CHICAGO - A consumer group wants to keep Tony the Tiger from promoting sugary cereals on the SpongeBob SquarePants cartoon show, or anywhere else kids are watching.

The Center for Science in the Public Interest Wednesday announced legal action to try to stop the Kellogg Co., maker of cereals like Frosted Flakes, and Nickelodeon cable network Viacom Inc., from marketing junk food to children.

A planned lawsuit will ask a Massachusetts court to stop the companies from marketing junk foods in venues where 15 percent or more of the audience is under age 8, and to stop marketing junk foods through Web sites, toy giveaways, contests and other techniques aimed at that age group.

The planned lawsuit in Massachusetts is the latest attempt to use the courts to try to battle the growing obesity crisis in the United States.

A widely watched lawsuit filed in 2002 accused fast-food leader McDonald’s Corp. of using misleading advertising to lure children into eating unhealthy foods. McDonald’s has called that lawsuit frivolous and parts of the case have been dismissed.

In the Massachusetts case, plaintiffs contend that the two companies are harming children since the overwhelming majority of food products they market to children are high in items such as sugar and fat or nearly devoid of nutrients.

“We have not been served with any legal papers,” Nickelodeon said. “That said, Nickelodeon has been an 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.”

Nickelodeon has also licensed its characters for "good-for-you" products, such as a deal that has SpongeBob characters on packages of Grimmway carrots.

Kellogg could not be immediately reached for comment.

Of 168 ads for food that appeared on Nickelodeon during a review in the fall, 88 were for foods with poor nutritional quality, the center said. Nickelodeon characters like SpongeBob SquarePants were also used on packages of “junk foods” like Kellogg’s Wild Bubble Berry Pop-Tarts, the center said.

Meanwhile, the center also reviewed 27.5 hours of Saturday morning programming and found 98 percent of the commercials promoted what it called “nutritionally poor foods.”

“As a parent, I do my best to get my kids to eat healthy foods,” Sherri Carlson, a plaintiff and mother of three, said in the center’s news release. “But then they turn on Nickelodeon and see all those enticing junk-food ads.”

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Besides the Center for Science in the Public Interest, other plaintiffs in the case include the Boston-based Campaign for a Commercial-Free Childhood and Andrew Leong, a parent from Brookline, Massachusetts.

Massachusetts law requires that companies be given 30 days notice before a lawsuit is filed and the Center for Science in the Public Interest said it was giving that notice Wednesday.

FOOD GIANTS TARGETED IN $2 BILLION LAWSUIT

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

January 18, 2006

By Ira Teinowitz

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.

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.

Parents Sue Junk Food Advertisers

SpongeBob May Have to Lighten Up

Parents and advocacy groups have announced their intent to file suit against Viacom and Kellogg to stop them from marketing junk food to young children.

The plaintiffs contend that these two companies are directly harming kids' health since the overwhelming majority of food products they market to children are high in sugar, saturated and trans fat, or salt, or almost devoid of nutrients.

They will ask a Massachusetts court to enjoin the companies from marketing junk foods to venues where 15 percent or more of the audience is under age eight, and to cease marketing junk foods through web sites, toy giveaways, contests, and other techniques aimed at that age group.

The plaintiffs are the Center for Science in the Public Interest (CSPI), the Boston-based Campaign for a Commercial-Free Childhood, and two Massachusetts parents, Sherri Carlson of Wakefield and Andrew Leong of Brookline.

Their announcement comes six weeks after a landmark report from the Institute of Medicine concluded that food advertising aimed at kids gets them to prefer -- and request -- foods high in calories and low in nutrients.

"Nickelodeon and Kellogg engage in business practices that literally sicken our children," said CSPI executive director Michael F. Jacobson. "Their marketing tactics are designed to convince kids that everything they hear from their parents about food is wrong. It's a multimedia brainwashing and re-education campaign—and a disease-promoting one at that. And parents are fed up."

Massachusetts' consumer protection law requires 30 days' notice of such a lawsuit, which the plaintiffs served on the defendants today.

"As a parent, I do my best to get my kids to eat healthy foods," said Sherri Carlson, a plaintiff and mother of three.

"But then they turn on Nickelodeon and see all those enticing junk-food ads. Adding insult to injury, we enter the grocery store and see our beloved Nick characters plastered on all those junky snacks and cereals. This irresponsible marketing to young children undermines my efforts as a parent and must be stopped."

This past fall, CSPI analyzed food advertising on Nickelodeon's televised programming and in Nickelodeon magazine and marketing on food packaging that bears Nickelodeon characters.

CSPI also analyzed Kellogg's Saturday-morning television advertisements, ads in kid-targeted magazines, on-package marketing, and other media. Nickelodeon's programming is aimed at kids aged 2 to 11, according to company documents, and the Nick Jr. block of programming is aimed at kids aged 2 to 5.

Of 168 ads for food that appeared on Nickelodeon during CSPI's review, 88 percent were for foods of poor nutritional quality. The September and October issues of Nickelodeon magazine contained seven full-page food ads, all of which were for junk foods.

Of 15 foods bearing Nickelodeon characters at a Washington, DC, supermarket, 60 percent were junk foods, including Fairly Odd Parents Orange & Creme Miniatures Kit Kat bars and SpongeBob SquarePants Wild Bubble Berry Pop-Tarts.

CSPI also reviewed 27.5 hours of Saturday-morning programming to analyze Kellogg marketing. It found 54 Kellogg ads, 98 percent of which were for nutritionally poor foods. (Another Kellogg ad, for Apple Jacks cereal, had previously come under fire from CSPI for disparaging apples, of all things.)

Of 80 Kellogg foods found in the supermarket with kid-friendly on-package marketing, 84 percent were for nutritionally poor foods. CSPI found 21 kid-friendly web sites for Kellogg products, all of which highlighted junk foods. And of 92 child-oriented branded items Kellogg had for sale on the web, 82 percent had a logo or mascot from a junk-food brand.

"The thrust of Nickelodeon's and Kellogg's likely defense will be to blame parents, since, after all, parents ultimately are responsible for their kids' diets," said CSPI litigation director Steve Gardner, lead counsel for the plaintiffs.

"But then again, Kellogg and Nick aren't directing their marketing messages at parents; they're going right behind parents' backs. Parents are ultimately responsible for making sure their young kids don't get hit by cars. But if someone's recklessly driving around your neighborhood at 80 miles an hour, you're going to want to stop them."

In 1977 CSPI and Action for Children's Television first petitioned the Federal Trade Commission (FTC) to curb junk-food advertising aimed at children.

The commission staff began proposing remedies, including one that would have banned all advertising to children, since it found that any ads aimed at young children were inherently unfair and deceptive.

Broadcasters, food makers, and other companies quickly prevailed upon their congressional allies to quash the FTC's nascent effort. Now, a self-regulatory body, the Children's Advertising Review Unit (CARU), sets voluntary technical guidelines for advertising to kids and adjudicates disputes.

One former broadcasting executive, Lisa Flythe, who served as director of commercial clearances for MTV Networks and vetted ads on Nickelodeon, says CARU lacks teeth.

"There are no real penalties for running afoul of CARU's guidelines, and most of their guidelines are very general," said Flythe. "Besides, CARU does not arbitrate what foods are appropriate to market to children."

One company, Kraft, has set nutritional guidelines for the foods it markets to children, and does not advertise to children under six.

Although Nickelodeon has engaged in public relations activities on the issue of childhood nutrition, notably a promise to make SpongeBob and other characters available to marketers of some healthful foods, it hasn't set minimum nutrition thresholds for the foods its characters plug or that run on its station.

"For over thirty years, public health advocates have urged companies to stop marketing junk food to children," said Susan Linn, co-founder of the Campaign for a Commercial-Free Childhood. "Even as rates of childhood obesity have soared, neither Viacom nor Kellogg has listened. We can no longer stand by as our children's health is sacrificed for corporate profits."

The Massachusetts statute the plaintiffs are suing under provides for damages of $25 per violation of unfair or deceptive advertising.

In this case, a violation would be occur each time that a Massachusetts child sees an ad for a junk food on Nickelodeon, sees a Kellogg junk-food ad on that or another network, or sees Kellogg junk-food packaging that bears SpongeBob SquarePants, Dora the Explorer, or other cartoon characters.

If the companies go to trial and are found liable, the verdict could be in the billions of dollars, but CSPI's attorneys say the plaintiffs would settle for a commitment from the companies to change their marketing practices.

"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," said Jacobson. "Yet companies like Kellogg, Nickelodeon, and others have been doing it with impunity, and government has done nothing for decades. This litigation is truly a last resort --
and vitally important to children's health."

NEW YORK (AdAge.com) -- Kellogg co. might as well have painted a bull’s-eye on itself.

Slow to react
But unlike Kraft Foods, PepsiCo and other would-be defendants -- which shout out almost daily about proactive changes to their portfolios and ad practices -- Kellogg has seemingly ignored warning signs that the growing chatter over childhood obesity would lead down a path to litigation. Kellogg has stood by its existing products and strategies and made few changes to adapt to the newly nutrition-minded world.

The irony is that Kellogg was founded on principles of health and wellness, and in the 1970s broke ground by pressing the Food and Drug Administration to allow marketers to use health claims. Today, it’s drawing the ire of the Center for Science in the Public Interest and other special-interest groups.

'Shark in the water'
“CSPI is like a shark in the water,” said John Stanon, professor of food marketing at St. Joseph’s University, “and Kellogg has been a little slow to realize that they have to take a more aggressive PR stance to explain the things that they’re doing.”

While Kellogg’s master brand is still viewed by consumers as healthful, Landor Managing Director Allen Adamson said it still has many products that are less nutritious. So it needs to get ahead of the curve in talking about health initiatives, he said.

Kellogg’s first comments upon hearing about the lawsuit, intended to be filed in Massachusetts within 30 days by CSPI, the Campaign for Commercial-Free Childhood and two parents, were muted. A spokeswoman said only that the company is “proud of its products and the contributions they make to a healthy diet” and that “we have a long-standing commitment to marketing in a responsible manner.” As an afterthought, she added, “We will also continue to educate and inform consumers of all ages about the importance of both balanced nutrition and physical activity in maintaining a healthy lifestyle.”

Tony the Tiger
Tony the Tiger has since 2004 been trotted out as a mascot for physical activity, entreating kids to “Eat right, work hard, earn your stripes” in ads and Internet promotions, but otherwise Kellogg has been extremely late to the health party. The company trailed PepsiCo by nearly three years in announcing plans to reduce or eliminate trans fats in its Keebler cookies and crackers. It formed a health and wellness division only two months ago, which it has yet to announce publicly and which will focus more on the tastes of aging baby boomers than children.

The minor nods Kellogg has made towards more-healthful children’s products -- reduced-sugar versions of Frosted Flakes and Froot Loops and a whole-grain toddler cereal -- have flopped at retail.

Long struggle
The conflict between healthful products and profitable ones is an issue Kellogg has grappled with since its beginning. While wellness guru Dr. John Harvey Kellogg first served cornflakes at the Battle Creek Sanitarium in Michigan in 1897 in an effort to cure a variety of ailments, his brother Will Keith Kellogg added sugar to the recipe when he launched it more broadly as a mainstream breakfast food in 1906. (The seemingly prescient Dr. Kellogg disapproved of the move enough to sue his brother in an attempt to prevent the sugary cereal from bearing his name.)

It is only very recently that Kellogg has made a more concerted effort to reach out to children, more typically the target of General Mills and Kraft’s Post cereals. Kellogg in the late 1990s began to move beyond its more nutrition-oriented offerings and toward fun foods to gain back its leading position in cereal. In 2002, Kellogg announced a large-scale agreement with Disney for children's products (the line never really caught on). Having regained the lead by 2003, it launched a flurry of new products backed by loud marketing campaigns, among them Tony’s Cinnamon Krunchers, Pop-Tart Yogurt Blasts and Eggo Froot Loops Waffles.

Clearly, Kellogg has gotten a lot of bang for its bucks in children's marketing. While General Mills spends twice as much to push its products on Nickelodeon, CSPI picked Kellogg as the target of its suit, noting its “alluring product packaging, toy giveaways, contests, collectibles, kid-oriented Web sites, magazine ads and branded toys and clothes,” including a Froot Loops pillow that particularly irked CSPI Executive Director Michael Jacobson.

Kellogg's bottom line
From a bottom-line perspective, Kellogg may have had the right formula, though. Lehman Brothers analyst Andrew Lazar said that “Kellogg has done a much better job driving high-quality top- and bottom-line growth than Kraft, certainly, and than many other names in the food industry.”

Still, when it comes to children most observers think it’s time for Kellogg to try a new approach. Although there may not be fat profits in nutrition, Bill Keegan, director of Edelman’s crisis-management practice, believes “high-profile litigation will go a long way toward” encouraging Kellogg to adopt a healthful positioning. After all, he said, “Public sentiment is very important to them.”

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