I’m Not Lovin’ It: Re-Thinking Fast Food Advertising

In 1971, the Federal Trade Commission (“FTC”) and the Food and Drug Administration (“FDA”) agreed to prevent injury and deception to the consumer in advertising, detailing their respective roles in a Memorandum of Understanding (“MOU”). The MOU has been amended and an addendum added since 1971, but the material provisions have remained consistent for over a half-century. The FTC has regulatory authority over fast food advertising while the FDA regulates fast food, which creates a proverbial fork in the road. The fork in the road widens when considering the FDA has an active role in curbing the obesity epidemic through consumer education while the FTC is not concerned with public health, but rather focuses on consumer deception and misinformation.

Therefore, to curb the obesity epidemic and educate the American public, the MOU between the FTC and FDA should be amended so the FDA gains primary responsibility over fast food advertising. This paper also proposes solutions to fast food advertisements, aimed at better educating and reminding the consumer of the negative consequences associated with fast food. Part I of this paper will discuss the scope and regulation of the FTC, previous enforcement proceedings against fast food advertisements, and current litigation relating to fast food advertising. Part II will then discuss potential regulations the FDA could enforce if the agency assumed regulatory authority over fast food advertising.

Part III will be broken down into three sections detailing solutions: disclosing negative health reminders during advertisements, prohibiting advertisements of unrealistic products, and disincentivizing fast food advertisements in general.