Food products, on the other hand, do come under FDA authority and are clearly regulated in terms of certain aspects of health and safety, including nutritional labeling and health claims. However, the FDA does not currently regulate the nutritional content of food products, portion size, or marketing strategies. Currently, if a food product were to make an unjustified health claim, the FDA could act. Similarly, if the advertising were deemed to be false, misleading, or deceptive, the FTC could take action. However, concerns about food product marketing are not focused primarily on health claims or deception, but rather focus on making calorie-dense and low-nutritional-quality food particularly attractive to children. So, it is unlikely that traditional FDA or FTC authority would help in the area of greatest concern regarding marketing unhealthful food products to children.
If governmental regulation is not likely or possible, mandatory industry standards could be considered to guide minimum nutrient content, portion size, and marketing of products targeted to children. In addition to federal regulation, local authorities also have the ability to regulate food products, particularly in the areas of licensing, sampling, zoning restrictions, land use (Ashe et al., 2003), and conditional use permits (Bolen and Kline, 2003). Local restrictions on advertising may be more difficult with regards to First Amendment considerations and free speech. Local efforts to regulate tobacco ads have often been stymied because of federal preemptive legislation. The same pre-emption of local authority may not exist for local control over food marketing.
In addition to laws and regulation, litigation has recently become a powerful tool in preventing product-related injuries and ensuring the public health in areas such as tobacco, gun violence, and lead paint. In a recent review, Vernick and colleagues (2003) conclude that although litigation is not a perfect tool, it is an important one, and one that has made some products safer. Parmet and Daynard (2000) reach similar conclusions and agree that litigation can deter dangerous activities and contribute to the public health. However, both reviews agree that there is a dearth of empirical evidence on the actual impact of litigation, but litigation appears to have a modest and important role in protecting the public’s health. Others argue that product liability litigation has unacceptable social costs and may diminish the role of personal responsibility. Everyone agrees, however, that litigation has played an extremely important role in tobacco control (Jacobson and Warner, 1999), and many see that experience as a model for preventing obesity (Mello et al., 2003).