A few weeks ago, we reported on legislation that could have a significantly negative impact on food and food product advertising in New York. Legislation has been introduced in the Senate (S.213B) by Sen. Zellnor Myrie (Brooklyn) and in the Assembly (A.4424.B) by Assemblywoman Karines Reyes (Bronx) that will raise significant litigation risks for food product advertisers in New York.
Like last year, this legislation was rammed through the New York State Senate. Even more troubling is that it has been included in the NY Senate’s budget proposal. This means the issue is now front and center. Senate and Assembly leadership will negotiate with the Governor's office for a final budget package in early April.
The legislation makes fundamental changes in what would be considered “unfair, false, and deceptive food or food product advertising." While styled as protecting children, the legislation applies to any advertisement directed under 18 years of age. It would prohibit the use of music, actors, animation, age of models, language, visual content, or similar factors. It is not clear how one can differentiate advertising content directed at a 25 or 30-year-old that is also enjoyed by those under 18 years of age. To avoid potential legal jeopardy, all of these elements would have to be removed from all advertising.
The legislation expands the definition of “false and misleading" and applies it to “any advertising concerning food or food product,” not just children’s advertisements. This section creates potential 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.” Thus, rather than focusing on whether an advertiser objectively made false claims, liability would be based on whether a consumer can understand or comprehend the advertisement. It is impossible for any advertiser to know the intellectual and comprehension abilities of everyone hearing or seeing an ad.
By significantly increasing litigation risks, the legislation could essentially ban advertising campaigns such as “Tony the Tiger,” “Ronald McDonald,” “Fruit Loops,” and any other campaign that uses animation, music, or younger influencers. In today's economic environment, the last thing that broadcasters need is to have advertising pulled due to potential legal jeopardy. We are not alone in our concerns.
We have submitted additional legal materials demonstrating that the law violated the First Amendment and is inconsistent with Federal Law. We are working with the Association of American Advertising Federation, the Association of American Advertising Agencies, the American Beverage Association, the Consumer Brands Association, the New York Business Council, the Food Industry Alliance of New York, the National Confectioners Association, and the New York State Restaurant Association.
We are working hard to make sure the legislation is not included in the final budget package. If we can take the bill out of the budget, we will be opposing the legislation for the rest of the session.
You can see the text of the legislation here.
You can see our initial opposition here.
Our additional memo outlining the legal concerns can be found here.
You can see the initial opposition from the ANA here.
A follow-up letter from all the advertising trade associations can be found here.