San Francisco Supervisor Eric Mar recently proposed a ban on toys and incentives in kids’ meals in his district, sparking hot debate within the quick-service industry over the best way to fight the spread of childhood obesity. This comes on the heels of a similar regulation this spring in Santa Clara, California. 

Bob Cutler, CEO of Creative Consumer Concepts (C3), one of the largest, kid-smart brand-marketing agencies for the restaurant industry, is “outraged” by what he sees as a limitation of his First Amendment rights as a marketer. QSR sat down with Cutler to find out what exactly his company is doing to counter the ban and why he says the issue is more about basic rights than business. 

Where are these types of kids’ meal criticisms coming from?

The root advocacy is coming from a group called the NPLAN, which is a nonprofit organization that stands for the National Policy and Legal Analysis Network to Prevent Childhood Obesity. 

They’re an organization that provides legal information on matters relating to childhood obesity. They’re really the organization behind the curtain in these communities that are saying that these ordinances are in the best interest of consumers.

Why has there been a recent increase in these types of kids’ meal criticisms?

They have been pursuing this for some time, but they’ve just started seeing politicians who want to take advantage of this issue for promoting their political agendas and their political careers.

Many people reading this will likely think you are only fighting this because your business could lose money if this ban was passed. Is that true?

We’re a law-abiding company that has been providing services to restaurants for 23 years. It’s really more of the potential liability that surrounds the issue of moving the First Amendment out of its interpretation by courts and putting that interpretation into the hands of the Federal Trade Commission. Then the FTC would be able to establish the First Amendment rights of marketers. Quite candidly, the concern has transitioned from a business one to one more of advocacy—our Constitutional First Amendment rights. 

Initially you can say there’s a business basis for our concerns, and that’s true. But our customers are going to sell kids’ meals in one iteration or the other. They’re going to have to change what those meals are, and we’re going to be a part of that. But, from my perspective, this group is working to have our first amendment rights managed and approved by a government agency. And the threat of that is so beyond belief, I just can’t sit here as a citizen and a business owner and go down without speaking out against it. 

Why do you think this potential ban is worse than other efforts to slow obesity?

First Lady Michelle Obama just came out with a very comprehensive review on the obesity issue, and marketing was not an issue she brought up. There were many other ways to address obesity, but this tactic isn’t one of them. This is a chipping away at First Amendment rights. 

If the restaurant industry allows the government to start legislating what is permissible advertising under the First Amendment, what you’re going to see is the elimination of the ability to advertise a combo meal that offers a price incentive. It will be made illegal unless it meets a caloric requirement determined by a bureaucrat. Or there will be bans of marketing high-caloric food in low socioeconomic areas. 

The idea that the restaurant industry is not alarmed and garnering all its resources against this is somewhat disappointing. I’m somewhat shocked to be the lone voice out there. 

What specifically are you and your company, C3, doing to fight these potential bans?

We just sent out table tents to every restaurant in San Francisco in the district of Eric Mar. We sent them out with a letter, calling out his initiative and giving his phone number and e-mail address, telling people to put the table tents up and let their consumers speak out against this. 

We’re getting ready to release a television commercial that we’ll begin running on cable networks next week, calling out Eric Mar on this issue and explaining that it’s an elimination of choice and parental rights. Our next step is to probably arrange some sort of protest with signs and people at the supervisor’s meeting. We have more things that we believe can be done, but we’re waiting to pursue those with the right audience.

Beyond the table tents, what can franchisees and operators in that area do to combat this?

If I had the opportunity to speak with the CEOs of major restaurant chains and also their individual operators, I would ask that they call all of their advertising agencies. They then need to tell all of the companies they advertise with that there will be no advertising of any restaurants, for any products, in their communities if they’re going to take an anti-marketing approach. 

That means billboards, TV, radio, newspapers. Put it on companies like USA Today to figure out how to not run any restaurant advertising in the copies that fall within the San Francisco boundaries. Economic measures are the only way to truly counter a political initiative like this. 

Are there measures other operators and franchisees outside of San Francisco can take to ensure these types of regulations don’t eventually affect them?

Many restaurant operators are very active in their communities, especially through nonprofits. They’re also very supportive of local politicians. I would hope that they would use those relationships to let people know that the events in California are something that they would not support. 

California, especially San Francisco, is often on the bleeding edge of these types of efforts. Is this something that could spread to the rest of the country, or is it going to stay just in California communities?

I think it’s a little bit of both. I don’t see a high probability of a national ban taking effect because it so violates your first amendment rights as a marketer and so overtly tries to eliminate the first amendment rights via the battle cry of, “Who’s against childhood obesity?” No one is against the cause of eliminating obesity. But this is such a polarizing and overt way to guilt someone into losing their rights, I just don’t think it’s going to fly in today’s environment. I think the public and business owners are smart to that tactic.