Can the Candy Industry Regulate Its Own Advertising?

One big reason for that is the agreement by most of the big candy makers—and, as of last week, several small and mid-sized ones—to refrain from running advertisements targeted toward children. Six companies signed on to the new Children’s Confection Advertising Initiative, a pledge to refrain from advertising to children under 12.

The question is, does it make much of a difference in terms of how many candy ads kids see? Critics say probably not. Candy makers aren’t adhering to the spirit of the agreement, the critics say, even if they are adhering to its letter.

The CCAI is modeled on the Children’s Food and Beverage Advertising Initiative, which the largest candy makers, along with other big food companies including Pepsico, McDonald’s, and Coca-Cola, began joining in 2007. Both the CCAI and the CFBAI are administered by the Council of Better Business Bureaus, which describes them collectively as a “voluntary self-regulation program” that is “designed to shift the mix of foods advertised to children under 12 to encourage healthier dietary choices and healthy lifestyles.”

The CCAI is designed for smaller companies that make candy. The bigger candy companies—including Hershey, Mars, Nestlé, and Mondelez—are already part of the CFBAI, where the fees are higher because of the cost of monitoring compliance, according to Maureen Enright, the deputy director of the program for the BBB. The CCAI’s first six candy makers are: Ferrara Candy Company (which makes Lemonheads and Jujyfruits), Ghirardelli Chocolate Company, Jelly Belly Candy Company, Just Born Quality Confections (which makes Mike & Ike), The Promotion in Motion Companies, and the R.M. Palmer Company.

The idea that “self regulation” is sufficient to keep these companies from advertising to children has come under heavy fire. In September, the journal Appetite published the results of a study concluding that far more children are exposed to ads for candy than were before this initiative was launched. Analysis showed that “children viewed 65% more candy ads on U.S. television in 2011 than in 2007, before CFBAI implementation,” according to the study’s authors, who work for the Rudd Center for Food Policy & Obesity at University of Connecticut.

The authors contended that the candy companies are able to comply with the letter of the agreement—and thus boast that they are responsible advertisers—while repeatedly violating the spirit of it. For instance, the researchers said, while candy makers no longer advertise on TV networks or shows that are aimed narrowly at children, they have shifted their advertising to venues that nonetheless attract large numbers of viewers under 12. The authors concluded that “31% of ads viewed by children for CFBAI non-approved brands appeared on networks with higher-than-average youth audience,” including Nick at Nite, ABC Family, and Adult Swim.

In a statement after the Rudd study was released, the BBB’s director of the CFBAI program, Elaine Kolish said: “Our six candy company participants voluntarily have pledged to not advertise their confections directly to children in child-directed media, such as Nickelodeon and Cartoon Network.” She the study characterized programming as aimed at children based on “subjective” variables, such as whether shows were “fun,” “hip,” or animated.

The BBB continues to stand by those statements, the program’s assistant director, Maureen Enright, told Fortune this week. She said that while the BBB has advised a few companies to make minor adjustments to their marketing to remain in compliance, there have been “no egregious problems.” If a company runs afoul if the agreement, she said, there are various methods of censure, and ultimately, “they could be expelled from the program.”

Noting the new initiative for smaller companies, Bettina Elias Siegel wrote on her blog The Lunch Tray that the agreements “sound good on paper,” but “industry self-regulation of children’s food and beverage advertising has had a mixed track record, to say the least.” Seigel is an attorney who has devoted herself in recent years to warning about the food industry’s efforts to market to children, particularly in schools.

There is one big difference between the larger program aimed at all junk foods and this new one that is narrowly focused on candy: Unlike pizza, greasy burgers and sugary soft drinks, candy is usually a treat as opposed to something that’s incorporated into the daily diet. “Candy is a problem, but it’s not the biggest problem,” said Michele Simon, a public-health lawyer and author who recently launched a trade group to lobby on behalf of companies that make plant-based substitutes for meat and dairy products. “I’m much more concerned about fast-food marketing and soda marketing.”

With these six companies joining the CCAI, together with the big candy makers that are part of the CFBAI, a huge portion of the candy industry has now pledged to refrain from marketing to children, especially among those companies that advertise at all. Many of the companies that haven’t joined are either tiny or don’t aim their products at children. Two relatively large companies that have marketed to kids in the past are conspicuously absent so far: Bazooka Candy Brands (maker of Bazooka Joe gum and other products, which is owned by The Topps Company) and Tootsie Roll Industries.

A spokesperson for Bazooka said the company complies with the BBB’s Children’s Advertising Review Unit, another “self-regulation” initiative launched in 1974. A more vague set of guidelines, CARU requires that advertisers behave “responsibly,” and is focused on commercial messages themselves rather than whether they run on kids’ programs or TV networks aimed at children. “Bazooka Candy Brands believes that their strict adherence to the high standards of CARU, which is also part of the Better Business Bureau, achieves the goal of responsible marketing,” the spokesperson said in response to a question about why the company hasn’t joined CCAI.

A Tootsie Roll spokesperson responded this way to a similar query: “Tootsie Roll is committed to doing the right thing. The new Children’s Confection Advertising Initiative calls for participating companies not to advertise directly to children under age 12. Tootsie Roll already had this policy in place, so we saw signing the pledge as redundant.”

The National Confectioners Association said all of its members—about 700 companies, many of them tiny—were invited to join, and more might sign on in the future. Said Christopher Gindlesperger the NCA’s vice president of public affairs: “This is a first step for us.”