Self-regulation of junk food advertising to kids doesn’t work. Here’s why.

Recently, Cancer Council NSW published a study finding that food industry self-regulation in Australia has not been effective in reducing children’s exposure to unhealthy food marketing. Australian children still see, on average, three advertisements for unhealthy foods and beverages during each hour of prime time television they watch. This figure remains unchanged despite the Australian food industry introducing two voluntary codes on food marketing to children in 2009.

My research, published recently in the Monash University Law Review, explains why.

I undertook an in-depth analysis of the terms and conditions of the two food industry codes on marketing to children. I also analyzed the processes of administration, monitoring, enforcement and review established by the self-regulatory scheme.

My analysis drew on the code documents themselves, monitoring reports from the food industry, existing independent research, and a sample of advertising complaint determinations from the Advertising Standards Board. I also considered the revisions made to the codes in 2014 (following an independent review of the scheme), and asked whether these revisions make the codes more likely to protect children from exposure to unhealthy food marketing.

My key finding is that the substantive terms and conditions of the codes contain a series of loopholes which leave food companies with a variety of techniques they can use to market unhealthy products to children. These loopholes include:

• A weak definition of “media directed primarily to children” which excludes general audience programs that are popular with children
• A weak definition of “advertising directed to children,” made weaker still by the Advertising Standards Board’s interpretive approach; and
• The exclusion from the codes of key promotional techniques such as company-owned characters (e.g., Ronald McDonald), brand advertising, product line advertising, and product packaging and labelling.

The processes used to administer and enforce the codes also contain a series of flaws, undermining the codes’ efficacy, transparency and accountability. These include:

• A lack of consultation with, or participation by, external stakeholders in the development of the codes, e.g., consumer or child representatives, government, or public health groups;
• A lack of independent, systematic monitoring of the codes; and
• The limited availability of enforcement mechanisms for non-compliance.

These loopholes and limitations help to explain why food industry self-regulation has not been effective in improving children’s food marketing environment. Further, the revisions to the codes made in 2014 appear to have done little to improve the self-regulatory scheme, and are unlikely to lead to lead to reductions in children’s exposure to unhealthy food marketing.

My article sets out a “responsive” or step-wise approach for strengthening regulation of food marketing to children, by closing off the loopholes in the substantive terms and conditions of the codes, and strengthening regulatory processes, including monitoring and enforcement. Most importantly, I argue, regulation of food marketing to children needs strong government leadership and an approach to protecting children from unhealthy food marketing that doesn’t just rely on voluntary food industry action. There are a range of regulatory options available, even if government is unwilling to introduce new statutory controls on food marketing to children.