McDonald’s made national headlines when it announced it had allegedly found a work-around to a San Francisco law designed to curb the predatory practice of using toys to lure kids into a lifetime of fast food. But as I wrote for Grist, I am not convinced McDonald’s convenient trick to charge ten cents instead of give the toy away is actually in compliance.

Regardless, it’s important for child advocates and policymakers around the nation who are interested in pursuing such an ordinance in your own city or county to understand how to improve on the San Francisco language to avoid a similar outcome. What most media outlets left out is that we already have another county (also in California) with a similar law on the books.

In 2010, Santa Clara County actually became the first jurisdiction in the nation to implement an ordinance to restrict how restaurants market toys and other incentives. The language of that law is plain and simple: “A restaurant may not provide an incentive item linked to the purchase of a single food item or meal if it includes any of the following” (the nutrition criteria follows). The key word is “linked,” as this includes both free toys and those sold with meals. In contrast, the San Francisco ordinance used the words “give away a free…”. It appears from the final ordinance that this was a change from the original version, but the reason for the amended language remains unclear.

Additional legal guidance comes from the attorneys at Public Health Law and Policy, who drafted a comprehensive “Model Ordinance for Healthier Toy Giveaway Meals,” which contains the language, “No Restaurant may provide, for free or a nominal price… .” This would also take care of McDonald’s trick, as ten cents is certainly a “nominal price.”

We know the language avoided clever workarounds in Santa Clara County. A study out Dec. 7 from Stanford School of Medicine tracked how fast food companies there are responding to the new law. While the sample size was small and the time frame short, researchers found some positive change changes in marketing practices: “two of the four affected restaurants removed toy marketing posters, and two offered toys separately at an additional cost.” However, the study found no restaurants added healthier options to the their menus. It’s too soon to draw any major conclusions from this research. Also, because no McDonald’s outlet exists in the unincorporated areas of Santa Clara County, the jurisdictional area affected by the law, we don’t know how Happy Meals might have changed.

Still, other cities and counties interested in pursuing this policy can follow these simple language improvements. And as I always recommend when dealing with the likes of McDonald’s, get yourself a good lawyer.

Postscript: This just in, a post by Cara Wilking of the Public Health Advocacy Institute also questioning if McDonald’s is truly in compliance with the San Francisco law, as the toys actually cost more than ten cents.



Michele Simon is a public health lawyer specializing in industry marketing and lobbying tactics. She is the author of Appetite for Profit: How the Food Industry Undermines Our Health and How to Fight Back. A version of this post appeared on her website Dec. 8, 2011