Legislation has been introduced in the NY Legislature that could effectively eliminate most food product advertising throughout the Empire State. The legislation, introduced by the New York State Senate (S.397) by Senator Zellnor Myrie (D 20th) and in the New York State Assembly (A.2584) by Assemblywoman Karines Reyes (D 87th), fundamentally alters the law regarding unfair and deceptive food advertising directed towards children.
The legislation is billed as protecting children. However, while the Federal Communications Commission and the Federal Trade Commission define children as 12 years of age and under, the proposed legislation defines a child as anyone under 18. Because most advertising aimed at adults may also be attractive to late teens (16–18-year-olds), the scope of the legislation could effectively encompass all food product advertising. Indeed, the legislation defines a "consumer" as a person who is targeted by an advertisement or acting on such a person’s behalf. The scope of the legislation is not confined to children’s advertising.
The legislation expands the definition of what is false and misleading and applies it to "any advertisement concerning food or food product." This section creates liability if the advertisement targets a consumer who is "reasonably unable to protect their interests because of their age, physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factor." This new standard applies to all food advertisements, not just those directed at children. Indeed, the new §350(4)(b) defines a "consumer" as a person who is targeted by an advertisement or acting on such person's behalf. The scope of the legislation is not confined to children’s advertising.
The legislation marks a fundamental change in the legal standard applied to false and deceptive advertising. Rather than focusing on whether an advertiser objectively makes false claims, the legislation supplants this objective standard with one based on a consumer’s cognitive and intellectual abilities. Liability is attached if a consumer does not understand the ad because of their age, illiteracy, or inability to understand the language used by the advertisement. In other words, to avoid a lawsuit, an advertiser must anticipate the cognitive abilities of everyone in the audience. Radio and television stations broadcast advertisements to the general public. It is simply impossible for any advertiser or broadcaster to know the abilities of everyone hearing or seeing an advertisement to comprehend a message.
From a content perspective, it is exceedingly difficult to discern the difference in content that would attract a 25-year-old adult as opposed to consumers aged 16 to 18. This absurdity of the definition comes into focus when looking at the factors that the legislation uses to determine if an advertisement is directed at “children.” The legislation would look at elements such as subject matter, visual content, use of bright colors, animated characters, child-oriented activities, music or other audio content, and child celebrities. These elements encompass the entire world of entertainment and advertising. Because the definition of “child” applies to an 18-year-old, does this mean advertisers cannot use celebrities that may be liked by that age group? Musicians such as Taylor Swift and athletes such as Patrick Mahomes could not be used in commercials because they may appeal to a 17-year-old consumer. As for music, genres such as country, pop, hip-hop, and rock could not be used because of the appeal to children under 18. Apparently, this would eliminate Tony the Tiger, M&Ms, Ronald McDonald, the Green Giant, Pillsbury Dough Boy, Mr. Peanut, Little Ceasar's Pizza, and countless other animated characters. Finally, what types of "visual content" would trigger liability? Also, advertisements may have to be broadcast in black and white because we cannot use bright colors.
We strongly oppose these bills. They would have a devastating impact on New York Broadcasters, restaurants, food product companies, agriculture, and any business that advertises food. Because the New York City market is the largest market in the country, the legislation could have national implications.
The legislation passed the New York State Senate last year but was blocked in the New York Assembly. This year, S.397 has already passed the Senate agricultural committee. NYSBA has been working with other organizations and advertisers to oppose the legislation.
You can see a copy of S.397 here.
You can see a copy of A.2584 here.
You can see a copy of NYSBA's memo opposing the legislation here.