Laws in many countries prohibit false and misleading advertising. The recent case of ACCC v Heinz (which I discussed in a blog post last week) shows how these laws can knock out false and misleading food advertisements. But what about the perfectly legal promotions for unhealthy foods and beverages that fill our TV screens, social media platforms, billboards, and bus shelters?
In some countries, governments are moving to reduce children’s exposure to unhealthy food marketing by placing legislative restrictions on when and where unhealthy food products can be marketed. For example, Chile has banned unhealthy food advertisements on TV before 10pm, along with a range of other obesity-prevention measures.
In countries like the US, Australia, and NZ, restrictions on unhealthy food marketing are found in self-regulatory codes developed by the food or advertising industries. However, these codes often contain significant loopholes and do little to reduce children’s exposure to unhealthy food marketing. This is illustrated by two complaints recently determined by New Zealand’s Advertising Standards Complaints Board.
The Complaints Board hears public complaints about breaches of the Children and Young People’s Advertising Code, developed by an advertising industry body. Following a recent review, the Code now contains a series of principles and rules on the marketing of “occasional food and beverage products” to children and young people. These products are identified using a Ministry of Health nutrient profiling system that distinguishes between “everyday”, “sometimes”, and “occasional” foods. The Code also distinguishes between children (aged under 14 years) and young people (aged 14-17 years).
Principle 1 of the Code states that “[a]dvertisements targeted at children or young people must not contain anything that is likely to result in their physical, mental or moral harm and must observe a high standard of social responsibility.” Among the rules listed under this principle are (1)(i), which states that “[a]dvertisements (including sponsorship advertisements) for occasional food or beverage products must not target children or be placed in any media where children are likely to be a significant proportion of the expected average audience.”
Under rule 1(j) advertisers must exercise a special duty of care in advertising occasional food and beverage products to young people (as opposed to children).
The Code uses three criteria to determine whether an ad targets children or young people: (1) whether the nature and intended purpose of the advertised product or service is principally or generally appealing to children/young people; (2) whether the presentation of the advertisement content (e.g., theme, images, colours, wording) is appealing to children/young people; and (3) whether the expected average audience at the time or place the advertisement appears includes a significant proportion of children/young people. Measures for determining the likely child audience of an advertisement include whether a medium’s audience comprises 25% or more children; whether the medium appears in child viewing time zones; whether a medium contains content with significant appeal to children; and whether an ad appears in locations where children gather, e.g., schools and playgrounds.
Principle 3 of the Code states that “[a] special duty of care must be exercised for Occasional Food and Beverage Product sponsorship advertising targeted to young people.” The rules under this principle include 3(a), which prevents sponsorship advertising from depicting an occasional food or beverage product, such product’s packaging, or consumption of such products.
Healthy Together Auckland has laid a series of complaints that aim to test the Code’s rules on unhealthy food marketing.
One recent complaint concerned an advertisement on a bus shelter in close proximity to a primary school and a secondary school, and to shops where a large number of children and young people stopped on their way to and from school. The advertisement (pictured above) featured Santa Clause riding in a car holding two bottles of Coke, one a no-sugar version of the product, and the other a “classic” or “full sugar” version. It included the logos for Youthline (a help line for young people) and Coca-Cola, and text encouraging donations to Youthline.
The Board upheld the complaint that the ad was a sponsorship advertisement for an occasional beverage that targeted children and young people.
In considering whether the ad targeted children and young people, the Board held that full-sugar Coke was a product that appealed to children and young people and was an occasional beverage. In relation to the content of the ad, the Board said that Youthline would not have strong appeal to children, but would with young people – Youthline’s target audience. Crucially, Santa Claus was the most prominent image in the ad, and has strong appeal with children and is closely associated with Christmas, and children asking Santa for presents, all of which would encourage children to engage with the ad. According to the Board, while Santa has less appeal for young people, his particular presentation in this ad (e.g., riding in a car) would appeal to the 14-17 year age group.
The Board held that children under the age of 14 years were unlikely to be a significant proportion of the ad’s audience (given the bus shelter’s distance from the primary school), but it would be seen by a significant proportion of young people, as it was close to the secondary school, and young people caught the bus from the stop that the ad appeared at and would gather at near-by shops.
Accordingly, the Board held that the ad breached Principle 1 and rule 1(i) of the Code by promoting an occasional beverage to children, as well as Principle 3 and rule 3(a), but note rule 1(j) (on exercising special care in unhealthy food marketing to young people) or another rule on the responsible use of characters that are popular with children (1(h)).
While this first complaint was upheld in part, a second complaint, related to Coca-Cola Christmas in the Park events held in Auckland and Christchurch, was dismissed by the Board.
The complaint concerned the events themselves, as well as event promotions that appeared on bus shelters, in newspapers and on news websites, and included fireworks, people dancing on a stage, and the messaging, “Coca-Cola Christmas in the Park. Supporting Youthline. Merry Christmas from Coca-Cola. Come share the magic.” The complainant was also concerned that hundreds of free Coke drinks were given away to children at the events, who made up a large percentage of the audience.
The Board held that it did not have the jurisdiction to consider the event itself or the product give-aways at the event. This was because the events did not constitute “advertising” for the purposes of the Code: they were a “community initiative”, of which Coke was one of many sponsors, and the event’s intended purpose was entertainment rather than influencing the choice, opinion or behaviour of consumers to purchase the product, as required by the Code’s definition of advertising.
Promotions for the events could be defined as sponsorship advertisements, meaning that they fell within the scope of the Code. However, there were no images of Coke products in the advertisement, and while the ad did include the Coke logo, the focus of the ad was on promoting the events rather than persuading views to purchase Coke. Accordingly, the ads did not promote an occasional food or beverage.
The creative content of the ads would have appeal to children and young people, as would Christmas in the Park, Youthline and the Coca-Cola Company Brand. However, the Board held that the placement of the ads was directed to parents, as children would not comprise 25% of more of the readers or viewers of the media that the ads appeared in (e.g., the New Zealand Herald), and on balance, it was unlikely that the ads would be seen by a significant proportion of children.
As the ads did not promote an occasional food or beverage product and were not targeted to children, the Board determined that the ads did not breach any of the Code’s principles and rules on food marketing to children and young people.
The New Zealand Code contains rules that are stronger in some respects than similar rules found in codes in other jurisdictions, including the two codes developed by the food industry in Australia. For example, the New Zealand Code restricts unhealthy food marketing in settings where children gather (including around shops or bus shelters, as illustrated by the first complaint). Equivalent restrictions in the Australian codes only apply to pre-schools, primary schools and daycare centres. However, these complaints illustrate that the New Zealand Code still contains a number of key loopholes that are common to regulation on food marketing to children in other jurisdictions.
The first of these is the need to identify advertising that is targeted to or appeals to children, as distinct from families or parents. While the Code contain a relatively strong definition of advertising that is targeted to children, it can still allows advertisers to use creative content that children find appealing. Coke asserts that it doesn’t market its products to children under 12, and claims that the association of Coke with Christmas and Santa is aimed at families rather than children. This ignores the fact that, as the Complaints Board has pointed out, Santa and Christmas have significant appeal to children, and marketing using this imagery is likely to be attractive and persuasive to children, regardless of the target audience. However, in the second complaint the Board held that Coke’s ads were not targeted to children as they appeared in media with large adult or family audiences, despite using imagery that appealed to children. In short, Coke respects the letter but ignores the spirit of its own self-imposed restriction – and in this instance, the Code permitted it to do so.
The second problem is that the NZ code (and other self-regulatory codes) continue to exclude some marketing techniques commonly used by food companies. As illustrated by the second complaint, these include brand advertising, where companies promote a particular brand, but not the products associated with that brand, which may be unhealthy. By imposing restrictions on the types of products advertised to children, the Code allows companies like Coke to circumvent restrictions by marketing only the Coca-Cola brand without featuring images of the product itself.
A third problem is that these codes are based on a single advertisement model. The Board may uphold a complaint about one advertisement, but its determination doesn’t necessarily address a sophisticated, widespread campaign that promotes a product across a number of different platforms. Further, a complaints-based system only puts a tiny dent in children and young people’s cumulative, on-going exposure to a large volume of unhealthy food marketing.
This last issue is partly due to deficiencies in the governance processes attached to self-regulatory codes, in addition to loopholes in their substantive terms and conditions. Frequently, there are no sanctions for non-compliance, nor is there any kind of systematic, independent monitoring of compliance, meaning that it’s up to advocacy groups to identify problematic ads and report them to complaint bodies.
We have legislative restrictions on false and misleading food advertising. Given the problems with self-regulatory codes on unhealthy food marketing to children, perhaps it’s time for legislation on that issue too.
Sydney Health Law 
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