[Federal Register Volume 75, Number 100 (Tuesday, May 25, 2010)]
[Notices]
[Pages 29340-29347]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-12511]


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FEDERAL TRADE COMMISSION


Agency Information Collection Activities; Submission for OMB 
Review; Comment Request

AGENCY: Federal Trade Commission (FTC or Commission).

ACTION: Notice.

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SUMMARY: The FTC proposes to issue compulsory process orders to major 
food and beverage manufacturers, distributors, and marketers and quick 
service restaurant companies for information concerning, among other 
things, their marketing activities and expenditures targeted toward 
children and adolescents and nutritional information about the 
companies' food and beverage products marketed to children and 
adolescents. As required by the Paperwork Reduction Act (PRA), the FTC 
is submitting the proposed information collection to the Office of 
Management and Budget (OMB) for review and is seeking public comments 
on the proposed information collection and the associated PRA burden 
estimates.

DATES: Comments must be filed on or before June 24, 2010.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form, by following the instructions in Part 
IV of the SUPPLEMENTARY INFORMATION section

[[Page 29341]]

below. Comments in electronic form should be submitted by using the 
following weblink: (https://public.commentworks.com/ftc/foodmarketingPRA2) (and following the instructions on the web-based 
form). Comments in paper form should be mailed or delivered to the 
following address: Federal Trade Commission, Office of the Secretary, 
Room H-135 (Annex J), 600 Pennsylvania Avenue, N.W., Washington, D.C. 
20580, in the manner detailed in the SUPPLEMENTARY INFORMATION section 
below.

FOR FURTHER INFORMATION CONTACT: Requests for additional information 
should be addressed to Carol Jennings, (202) 326-3010, or Sarah Botha, 
(202) 326-2036, Attorneys, Division of Advertising Practices, Bureau of 
Consumer Protection, Federal Trade Commission. The FTC staff contacts 
can be reached by mail at: Federal Trade Commission, 600 Pennsylvania 
Avenue, NW, NJ-3212, Washington, D.C. 20580.

SUPPLEMENTARY INFORMATION:

I. Background and Description of the Proposed Information Collection

    In July 2008, the FTC published a report entitled Marketing Food to 
Children and Adolescents: A Review of Industry Expenditures, 
Activities, and Self-Regulation (FTC 2008 Report).\1\ The 2008 Report 
analyzed expenditures and marketing activities by 44 food companies 
across various promotional activity and food product categories for the 
year 2006. The report also reviewed policies and initiatives undertaken 
by companies to encourage healthy eating and lifestyle choices by 
children and adolescents, and evaluated the extent to which companies 
had implemented recommendations of the report from a workshop on 
Marketing, Self-Regulation & Childhood Obesity that the FTC and the 
Department of Health and Human Services jointly convened in 2005.\2\
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    \1\ The study was requested by Congress in conjunction with the 
Commission's FY 2006 appropriation (Pub. L. No. 109-108). The 
Conference Report (H.R. Rep. No. 109-272 (2005)) for this 
appropriations law incorporated by reference language from the 
Senate Report (S. Rep. No. 109-88 (2005)) instructing the FTC to 
prepare a report on food industry marketing activities and 
expenditures targeted to children and adolescents.
    \2\ See Federal Trade Commission & Department of Health and 
Human Services, Perspectives on Marketing, Self-Regulation & 
Childhood Obesity (2006), at (http://www.ftc.gov/os/2006/05/PerspectivesOnMarketingSelf-Regulation&ChildhoodObesityFTCandHHSReportonJointWorkshop.pdf).
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    The Commission obtained data and information for the 2006 study by 
issuing compulsory process orders to producers, distributors, and 
marketers of foods frequently advertised to children (ages 2-11) and 
adolescents (ages 12-17), such as carbonated and non-carbonated 
beverages, snacks, baked goods, cereals, prepared meals, candy, dairy 
products, and restaurant food. The study found that the reporting 
companies spent more than $1.6 billion marketing their products to 
children and adolescents in 2006, and employed a variety of techniques, 
including promotion through traditional measured media, the Internet 
and other ``new'' media, product packaging, and in-store advertising, 
as well as integrated campaigns that combined several techniques and 
cross-promotions with media and entertainment companies.
    In addition to presenting the study findings, the FTC 2008 Report 
included several recommendations, among them that companies marketing 
food or beverage products should: (1) adopt meaningful, uniform 
nutrition-based standards for all products marketed to children under 
age 12; and (2) apply these standards to all advertising and 
promotional techniques.\3\ The Commission indicated it would issue a 
follow-up report assessing the extent to which the FTC 2008 Report 
recommendations have been implemented and whether additional measures 
may be warranted.
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    \3\ These advertising and promotional techniques include 
television, print, and radio; website, Internet, and digital 
advertising; word-of-mouth and viral advertising; product packaging 
and retail promotion; movie and video promotion; use of premiums in 
connection with the sale of a product; product placements, character 
licensing, and cross-promotion; athletic sponsorship; celebrity 
endorsements; and in-school marketing.
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    The FTC proposes to send information requests to 48 food and 
beverage manufacturers, distributors, and marketers and quick service 
restaurant companies in the United States, 40 of which were recipients 
of information requests as part of the Commission's 2006 study. The 
companies that will receive these information requests are those 
marketing and selling the categories of food and beverage products that 
appear to be advertised to children and adolescents most frequently.\4\ 
Included among the 48 companies to which the FTC proposes sending the 
information collection are several fruit and vegetable producers, 
distributors, and marketers. Traditionally, fruit and vegetable 
companies have not engaged in significant marketing efforts but, in 
recent years, some of these fruit and vegetable companies have packaged 
and promoted their products in ways likely to appeal to children, such 
as by using licensed characters popular with children in their product 
labels and displays. Gathering information on these practices will 
enable FTC staff to compare the marketing techniques and expenditures 
being used to market fruits and vegetables relative to foods that 
traditionally have been more frequently marketed to children and 
adolescents.
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    \4\ Among the 48 proposed recipients are the 16 members of 
Council of Better Business Bureaus Children's Food and Beverage 
Advertising Initiative (CFBAI). The CFBAI member companies 
reportedly account for at least three-fourths of children's food and 
beverage television advertising expenditures; therefore, the 
Commission estimates that the proposed FTC study will account for 
significantly more than three-fourths of advertising expenditures 
directed toward children and adolescents.
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    The information requests will seek much of the same types of data 
and information collected for the 2006 study, such as: (1) the 
categories of foods\5\ marketed to children (ages 2-11 years) and 
adolescents (ages 12-17 years); (2) the types of measured\6\ and 
unmeasured\7\ media techniques used to market food products to children 
and adolescents; (3) the amount spent to communicate marketing messages 
about food products to youth; (4) the nature of the marketing 
activities used to market food products to youth; (5) marketing to 
youth of a specific gender, race, ethnicity, or income level; and (6) 
marketing policies, initiatives, or research in effect or undertaken by 
the companies relating to the marketing of food and beverage products 
to children and adolescents. The FTC also proposes to gather nutrition 
information about products the companies marketed to children and 
adolescents in calendar years 2006 and 2009, to evaluate possible 
changes in the nutritional content, and variety, of youth-marketed 
foods. Further, the Commission proposes to seek scientific and market 
research exploring psychological and other factors that may contribute 
to food advertising appeal among youth.
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    \5\ The specific categories that the FTC will examine are: 
breakfast cereals; snack foods; candy and frozen desserts; dairy 
products; baked goods; prepared foods and meals; carbonated 
beverages; fruit juice and non-carbonated beverages; restaurant 
foods; and fruits and vegetables.
    \6\ ``Measured media'' include methods typically measured by 
market research companies such as television, radio, print (magazine 
and newspaper), and some forms of Internet advertising.
    \7\ ``Unmeasured media'' include methods for which audience size 
is not typically measured, such as in-store marketing (including 
shelf placement), events, package promotions, digital marketing, and 
product placement in entertainment media (including television 
shows, movies, video games, and music recordings).
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    The proposed information requests will require the companies to 
provide their marketing activities and expenditures during the calendar 
year 2009 in 18 different measured and

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unmeasured media categories,\8\ and will require expenditure reporting 
in each media category by food category, by brand, and, where such 
advertising exists, by sub-brand. Expenditures will be reported 
separately for marketing activities directed to children ages 2-11 and 
for those directed to adolescents ages 12-17. This information will 
allow the agency to analyze how industry members allocate their 
promotional expenditures among particular food and beverage products 
and particular media for each age group. Total marketing expenditures 
for each food product, and within each promotional activity category, 
will also be collected to permit the agency to analyze the percentage 
of marketing expenditures for any product or in any media category that 
is directed to children or adolescents.
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    \8\ These are: (1) television advertising; (2) radio 
advertising; (3) print advertising; (4) company-sponsored Internet 
sites; (5) other Internet and digital advertising; (6) packaging and 
labeling; (7) movie theater/video/video game advertising; (8) in-
store advertising and promotions; (9) specialty item or premium 
distribution; (10) public entertainment events; (11) product 
placements; (12) character licensing, toy-co-branding, and cross-
promotions; (13) sponsorship of sports teams or individual athletes; 
(14) word-of-mouth and viral marketing; (15) celebrity endorsements; 
(16) in-school marketing; (17) advertising in conjunction with 
philanthropic endeavors; and (18) other expenditures.
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    The proposed information requests also will require the 48 
respondents to provide specific nutritional data for each food product 
that the companies marketed to children or adolescents in 2009.\9\ 
Recipients of the FTC's previous information requests for the 2006 
study likewise must provide the requested nutrition data for each food 
product that the company identified as marketed to children or 
adolescents in 2006.\10\ The nutrition data to be requested include 
common nutrient information that typically appears on the Nutrition 
Facts panel of packaged goods, such as serving size, total calories, 
calories from fat, total fat, saturated fat, trans fat, cholesterol, 
sodium, potassium, total carbohydrate, dietary fiber, sugars, protein, 
vitamin A, vitamin C, calcium, and iron. The Commission also intends to 
seek certain other information, including added sugar, all grain 
content and whole grains content, fruit and fruit juice content, 
vegetable and vegetable juice content, dairy content, and information 
on certain protein-rich foods (e.g., fish, lean meat/poultry, egg, 
nuts, and beans). This information will enable the Commission to 
effectively analyze the nutritional profile of foods marketed to 
children and adolescents.
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    \9\ If a company reformulated the food product in 2009, the 
company must provide nutritional data for the last of the 
formulations in 2009.
    \10\ For ease of reporting, the FTC will provide each company 
that submitted a Special Report for calendar year 2006 with a pre-
populated spreadsheet showing the products that the company 
previously identified as marketed to youth.
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    In sum, the proposed information requests seek comprehensive 
information about activities and expenditures to promote food and 
beverages to children and adolescents, and the nutritional composition 
of the products marketed to youth. As explained above, this information 
will allow the agency to analyze how industry members allocate their 
promotional activities and expenditures among various media and for 
different food products. In addition, the FTC will be able to evaluate 
the impact of self-regulatory efforts on the nutritional profiles of 
foods marketed to children and adolescents.
    The FTC has the authority to compel production of these data and 
information from food and beverage manufacturers, distributors, and 
marketers, and quick service restaurant companies under Section 6(b) of 
the FTC Act, 15 U.S.C. 46(b). Under the PRA, the FTC must seek approval 
from OMB for the information collection, because the number of 
separately incorporated companies affected by the Commission's requests 
will exceed nine entities. 44 U.S.C. 3501-3520. As required by the PRA, 
the FTC published a Federal Register Notice seeking comments from the 
public concerning the proposed collection of information from food and 
beverage companies and quick service restaurants. See 74 FR 48072 
(Sept. 21, 2009) (hereinafter ``September 2009 Notice''). In response, 
the FTC received six comments (discussed below). Pursuant to the OMB 
regulations (5 CFR part 1320) that implement the PRA, the FTC is 
providing this second opportunity for public comment while requesting 
that OMB grant the clearance for the proposed collection of 
information. All comments should be filed as prescribed in Part IV of 
this SUPPLEMENTARY INFORMATION section, and must be received on or 
before June 24, 2010.

II. Public Comments

    In response to the September 2009 Notice, the Commission received 
comments from the Robert Wood Johnson Foundation Center to Prevent 
Childhood Obesity (RWJF Center), Children Now, Food Marketing to 
Children Workgroup (FMC Workgroup), the African American Collaborative 
Obesity Research Network (AACORN), the Children's Food and Beverage 
Advertising Initiative (CFBAI), and the Grocery Manufacturers 
Association (GMA).\11\ Two of the commenters expressly favored the 
proposed data collection, and none of the commenters opposed the data 
collection. All commenters made suggestions for enhancing the quality, 
utility, and clarity of the information to be collected, and one 
commenter offered suggestions for reducing the burden on the companies.
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    \11\ The comments are available at (http://www.ftc.gov/os/comments/foodmktgkids-2/index.shtm).
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A. General Support for the Data Collection

    The RWJF Center commented that the proposed information collection 
will contribute to the body of knowledge regarding youth-directed food 
and beverage marketing practices. The FMC Workgroup offered strong 
support for the proposed data collection, viewing it as necessary and 
useful.

B. Utility of the Information Collection

    In its September 2009 Notice, the FTC invited comments on whether 
the proposed collections of information are necessary for the proper 
performance of the functions of the FTC, including whether the 
information will have practical utility. The RWJF Center commented that 
the FTC's proposed information collection is important to expanding 
knowledge of food and beverage marketing given changes that have 
occurred in the marketing landscape in the past few years, such as 
novel new media and market research techniques. The FMC Workgroup 
commented that collecting 2006 and 2009 data will allow the FTC to 
assess the extent to which companies have implemented the Commission's 
2008 recommendations, and to identify additional actions that may be 
warranted. The FMC Workgroup also agreed that collecting nutritional 
data will allow the Commission to better evaluate the impact of self-
regulatory pledges.

C. Suggestions for Improvements to Proposed Information Collection

    The FTC invited comments in its September 2009 Notice on ways to 
enhance the quality, utility, and clarity of the information to be 
collected. The FTC received several suggestions for enhancing the FTC's 
proposed collection of marketing data by collecting the following: (1) 
exposure data for measured media and new media (e.g., Internet, 
digital, and viral marketing); (2) additional data for new media, 
including certain expenditure data and measures of ad effectiveness;

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(3) additional market research data; (4) other marketing data based on 
race, ethnicity, age, and other demographic indicators; and (5) data 
regarding nutrition information and specific food categories.
1. Exposure data
    Children Now, the RWJF Center, and the FMC Workgroup suggested that 
gathering exposure data is important to accurately evaluate child and 
adolescent exposure to measured media and various interactive media 
techniques. The RWJF Center and Children Now suggested the FTC gather 
data on exposure and impressions, and the RWJF Center also suggested 
gathering data on the demographic makeup of the audiences (e.g., 
distributions by age group and among racial and ethnic minority 
populations). The FMC Workgroup requested that exposure data be 
collected and disaggregated among different types of new media.
    The Congressional appropriations language upon which the FTC 2008 
Report was based instructed the FTC to prepare a report on food 
industry marketing activities and expenditures ``targeted toward'' 
children and adolescents. In other words, Congress asked the FTC to 
examine food advertising intentionally marketed to youth. Because it 
was not feasible for the Commission to make ad-by-ad, fact-intensive 
determinations of intent, the FTC relied on objective criteria. For 
television, an ad was deemed to be child-targeted if the company's 
marketing plan so indicated or if the advertisement appeared during a 
program that had a 30% child audience; a 20% threshold was used for 
adolescent-targeted ads. The percentage threshold for child-targeted 
Internet advertising was 20% (as opposed to 30% for television) because 
relatively fewer children are active Internet users. The FTC chose 
these percentages because they are approximately double the percentages 
of children and adolescents in the medium's overall audience. The 
Commission inferred that a company intended to target children or 
adolescents by advertising on a show or website that disproportionately 
attracted youth to such a high degree.
    Although the ``percentage of audience'' approach runs some risk of 
under-inclusiveness - i.e., by not capturing ads placed on programs 
that have a relatively low percentage, but high number, of child or 
adolescent viewers - it established an adequate benchmark for future 
assessments of whether food advertisers have altered their youth-
targeted marketing. By comparison, an approach that focuses on overall 
child or adolescent exposure to food ads runs a much higher risk of 
over-inclusiveness. An exposure approach does not distinguish between 
ads placed on children's programming and ads placed on general audience 
or adult programs that happen to have many child viewers. Although 
exposure data might show whether children and adolescents are seeing 
more or fewer ads in particular food categories,\12\ these data would 
not aid the Commission's assessment of whether the level of intentional 
targeting of youth with food and beverage ads has changed over time.
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    \12\ To do this comparison, the Commission also would have to 
collect this data for 2006, thereby increasing the compliance burden 
on the companies.
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    Separately, an exposure approach could substantially increase the 
compliance burden on the companies. An ad for a food product might 
generate a substantial number of youth impressions simply because it 
ran on programs with large general audiences, such as American Idol or 
The Simpsons. Yet, the same ad might never have run on shows watched 
predominantly by children or adolescents. Thus, an exposure approach 
potentially could encompass many more food products than the percentage 
of the audience approach.\13\
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    \13\ Indeed, GMA commented that the FTC's criteria of a ``30% 
Children Audience'' and a ``20% Adolescent Audience'' are too broad 
to determine if certain types of advertising are directed to 
children or adolescents.
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    Finally, the Commission notes that the FTC\14\ and several outside 
researchers have conducted exposure analyses of food and beverage 
television advertising.\15\ In addition, the Commission's follow-up 
report will include: an analysis of television expenditures on the top 
five broadcast shows for children and adolescents based on audience 
share; data on online display ad impressions for foods generated on 
child- or teen-oriented websites; and an analysis of time spent by 
youth on websites operated by food companies based on data purchased 
from media research firms.
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    \14\ Federal Trade Commission, Bureau of Economics Staff Report, 
Children's Exposure to Television Advertising in 1977 and 2004: 
Information for the Obesity Debate (2007), at (www.ftc.gov/os/2007/06/cabecolor.pdf).
    \15\ E.g., Harris, et al., Rudd Center for Food Policy & Obesity 
at Yale Univ., Cereal F.A.C.T.S. (2009), available at 
(www.cerealfacts.org/media/Cereal_FACTS_Report.pdf); Powell, et 
al., Nutritional Content of Television Food Advertisements Seen by 
Children and Adolescents in the United States, 120 Pediatrics 576-83 
(2007); Powell, et al., Exposure to Food Advertising on Television 
Among U.S. Children, 161 Archives of Pediatrics & Adolescent Med. 
(2007).
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2. New media
    The RWJF Center and Children Now suggested that the FTC gather 
additional expenditure data for new media, such as information on paid 
search term and display advertising, email marketing, mobile marketing, 
digital marketing, social media marketing, and behavioral targeting. 
Both commenters referenced increased use of emerging digital media 
practices in the last few years. The RWJF Center also requested that 
the Commission assess the effectiveness of online and mobile marketing 
by evaluating companies' implementation of self-regulatory policies and 
use of other measures of advertising effectiveness.
    As it did for the FTC 2008 Report, the Commission will request 
expenditure data for the forms of new media identified above, including 
online display advertising, e-mail marketing, mobile marketing, and 
digital marketing. In addition to reporting on expenditures and 
promotional activities for these types of marketing, the follow-up 
report will include an analysis of online display advertising that may 
be targeted to youth and time spent at food company websites by youth, 
using data acquired from comScore and Nielsen Online. The Commission 
also will obtain data from comScore's Ad Metrix Mobile service to 
evaluate how much mobile marketing teens see and the amount of food ads 
they see relative to ads for other types of products on the mobile 
platform. For data on the effectiveness of online and mobile marketing 
and the use of behavioral targeting, the Commission will obtain 
marketing research studies from the food companies; to the extent the 
companies have researched the appeal and effectiveness of new media 
platforms and behavioral targeting to individuals under the age of 18, 
the Commission will evaluate and report on that research.
3. Market research data
    The RWJF Center requested that the FTC obtain information and 
expenditures on neuroscience and biometric studies used for developing 
or implementing food advertising, as well as research on advertising 
effectiveness. The FMC Workgroup agreed that the FTC should seek 
information on novel market research techniques (e.g., neuromarketing 
and biometric measures).
    The FTC has incorporated into the proposed information requests 
specific requests for market research on advertising effectiveness and 
neurological or other factors that may

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contribute to food advertising appeal among youth. More generally, the 
Commission believes the wording of the proposed Specification on market 
research is sufficiently broad to yield the type of information 
described by the commenters.
4. Targeted demographics data
    Several comments supported the Commission's proposal to collect 
information on food and beverage marketing directed to youth based on 
gender, race, ethnicity, or income level. The Commission believes this 
information is important to collect given the prevalence of obesity 
within particular minority youth populations.\16\ The FMC Workgroup and 
the AACORN noted that ethnic minority youth are the fastest growing 
segment among the youth population, and at the same time are at greater 
risk for obesity and related diseases. In addition, the AACORN cited to 
research indicating that African-American and Hispanic youth are 
exposed to more food marketing for less nutritious foods than youth in 
the general population.
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    \16\ For example, data from the Centers for Disease Control and 
Prevention (CDC) indicate disparities among adolescent racial and 
ethnic minorities, with prevalence of obesity highest among Hispanic 
adolescent boys and African-American adolescent girls. CDC website 
at (http://www.cdc.gov/obesity/childhood/trends.html). See also U.S. 
Dept. Health and Human Services, The Surgeon General's Vision for a 
Healthy and Fit Nation 2-3 (Jan. 2010), at (http://www.surgeongeneral.gov/library/obesityvision/obesityvision2010.pdf)
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    The FMC Workgroup and the AACORN suggested that the FTC obtain 
information on the ethnic minority youth groups targeted, the manner in 
which they are selected, the campaigns and products directed to those 
groups, and expenditure and exposure data for new media targeting those 
groups. The Commission's proposed Specification on targeted youth 
marketing based on gender, race, ethnicity, or income level seeks 
information on most of the issues identified by the commenters. For 
example, companies must identify the specific sub-populations to which 
reported expenditures and activities relate. In addition, companies 
must identify which of their policies and market research pertain to 
marketing to individuals of a specific gender, race, ethnicity, or 
income level.
5. Nutrition information and data on certain food product categories
    A key recommendation of the FTC 2008 Report was for industry to 
improve the nutritional profile of foods marketed to children and 
adolescents.\17\ To adequately assess the scope of nutritional 
improvements between 2006 and 2009, the Commission will gather detailed 
nutrition information from food and beverage companies.
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    \17\ See, e.g., FTC 2008 Report, at 67.
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    For purposes of evaluating changes in the nutrition profile of 
foods marketed to youth, the CFBAI recommended that the Commission 
consider the nutritional density of products and meals (e.g., servings 
of fruit or vegetable in a food). In addition, the CFBAI requested that 
the FTC analyze reductions in calories, fat, sugars, and sodium in 
products advertised by CFBAI participants between 2006 and 2009. The 
CFBAI also requested that the Commission examine marketing expenditures 
based on the food groups (e.g., fruit, dairy) contained in products and 
meals marketed to youth. The RWJF Center requested that FTC gather data 
on the specific products promoted by quick service restaurants in their 
advertising (e.g., kids meals, value meals).
    The Commission believes the types of nutrition data it proposes to 
collect are in keeping with the recommendations of the CFBAI and the 
RWJF Center. The FTC proposes to collect information on the nutritional 
density of products and meals marketed to youth, such as the fruit, 
vegetable, whole grain, and protein content per food serving. Likewise, 
the FTC will be able to analyze changes in calories, fat, sugars, and 
sodium of youth-marketed food products based on the nutrition data the 
Commission proposes to collect. The Commission will ask restaurant 
companies to list specific menu items, including those offered as 
children's meal combinations, and to provide expenditure and nutrition 
data for each item advertised to youth in 2009 and 2006. The Commission 
intends to evaluate youth-directed food marketing nutrition data in a 
manner consistent with the approach it took for analyzing the 2006 
expenditure data, and will report nutrition trends on an aggregated 
basis by food category and media category.\18\
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    \18\ As an alternative to providing nutritional information for 
each product advertised to youth, GMA suggested that the Commission 
extrapolate changes in the nutritional content of foods marketed to 
children and adolescents from 2006 to 2009 by collecting samples of 
product nutrition labels and allowing companies to estimate the 
number of products to which the labels apply. The Commission does 
not believe that GMA's suggested approach will provide accurate and 
reliable information upon which to evaluate the nutritional profiles 
of foods marketed to youth today as compared to those marketed in 
2006.
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D. Suggestions for Minimizing the Burden of the Information Collection

    In the September 2009 Notice, the FTC invited comments on ways to 
minimize the burden of the collection of information on those who are 
to respond. GMA responded; no individual companies submitted 
suggestions.
    GMA suggested that the FTC eliminate or consolidate collection of 
data from categories that accounted for few expenditures or activities 
based on the 2006 information collection. The Commission consolidated 
the collection of certain categories of information, such as combining 
the candy and frozen dessert food categories and the word-of-mouth and 
viral advertising categories.
    GMA urged the Commission to wait until after March 30, 2010 to 
issue the information requests, because 2009 calendar year data would 
not likely be available until late in the Second Quarter of 2010. This 
is a reasonable request and, under the current proposed time frame, the 
Commission would not issue the information requests until Summer 2010. 
GMA also requested that the Commission allow companies 120 days, rather 
than 90 days, to respond to the requests. The Commission believes that 
90 days is a reasonable deadline. The Commission will entertain 
requests for limited extension of the deadline on a case-by-case basis 
as it did in connection with the 2006 data collection.
    GMA asked that the FTC apply narrower criteria for youth-directed 
reportable expenditures than those used in the 2007 Orders to avoid 
over-reporting. For example, GMA asserted that some of the FTC's data 
requests were not tied to actual or potential audience thresholds, 
resulting in over-reporting of ad expenditures for programs in which 
seventy percent or more of the audience were not youth. GMA also 
indicated that it was overbroad to use ``G'' and ``PG'' ratings as 
criteria for defining youth-directed movie theater spending, and ``E'' 
ratings to define youth-directed video game spending. The Commission 
has narrowed the criteria for adolescent-directed movie theater and 
video game advertising by omitting reference to ``PG'' and ``E'' 
ratings and instead basing the determination on whether the viewing 
audience constituted at least 20% of persons ages 12-17. For assessing 
child-directed advertising, the Commission believes it is reasonable to 
maintain use of the ``G'' movie rating and the ``EC'' rating for video 
games.
    GMA suggested that the Commission drop the request for expenditure 
data on advertising purchased during the ``Top 5'' television shows - 
that is, the five broadcast programs with the largest number of 
adolescent viewers. In the FTC 2008 Report, the Commission did not 
include these expenditures in the

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aggregated figures of money spent on advertising to children and 
adolescents. Rather, the information was ``noted separately . . . to 
illustrate the point that children and adolescents are exposed to a 
great deal of advertising that is directed to a general, primarily 
adult, audience.''\19\ The Commission has decided not to request 2009 
expenditure data for the ``Top 5'' television shows; instead the FTC 
will purchase those data from a media research firm.
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    \19\ FTC 2008 Report at Appendix A, at A-4.
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    Finally, GMA expressed concern about the burden of collecting 
nutritional data from companies. The Commission does not believe that 
requiring companies to provide the information is burdensome. First, 
the nutrient data that the FTC proposes to seek are limited and are 
commonly analyzed in evaluating the nutritional quality of food 
marketed to children.\20\ Second, food and beverage companies often 
maintain databases with detailed ingredient information about their 
products in order to observe proper compliance control issues and food 
safety and labeling standards. The Nutrition Labeling and Education Act 
of 1990 and FDA regulations require packaged foods to bear nutrition 
labeling, which contains the majority of the nutrition content data 
that the Commission seeks.\21\
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    \20\ The data provide a snapshot comparing calendar years 2006 
to 2009; the FTC does not propose to seek information on each 
nutritional change that occurred between 2006 and 2009 for 
individual products.
    \21\ 21 U.S.C. 343(q); 21 CFR 101.9.
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E. Accuracy of Estimated Burden of the Information Collection

    In the September 2009 Notice, the FTC invited comments on the 
accuracy of the agency's estimate of the burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions used. The Commission estimated the total hours burden 
to be 12,250 and the total cost burden to be $3,675,000. The FTC 
offered broad ranges for estimated costs, which were separated into 
single-category and multiple-category company ranges, to account for 
differences in the number of brands and the amount of marketing the 
companies engage in for each brand.
    GMA commented that the Commission underestimated the burden to 
companies to respond to the proposed data collection. GMA instead 
anticipated the cost to be $100,000 or more for each company that 
markets a single product category and $1 million or more for each 
company that markets multiple product categories. As indicated in 
Section III below, the Commission has revised its burden estimates from 
those stated in the September 2009 Notice to reflect estimated burden 
hours of 17,550 hours and an estimated total cost of $5,265,000. 
However, for the following reasons, the FTC does not believe the likely 
burden to be as high as GMA's estimate. First, the FTC proposes to send 
the information requests to virtually the same group of companies that 
received the information requests in 2007, and it anticipates that the 
companies' experience in answering the 2007 requests will inform their 
responses to the proposed requests, thus lessening the time needed to 
compile and submit the data to the FTC. Second, the Commission has 
incorporated into the proposed information requests detailed guidance, 
instructions, and templates for companies to use when responding, in 
order to promote clarity and efficiency.

F. Other Requests Contained in Comments

    Children Now requested that the FTC obtain information from 
children's media companies regarding their policies for, and revenues 
from, licensing characters used to promote food and beverage products. 
The FMC Workgoup also requested that the Commission gather information 
from media companies. To be consistent with the FTC's prior information 
collection, the Commission does not intend to expand the scope of the 
proposed recipients to include children's media companies. The 
Commission believes it will be able to glean relevant information about 
media companies' policies and practices on use of licensed characters 
in food marketing via the information on cross-promotions and use of 
licensed characters that will be provided by the food and beverage 
companies.\22\
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    \22\ In a separate inquiry, the FTC staff is analyzing 
information about how media companies license their character 
properties and attendant policies for their use.
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    The FMC Workgroup suggested that the FTC collect information on: 
(1) the extent to which companies gather personally identifiable 
information from children and teens; and (2) the scope of data profiles 
that companies maintain on youth populations. These issues are outside 
the scope of Commission's focus on food marketing to children and 
adolescents.

III. Burden Estimates, Document Retention, and Confidentiality

A. Estimated Hours Burden: 17,550 hours

    The FTC staff's estimate of the hours burden is based on the time 
required to respond to each information request. The Commission intends 
to issue the information requests to 48 parent companies of food and 
beverage and quick service restaurant advertisers. Because these 
companies vary in size, in the number of products they market to 
children and adolescents, and in the extent and variety of their 
marketing and advertising, the FTC staff has provided a range of the 
estimated hours burden.
    Based upon its knowledge of the industries and experience with the 
2007 Orders and input from the GMA, the staff estimates, on average, 
that the time required to gather, organize, format, and produce 
responses to the 6(b) Orders will range between 150-300 hours per 
information request for companies that market a single category of 
product to children and adolescents; thus, an average of 225 hours. 
Similarly, the FTC staff estimates that companies that market multiple 
categories of products to children and adolescents will spend between 
300-900 hours to respond to an information request; thus, an average of 
600 hours. The total estimated burden per company is based on the 
following assumptions:

 Identify, obtain, and organize product information; prepare response: 
25-175 hours

 Identify, obtain, and organize information on marketing expenditures; 
prepare response: 50-250 hours\23\

 Identify, obtain, and organize information on, and samples of, 
marketing activities; prepare response: 25-200 hours

 Identify, obtain, and organize information regarding product nutrition 
information and healthy initiatives; prepare response: 30-200 hours

 Identify, obtain, and organize information regarding market research 
and marketing to youth of a specific gender, race, ethnicity, or income 
level; prepare response: 20-75 hours

 Total: 150-900 hours
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    \23\ For companies that use substantial amounts of unmeasured 
media for advertising and promotional activities, the hours required 
to respond will be greater than for companies that utilize only 
small amounts of unmeasured media.


[[Page 29346]]


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    The Commission intends to send 30 information requests to parent 
companies that market a single category of product to children and 
adolescents. As a result, the staff estimates a total burden for these 
companies of approximately 6,750 hours (30 companies x 225 average 
burden hours per company). The Commission intends to send 18 
information requests to parent companies that market multiple 
categories of products to children and adolescents. As a result, the 
staff estimates a total burden for these companies of approximately 
10,800 hours (18 companies x 600 average burden hours per company). 
Thus, the staff's estimate of the total burden is approximately 17,550 
hours. These estimates include any time spent by separately 
incorporated subsidiaries and other entities affiliated with the parent 
company that has received the information request.

B. Estimated Cost Burden: $5,265,000

    It is difficult to calculate with precision the labor costs 
associated with this data production, as they entail varying 
compensation levels of management and/or support staff among companies 
of different sizes. Financial, legal, marketing, and clerical personnel 
may be involved in the information collection process. The FTC staff 
has assumed that professional personnel and outside legal counsel will 
handle most of the tasks involved in gathering and producing responsive 
information, and has applied an average hourly wage of $300/hour for 
their labor. Thus, the staff estimates that the total labor costs for 
the information requests will be approximately $5,265,000 (($300 x 
6,750 hours for companies that market a single category) + ($300 x 
10,800 hours for companies that market multiple categories)).
    The FTC staff estimates that the capital or other non-labor costs 
associated with the information requests will be minimal. Although the 
information requests may necessitate that industry members maintain the 
requested information provided to the Commission, they should already 
have in place the means to compile and maintain business records.

C. Document Retention and Confidentiality

1. Document Retention
    Potential recipients of the compulsory process orders must retain 
potentially responsive documents and information. Subsequent to this 
notice, any destruction, removal, mutilation, alteration, or 
falsification of documentary evidence that may be responsive to this 
information collection within the possession or control of a person, 
partnership, or corporation subject to the FTC Act may be subject to 
criminal prosecution. 15 U.S.C. 50; see also 18 U.S.C. 1505.
2. Confidentiality
    Section 6(f) of the FTC Act, 15 U.S.C. 46(f), bars the Commission 
from publicly disclosing trade secrets or confidential commercial or 
financial information it receives from persons pursuant to, among other 
methods, special orders authorized by Section 6(b) of the FTC Act. Such 
information also would be exempt from disclosure under the Freedom of 
Information Act. 5 U.S.C. 552(b)(4). Moreover, under Section 21(c) of 
the FTC Act, 15 U.S.C. 57b-2(c), a submitter who designates a 
submission as confidential is entitled to 10 days' advance notice of 
any anticipated public disclosure by the Commission, assuming that the 
Commission has determined that the information does not, in fact, 
constitute Section 6(f) material. Although materials covered under one 
or more of these various sections are protected by stringent 
confidentiality constraints, the FTC Act and the Commission's rules 
authorize disclosure in limited circumstances (e.g., official requests 
by Congress, requests from other agencies for law enforcement purposes, 
and administrative or judicial proceedings). Even in those limited 
contexts, however, the Commission's rules may afford protections to the 
submitter, such as advance notice to seek a protective order in 
litigation. See 15 U.S.C. 57b-2; 16 CFR 4.9-4.11.
    Finally, the information presented in the report will not reveal 
company-specific data, except data that are public. See 15 U.S.C. 57b-
2(d)(1)(B). Rather, the Commission anticipates providing information on 
an anonymous or aggregated basis, in a manner sufficient to protect 
individual companies' confidential information, to provide a factual 
summary of: (1) food industry marketing activities and expenditures 
targeted to children and adolescents; and (2) nutritional information 
about the companies' food and beverage products marketed to children 
and adolescents.

IV. Instructions for Submitting Comments

    Interested parties are invited to submit written comments 
electronically or in paper form. All comments must be received on or 
before June 24, 2010. Comments should refer to the ``Food Industry 
Marketing to Children Report: Paperwork Comment; Project No. P094511'' 
to facilitate the organization of comments. Please note that your 
comment - including your name and your state - will be placed on the 
public record of this proceeding, including on the publicly accessible 
FTC Website, at (http://www.ftc.gov/os/publiccomments.shtm).
    Because comments will be made public, they should not include any 
sensitive personal information, such as an individual's Social Security 
Number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or credit or debit card number. Comments also 
should not include any sensitive health information, such as medical 
records or other individually identifiable health information. In 
addition, comments should not include any ``[t]rade secret or any 
commercial or financial information which is obtained from any person 
and which is privileged or confidential . . . .'' as provided in 
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 
16 CFR 4.10(a)(2). Comments containing material for which confidential 
treatment is requested must be filed in paper form, must be clearly 
labeled ``Confidential,'' and must comply with FTC Rule 4.9(c), 16 CFR 
4.9(c).\24\
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    \24\ The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR 
4.9(c).
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    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comment 
in electronic form. Comments filed in electronic form should be 
submitted by using the following weblink:
    (https://public.commentworks.com/ftc/foodmarketingPRA2) (and 
following the instructions on the web-based form). To ensure that the 
Commission considers an electronic comment, you must file it on the 
web-based form at the (https://public.commentworks.com/ftc/foodmarketingPRA2) weblink. If this Notice appears at (http://www.regulations.gov/search/Regs/home.html#home), you may also file an 
electronic comment through that website. The Commission will consider 
all comments that (http://www.regulations.gov) forwards to it. You may 
also visit the FTC website at (http://www.ftc.gov/) to read the Notice 
and the news release describing it.

[[Page 29347]]

    A comment filed in paper form should include the reference ``Food 
Industry Marketing to Children and Adolescents Study: Paperwork 
Comment; Project No. P094511'' both in the text and on the envelope, 
and should be mailed or delivered to the following address: Federal 
Trade Commission, Office of the Secretary, Room H-135 (Annex J), 600 
Pennsylvania Avenue, N.W., Washington, D.C. 20580. The FTC is 
requesting that any comment filed in paper form be sent by courier or 
overnight service, if possible, because U.S. postal mail in the 
Washington area and at the Commission is subject to delay due to 
heightened security precautions.
    Comments on the proposed reporting requirements, which are subject 
to OMB review under the PRA, should additionally be submitted to: 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, Attention: Desk Officer for Federal Trade Commission. Comments 
should be submitted via facsimile to (202) 395-5167 because U.S. postal 
mail at the OMB is subject to delays due to heightened security 
precautions.
    The FTC Act and other laws the Commission administers permit the 
collection of public comments to consider and use in this proceeding as 
appropriate. The Commission will consider all timely and responsive 
public comments that it receives, whether filed in paper or electronic 
form. Comments received will be available to the public on the FTC 
Website, to the extent practicable, at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of discretion, the FTC makes every 
effort to remove home contact information for individuals from the 
public comments it receives before placing those comments on the FTC 
Website. More information, including routine uses permitted by the 
Privacy Act, may be found in the FTC's privacy policy, at (http://www.ftc.gov/ftc/privacy.shtm).

David C. Shonka,
Acting General Counsel.
[FR Doc. 2010-12511 Filed 5-24-10; 8:45 am]
BILLING CODE 6750-01-S