care about the First Amendment and about a vigorous, free broadcasting medium, know that this
proposed censorship sets dangerous precedence. First, the government starts by defining what can be said in a
children's commercial. Then it censors commercials for teenagers. Next it outlaws ads that might be misunderstood
by gullible adults. Of course no one in this room, but those others. Then it passes on the content of programming.
In the name of preventing cavities, we muzzle speech. We give to the administration in power - and run through
your mind some of those administrations - the power to control television. To show why this ill-conceived,
unconstitutional plan can't possibly work, I call to the stand Mr. Richard Jencks.
Mr. Jencks, welcome to THE ADVOCATES.
Mr. Jencks is a media consultant, a former general counsel of CBS and a former president
of the CBS Broadcast Group. Mr. Jencks, from your extensive inside knowledge of television broadcasting, will you
tell us why these proposed FTC rules are useless?
Well, I think they're futile for several reasons. In the first place, you've got to
realize that of the total amount of viewing done by children of television, only about 15 percent is done on
Saturday and Sunday mornings when these bans would take place. The other 85 percent of the viewing is done in the
rest of the television schedule. For years there were more children watching "All in the Family" than any other
single program. Furthermore...
And that's a program that went on in prime time at 8...
...a program in prime time. Furthermore, the advertising budgets which advertisers would
no longer be able to spend in television would be shifted to other media - magazines, newspapers, comic books - in
which children's, ah, snacks, sweet snacks, are advertised. The one experience that we have had in broadcasting
with the banning of a product category was in connection with the 1971 Congressional ban of radio and television
advertising of cigarettes.
Now is that a scenario for what might possibly happen with the banning of sugar ads?
I think so. In the cigarette case there had been an official government proclamation by
the Surgeon General of the United States that cigarettes were hazardous to health. Their advertising was banned,
and those that were concerned about the health impact of cigarettes believed that that would reduce the
consumption of cigarettes. It did not. The total consumption of cigarettes has risen in every year since then
until this date, with a particularly large increase in the number of teenagers smoking cigarettes.
So much for the power of ad, television. But what about deceptive and unfair advertising?
You've heard that discussed here. Would you comment on, shouldn't we protect children from deceptive and unfair
Of course we should protect children from deceptive and unfair advertising and the FTC
clearly has that power and often exercises it. Here, what the proposed rule is saying that all advertising of a
certain product category is ipso facto deceptive without the necessity of the FTC really looking at it or judging
it. And they're also saying that all advertising to a particular class of young children below the age of eight is
deceptive without regard to the real characterization of the advertising. Even a message such as orange juice is
good for you in the FTC's view under this rule is deceptive.
Mr. Jencks then, what would you do to have the gov--what role for the government in
stopping sugared products then?
I think there are lots of things the government could do if it really is concerned about
sugar and wants to do something practical about it. For one thing, the federal government's Food and Drug
Administration now holds that sugar, as a food, is generally recognized as safe. They could if they believe
otherwise reverse that finding. They could require that the amount of sugar in cereals and other products is
indicated on the label. They could require a health warning on the package, as they now do with respect to
saccharin sweeteners. I saw a package just the other day in my own supermarket so labeled. The government is a
tremendous direct and indirect provider of meals: in the armed forces, in government cafeterias, in food stamps
and in other programs. They could through all these means make the point...
...that, ah, that sugar is hazardous and that, for example, food stamps would not be
A quick question because we're running out of time then. Why then these FTC rules that,
attacking the broadcast medium? What's behind it?
Because I think television is a very popular target. This is a way to get, ah, to, to
appear to fight a good fight which, although it will be ineffective, nevertheless is associated with an attack on
television. And it is an easier attack to mount than any of the direct government measures to combat sugar usage
that I mentioned.
All right, now we'll go to Mr. Johnson for some questions for Mr. Jencks.
Mr. Jencks, why is it good for a three-year old to see 7,000 TV commercials a year for
I don't know that it is good, and haven't said that it was.
Is it fair to advertise to children who are so young they don't even know the difference
between a commercial and a program?
Don't even know they're being sold?
I am one generally to bow to experts, Mr. Johnson, but I have had children myself and
observed them and many other people's children, and I have not found that they are so confused, ah, as your
witnesses indicate. But I think we're dealing with a set of choices. I would urge those of you who are concerned
about this problem to educate children to watch less television. I would urge parents to permit their children to
watch less television. The problem we are confronted with is, really has to do with the magnitude of the impact of
commercials if there is a product, problem. And children should watch less than they do now.
All right, do you... it's possible...
Do you think it's possible for any advertisement to a child to be deceptive?
Of course it is. And if it is really...
Do you think it is appropriate then for the Federal Trade Commission to regulate that
deceptive advertising under the Federal Trade Commission Act of 1914?
Yes, provided that they find...
All right, then what is your objection to this, Mr. Jencks?
Provided that they find as to a specific commercial that it really is deceptive.
Are you attacking the, the ability, the capacity of the Federal Trade Commission to regi,
legislate through rules rather than through individual litigation? It's been universally heralded by people in
business and in the academic community as a much more sensible way of doing these things.
Well, I'm skeptical about universal heralds and I don't think that to attack a whole
product category is a useful way to approach the problem. The Commission is also interested in fostering
competition, and advertising is a way of producing competition and...
Deceptive advertising? Must it be deceptive in order to foster competition?
Honest advertising. Well, that's all the Federal Trade Commission...
...is after, Mr. Jencks.
You raised the matter of cigarette advertising. I think because I, ah, you do want to be
accurate always, you probably should note that the most recent FTC studies shows that cigarette consumption per
capita is in fact slightly down.
Slightly down from 1974, but still above 1971, the year--
Well, I think, however--
...that advertising was banned.
...there's been a slight misrepresentation here to suggest that it's been continuing to
climb when in fact the per capita consumption has gone down consistently for the last three years for which we
But for the class...
In any event, you suggest....
...we're concerned about, children, it's still going up.
You're, you suggested that, that the result of this, um, in cigarettes was simply to shift
to print ads and that the same thing would happen in sugar. I'd like to ask you, Mr. Jencks, what magazine would
you recommend to an advertiser, um, of Cookie Crisp, in order to reach three-year olds?
Well, I'm not a media expert. But I suggest to you that one form of advertising...
Isn't the problem really, Mr. Jencks...
Allow me to answer the question. One form of advertising that does reach three-year olds
is point-of-sale advertising in stores. It's expensive, it's well-done...
Now, but it was your suggestion.
...it makes the point.
...not that it would go into point-of-sale. It was your suggestion it would go into print.
And I'm just saying that one of the reasons...
Point-of-sale advertising is a medium.
...why the FTC ruling and, and categorization is rational, is that kids under the age of
six tend to read even less than their parents. Now, you suggest that you think there are going to be
administrative problems. I would suggest to you, Mr. Jencks, that there's a very easy way for Federal Trade
Commission to get rid of those administrative problems, and that is to adopt a proposal like they did in the
Netherlands, where they simply said there would be no advertising of sugared products during the day at all. Now,
would you prefer the Federal Trade Commission to do that? I, my impression is the Federal Trade Commission's
trying to be fair to business, trying to draft the most conservative...
Mr. Johnson, we're going to have to get that...
...limited rule possible.
...question narrowed down. Would he prefer what...
Would he prefer...
...they did in the Netherlands?
...the kinds of bans...
Mr. Jencks, we'll need a quick answer.
...they have in the Netherlands which is more easy to administer?
I'm not talking about ease in administration, but I don't think that in the, in the, ah,
interest of being fair to business it makes sense to adopt a rule which will not achieve the objective which you
seek for it. The fact of the matter is that in most European nations, including some like Russia and Sweden where
there is no advertising on television whatsoever, sugar consumption is higher than it is in this country.
Mr. Diamond, another question for Mr. Jencks.
Let's, let's talk about free speech and why newspapers get excused, but television gets
attacked. What will these FTC rules do to the broadcast medium?
Initially, I should think, candidly, the impact will be small because the amount of
advertising reached by the rule, as you read it, is small. But Dr. Gussow has described it as a first step. There
are obviously many foods far more dangerous to children and other consumers than sugared foods, and there would
appear to be no reason not to proscribe them at all.
All right, we'll have to go to Mr. Johnson. I'm sorry to cut you off, Mr. Jencks.
If you really think that it's the parent's responsibility, and the parent is the purchaser
of these products, Mr. Jencks, why then do you insist on continuing to pitch ads to these young kids?
Well, I think that the people who pitch ads to the young kids - the advertisers - frankly
do expect that children will influence their parents to some degree. The fact that they expect that does not mean
parents have to be ninnies, Mr. Johnson.
All right, thank you, Mr. Jencks. Gentlemen, thank you. Mr. Jencks, thank you for joining
us on THE ADVOCATES. Mr. Diamond, your second witness.
Well, we're, we've established that these proposed regulations won't do much for the
nutrition of kids, but they will promote the care and feeding of the bureaucrats. To show how potentially
dangerous this unprecedented federal intrusion will be, I call to the stand Mr. Lee Loevinger.
Mr. Loevinger, welcome to THE ADVOCATES.
Mr. Loevinger is an attorney, a former Assistant Attorney General of the United States,
and a former commissioner of the Federal Communications Commission. Mr. Loevinger, you've been inside the whale of
the federal bureaucracy. You've been a commissioner. Will you tell us why these proposed FTC rules won't
Well, I think it's notable that the proposal that's now before the FTC was presented some
years ago to the Federal Communications Commission, which whatever its faults, obviously knows an awful lot more
about broadcasting than the FTC does. And the F, the Communications Commission turned it down flat, saying that if
you took away the advertising you would degrade the quality of the programs and ultimately, ah, ruin the programs.
As a matter of fact, as Mr. Jencks has pointed out, ah, children's advertising is simply not distin, ah,
children's programming is not distinguishable from other programming. Eighty-five percent of children's watching
is non-children, ah, watch, is, ah, non-children programming, Saturday morning and even on Saturday morning
children are a minority of the total audience. So that if you're going to get the children that Mr. Johnson
exhibits here in his presentation to you, go on to other forms of programs.
Miss, Professor Gussow's first step, second step. Okay. We've heard some talk about sugar.
We're all against cavities and, ah, we've heard all about the correlation between, ah, cavities and sugar. But
what, what's the correlation between cavities and television, will you tell me?
Well that's, that's a point that is often missed. The fact that there may be a correlation
between cavities and sugar which I don't dispute, in fact, even don't address, does not mean that there is a
correlation between cavities and television viewing, and indeed the evidence is to the contrary. The National
Science Foundation made a study a few years ago, found there was no such evidence whatsoever. As Mr. Jencks has
pointed out, in countries in which there is no television or no television advertising - Russia, Bulgaria, Poland,
Sweden - the per capita consumption of sugar is considerably higher than it is in the United States, and indeed
the real plague, the real threat to children is not from cavities from too much sugar, but from alcohol, tobacco
Well, we'll get to that.
...which is, which are not advertised at all.
That's a, that's another program. Let's talk, now, now let's talk about television. Will
you tell us why these, ah, advertising censorship programs are dangerous precedents, proposals, I'm sorry. Why
these censorship proposals...
Now, inevitably and always, bureaucratic regulation expands. There is no other rule in
government. Let me give you a simple formula. CA equals CI equals CC. Now, what this means is that control of
advertising means control of income, and control of income means control of content. Anyone who doubts this can
read the Declaration of Independence because this was one of the colonists complaints against George the
Once the FTC gets control of income, it has control of content, and it's in charge of all
American broadcast programming.
Well, why is it, why does it want to do this? Why does it want to take control?
Perfectly obvious, because appropriations and power are to bureaucrats what profits is to
business. In 1962 the FTC had $10 million appropriations. In 1968, $15. This year, $66 million. The a, the salary
of an FTC commissioner has gone from $20,000 a year to $50,000. They're just as anxious to increase their power
and their jurisdiction as business is to sell its products because that's their product.
I'd like to ask you.
Mr. Diamond, a very quick question.
I'd like to ask you a very short question that I've asked Mr. Jencks. Is television
advertising to children unfair and deceptive?
Some of it is and some of it isn't. It's like asking is sex obscene. It's a ridiculous
question. The ads that are unfair and deceptive can in fact be prevented now and they don't need a rule. To pass a
rule declaring all advertising to be inherently out to be deceptive or advertising for a particular category to be
deceptive is roughly, ah, equivalent to declaring all sex to be obscene.
Ah, and with that we go to Mr. Johnson for some questions for Mr. Loevinger.
Mr. Loevinger, do you think it's desirable to encourage children to increase their
consumption of sugar?
I think it's desirable to encourage children to consult their parents on the
And wouldn't it be easier for the parents in doing that if they did not have to deal with
the efforts of an $8 billion industry working on the mind of a three-year old child incapable of understanding a
Now, let's forget this $8 billion figure, Nick.
The broadcasters certainly don't forget it.
Government spills that much in a year. Last year HEW lost $7.4 billion.
Frankly, I don't know how...
More money is wasted every week by government than is earned by the television industry in
Could we perhaps address the issues before us, Mr. Loevinger?
Well, I, I just wanted...
We were talking about.
...to get rid of these demagogic figures that you're throwing around, trying to prejudice
We're talking about your industry, sir, spending some 16,000--
Not my industry. Not my, it's my government, but it's not my industry.
Well, it happens to be one of your clients. We're talking about the industry that you
represent spending some 16,000 times what the Federal Trade Commission is spending, engaged in. Let's keep it in
perspective, sir, please. Now, I would ask you. Here's a box - Cookie Crisp. Says on the back of it, "My new
cereal tastes like little cookies." Look at this if you will. Read it.
You know, that's dandy, and I suppose you object to showing this to children too young to
read. Is that the point?
What we object to, what we wish to question you about, Mr. Loevinger, is the propriety of
saying in the advertising that it is desirable to having cookies for breakfast. Do you think that that's a fair
way to sell to young children?
I don't know. It depends on what's in the cookies. What kind of cookies. Bran cookies? My
wife makes cookies that are extremely nutritious.
I see. So that if...
Thing is, you want to sell everything by fiat, by rule. You're an authoritarian, Mr.
Johnson. You want everything...
No, I'm just an advocate--
...to be decided by some bureaucrat in Washington.
I'm just trying to ask some questions.
I want things to be decided by intelligent people.
I would, I would like.
I want parents to guide and teach their children.
I would like some.
Mr. Loevinger, I'm going to have to ask you to let Mr....
...intelligent people to have an opportunity to, ah, focus on these issues.
Well, I thought I was testifying and he was asking the questions. He wants to make
It's very difficult. Well, I, I'll let the audience decide who's making the speeches and
who's trying to ask the questions, Mr. Loevinger.
Well, naturally, I'm a witness, I've got to....
Will you take this question, please? Let me put this question to you, Mr. Loevinger. Do
you think adults are entitled to be protected from deceptive advertising?
And I think that the FTC--
What then is your objection--
...does it all the time.
...to also providing protection for children from deceptive advertising? Or is it your
position that only adults should be protected from deceptive advertising, but not children?
No, not at all.
Because what the Federal Trade Commission is trying to do in this case is simply inquire
into the issue...
...of, of deceptive practices...
...in advertising to children. If you think it's nonsense.
Your, your assistant, Mr. Westen, whose was one of the witnesses here...
Mr. Westen is not my....
...has written, he was your former assistant. You trained him...
You want me to talk about all your legal assistants? I'm very proud of Mr. Westen, as a
matter of fact.
And he's written, he's written, let me answer the question. He's written a 350 page brief
in favor of this proposition that doesn't have a word against it, and he's going to advise the Commission
I think you're...
...whether it's desirable...
...to adopt the rule.
...representing the, I think you're...
This inquiry is a phony.
I think you're unfairly representing the character of that document. I think if in fact
you had read it and represented it honestly, you would have to concede that the document prepared by the Federal
Trade Commission repeatedly says that these are tentative proposals, that they seek alternatives, that they are
not clear about where the dividing line would be, they are open to considering all kinds of alternative remedies.
They are certainly open to hearing from your industry and your clients, as I'm sure you will let them hear from
them. Ah, and they are in no sense locked in cement. This is an inquiry? it is open to the public.
Are you making.
...the members of the public.
...or asking a question, Mr. Johnson.
Mr. Johnson, we'll need a brief question and a very brief answer.
Well, I'm not, I don't know whether we can get the brief answer, but I'll, I'll try to,
ah, I'll try to give you a brief question.
Well, if you'd ask questions, you'd get brief answers.
Why are you advertising to children if you're trying to sell the parents?
I'm not, but the advertisers presumably are because they wish, if child, they wish to
shift brand preferences. The evidence is unmistakenly clear that television advertising doesn't increase or
decrease consumption of particular products. It does have to do with shifting brand preferences.
All right, we'll...
And if these things were labeled properly so that parents could see what's on 'em, maybe
they'd have a better chance to give them guidance and that's what the game is all about.
We'll have to go. Mr. Diamond, one more question please for Mr. Loevinger.
Mr., Mr. Loevinger, we've, we've heard tonight about first steps. Let's, let's put the
cards on the table. Isn't this an attempt to legislate taste in food, taste in television, taste in consumer
Of course it is. This is what the whole thing's about. Instead of going through the
laborious process of looking at ads to children, saying this is or is not deceptive, it is or is not fair, they
want to pass a rule and say everything of a particular category is bad or good. And you can't legislate that all
things are bad or good. It's like declaring certain people are wise or stupid.
Not all children are stupid.
Mr. Johnson, one final question for Mr. Loevinger.
Mr. Loevinger, the Supreme Court has repeatedly said that the First Amendment does not
protect an advertiser's attempt to profit from deceptive advertising. Now, do you disagree with the Supreme Court
on this issue?
No, but the premise of that is that it is must be determined to be deceptive and you can't
legislate conclusions in particular cases.
It would be illegal if Congress tried it and it's just as bad when the FTC tries it.
All right, thank you, thank you, Mr. Loevinger for joining us on THE ADVOCATES. All right,
and now, ladies and gentlemen, and now each advocate has one minute for a summary. Mr. Johnson, you're
Well, it's just plain common sense that TV commercials should not be aimed at young
children. We know that as parents, and the polls show that we feel very strongly about it. Not surprisingly the
experts agree. The lawyers tell us the Federal Trade Commission is well within its legal authority. Children get
special protections under the law. There's no reason they shouldn't get protection from deceptive advertising,
especially when it involves a health hazard. It's the corporate profits of broadcasters that are at issue, not
their freedoms. They are making $600 million of their $8 billion a year advertising to your children.
Understandably, they don't want to give it up. But what the FTC is proposing is very modest. The same sugared
products as are now sold will still be available, everyone of them. They'll still be advertised on television, but
to parents. All the FTC is proposing is limiting the deceptive advertising of these products to children.
All right, Mr. Johnson.
What's really involved in this case is parental freedom. Your right to decide what your
children are going to eat, without having to compete with an $8 billion bully.
Thank you, Mr. Johnson.
I urge you to vote yes...for your children's sake.
Thank you, Mr. Johnson. Mr. Diamond.
Well, we've shown why these proposals open the door to censorship, Professor Gussow's
first step, without doing anything directly to improve children's health. We care about our children too, and we
recognize a proper role for government action, but not at the expense of constitutional rights. If we want to
improve our children's health, let's put more money and effort into nutritional education at day care centers, and
into school lunches, and into the programs that address kids' real needs. The responsibility for good eating
habits, good television habits, good habits in general, must remain with parents not the federal government.
Parents can learn the magic word, no. These regulations are an attempt by a special interest group, groups, to
legislate morality. And that kind of intrusion on our freedom is the last thing that we and our children need.
Thank you. Thank you, gentlemen. Thank you and, and now we turn, and now we turn to you in
our audience and ask what you think about the questions raised in tonight's debate. SHOULD THE FEDERAL TRADE
COMMISSION BAN ADVERTISING ON CHILDREN'S TELEVISION? Send us your vote, yes or no, on a postcard to THE ADVOCATES,
Box 1978, Boston 02134. If you'd like a transcript of tonight's debate or transcripts of our previous debates,
please mail a check or money order for $2.00 to that same address, THE ADVOCATES, Box 1978, Boston 02134. Two
weeks ago THE ADVOCATES debated the question, SHOULD THE FEDERAL GOVERNMENT GIVE TAX CREDITS TO HELP PAY FOR
SCHOOL TUITION? Those of you who viewed the program responded this way: 938 in favor of a tax credit and 1,669
against. Four weeks ago THE ADVOCATES debated the question, SHOULD CONGRESS PROVIDE MORE PROTECTION FOR UNION
ORGANIZING? Eventually, we counted nearly 11,000 votes from across the country, just over 4,000 in favor and just
over 7,000 opposed. So much of the mail was clearly organized and some of it sent more than two weeks after the
program, that the tally reflects much more who got out the vote than the opinions of those who watched the debate.
And now with thanks to our advocates and their distinguished witnesses, we conclude tonight's debate.