Santa, Coke and Christmas: Why we need legislative restrictions on unhealthy food marketing to children

coke bus shelter

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.

 

ACCC v Heinz: A significant win for public health

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In a significant victory for public health, Australia’s Federal Court has held that Heinz engaged in misleading and deceptive conduct in the marketing of a snack food targeted to toddlers (ACCC v Heinz [2018] FCA 360). The case should be seen as a win for public health not just because of the final outcome, but also because of the Court’s discussion of the World Health Organisation guidelines on sugar consumption, as well as parents’ purchasing habits and children’s health.

The case followed a complaint laid by the Obesity Policy Coalition in 2015 about the marketing of a product called “Shredz” which formed part of Heinz’s “Little Kids” range, targeted to children aged 1-3 years. This product consisted of a chewy fruit-flavoured “stick” that was sold in an 18g packet of five sticks. Each box contained five 18g packets of the product, which came in three flavours: berry, peach, and fruit and chia.

The packaging for each of the three flavours varied slightly, but each featured a stylized representation of a tree on the front of the box, with an image of a smiling boy climbing the ladder (see picture above). At the base of the tree was a photograph of various pieces of fruit, sweetcorn kernels, and pieces of pumpkin, along with a prominent depiction of four sticks of the product. Among the text on the front of the box were the words “99% fruit and veg”, “No preservatives” and “No artificial colours or flavours.” The back of the box included the text “Made with 99% fruit and vegetable juice and purees…. Our range of snacks and meals encourages your toddler to independently discover the delicious taste of nutritious food. With our dedicated nutritionists who are also mums, we aim to inspire a love of nutritious food that lasts a life time.” A side panel on the box stated that “Our wide range of snacks and meals is packed with the tasty goodness of vegetables, fruits, grains, meat and pasta to provide nutritious options for your toddler.”

The back of the box also featured an ingredients list and a nutrition information panel required by the Australia New Zealand Food Standards Code. The ingredients list revealed that the product contained 36% apple paste and 31% apple juice concentrate, with the remainder of the product comprising berry, peach, or strawberry puree (approximately 10%), sweetcorn puree (10%) ,and pumpkin puree (10%) (with the fruit and chia version also containing chia seeds). Due to the reliance on apple paste and apple juice concentrate, over two-thirds of the product consisted of sugar.

Before Justice White in the Federal Court, the Australian Competition and Consumer Commission (ACCC) alleged that the packaging of each product contravened ss 18, 29(1)(a), 29(1)(g) and 33 of the Australian Consumer Law, which is contained in a schedule to the Competition and Consumer Act 2010 (Cth).

Section 18 was the key provision in the case. It provides that “[a] person must not, in trade or commerce, engage in conduct that is misleading or deceptive, or is likely to mislead or deceive.” Section 29 provides that “[a] person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services (a) make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or… (g) make a false or misleading representation that goods or services has sponsorship, approval, performance characteristics, accessories, uses or benefits…”

Section 33 provides that “[a] person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, manufacturing process, the characteristics, the suitability for their purpose or the quantity of any goods.”

The ACCC alleged that Heinz had breached these provisions because statements and images on the box impliedly conveyed representations to the effect that the product:

  • Was of an equivalent nutritional value to the natural fruit and vegetables depicted on the packaging;
  • Was a nutritious food and was beneficial to the health of children aged 1-3 years; and
  • Encouraged the development of healthy eating habits for children aged 1-3 years.

At the outset, Justice White commented that the issue for the Court to determine was whether (a) the specific representations alleged by the ACCC were made, and if so, (b) whether they were misleading and deceptive (or in the case of s 33, liable to mislead). The Court was not required to determine other issues raised during the hearing, including whether the product had an inappropriate amount of sugar per se, and whether it would be sensible for parents to give the product to their children as an alternative to fruit and vegetables. The focus of the Court was on whether the product packaging made specific representations alleged by the ACCC, and if so, whether those representations were false and misleading.

Focusing on the berry version of the product, Justice White found that representations (a) and (c) above could not be established. However, Justice White held that the packaging would convey to the ordinary and reasonable consumer – here the ordinary and reasonable parent of a toddler – that the product was nutritious and beneficial to the health of toddlers (representation (b)).

For the purposes of the case, the ACCC had obtained internal documents from Heinz, which enabled scrutiny of the processes used to manufacture the product, and the way in which it was marketed. One of these documents discussed a “brand refresh,” which indicated that Heinz intended to use the product packaging to promote Shredz as nutritious and healthy.

However, Justice White held that “[e]ven a cursory examination of the packaging indicates that Heinz was promoting the Berries Product as being healthy and nutritious and that ordinary reasonable consumers would have understood that that was so.” [99] Imagery on the packaging, including depictions of a healthy young boy climbing a tree, combined with statements that the product comprised 99% fruit and vegetables, gave the impression of nutritiousness and health. The ingredient list and nutrition information panel (which indicated that Shredz comprised 60% sugar) would not detract from this overall impression, as they were on the back of the box, in smaller print, and could be regarded as “fine print.” Particularly in the context of a busy supermarket trip, ordinary, reasonable parents were likely to pass over them, “and to respond to the dominant message conveyed by the more prominent words and imagery.” [101]

Having established that the product packaging conveyed a representation that the product was a nutritious food and beneficial for the health of toddlers, Justice White then considered whether this representation was false and misleading. In determining this issue, Justice White made extensive reference to expert witness evidence led by the ACCC and Heinz. Central to the ACCC’s case was the evidence led by Dr Rosemary Stanton, a prominent Australian nutritionist. One of Heinz’s witnesses included a consultant nutritionist who had a “continuing association” with the Australian sugar industry, which was not disclosed in his written report, raising concerns about his independence.

In establishing that representation (b) was misleading and deceptive, the ACCC placed particular reliance on the fact that the product was high in sugar. Justice White held that while the ACCC could not establish that the product was not nutritious (given that it contained some nutrients necessary for human life), the high levels of sugar in the product were not beneficial to the health of toddlers. In coming to this conclusion, Justice White referred to the World Health Organisation’s 2015 guideline for sugar intake for adults and children, which recommends that intake of free sugars be reduced to less than 10% of total energy intake, (or conditionally, to less than 5% of total energy intake), in order to maintain a healthy weight and good dental health. “Free sugars” are defined to include those present in fruit juices and concentrates.

Evidence from Dr Stanton showed that one 18g serve of the product was 19% higher in sugar than one 100g serve of fruit and vegetables. Further, a single 18g serve of Shredz contained just under three teaspoons of free sugars, more than one half of the recommended daily intake of free sugars for 1-2 year olds, and over 35% for three year olds. Justice White also referred to statistics on sugar intake in Australia, including that 2-3 year olds have an average daily intake of free sugars of 9-10 teaspoons, well in excess of the WHO guidelines, and that the majority of free sugars are consumed from energy-dense, nutrient-poor “discretionary” foods and beverages.

Of particular influence on the judge’s decision was evidence of the role of free sugars in promoting tooth decay, given by an “impressive witness” with expertise in child oral health. Dental caries is prevalent among Australian children (with 48% of five year olds having tooth decay that requires treatment such as fillings), and poor diet  (particularly foods and beverages high in sugar) is a key contributing factor to dental decay. Justice White accepted evidence that consumption of the product would increase children’s risk of developing dental caries, due to its stickiness and high sugar content.

Justice White also accepted the ACCC’s submission that an assessment of the dental and other health risks posed by the product needed to take account of other aspects of a toddler’s diet (including that toddlers are likely to consume free sugars from other sources), rather than considering the dietary impact of the product in isolation, as argued by Heinz. This position illustrates the limitations of the food industry’s argument that there are no “bad” foods. When viewed in isolation, it could be argued that a product that contributes half of a child’s recommended sugar intake is not detrimental to health. But this argument is much less persuasive when we consider what a toddler is likely to eat over an entire day – even a child with a relatively healthy diet.

Given the high level of sugar contained in a single serve of Shredz, and taking into account the totality of children’s diets (and likely free sugar consumption from other sources), Justice White concluded that it was “not easy to accept that consumption of that amount of sugar in a single snack can be regarded as beneficial to the health of 1-3 year olds.’ This was particularly so given that excess weight and obesity are a significant problem among Australian children (with more than a quarter of Australian being overweight or obese), and having regard to the role of sugars in the development of dental caries, as well significant problems in achieving good hygiene practices among Australian young children. As the high levels of sugar in the product were not beneficial to the health of toddlers, Justice White concluded that the second representation was misleading and deceptive or was likely to mislead and deceive.

Accordingly, the packaging of the berry version of the product contravened s 18(1) of the Australian Consumer Law. Justice White also reached the same conclusion in relation to the packaging of the peach and fruit and chia versions of the product. The ACCC was not able to establish a contravention of s 29(1)(a) or s 33 of the ACC, but in showing that Heinz had made a misleading and deceptive statement about the healthiness of the product, Justice White held that it had also made a misleading or deceptive statement about the “benefits” of the product for the purpose of s 29(1)(g). Although not required for the purposes of establishing a breach of the relevant provisions, the ACCC also managed to establish that Heinz knew or ought to have known that it had made a representation that the productions were nutritious and beneficial to the health of toddlers, and that this representation was false or misleading.

The outcome of ACCC v Heinz is a clear victory for public health advocates who are concerned about the way in which unhealthy food products are marketed to children and their parents. The case illustrates the valuable role that World Health Organisation guidelines can play in the courts’ consideration of public health issues, in addition to evidence of the growing problems of obesity and poor dental health among Australian children. The case also demonstrates the natural affinities between childhood obesity prevention and improving children’s dental health, which could perhaps be exploited more fully by child health advocates.

However, the case does not address one of the key concerns about the marketing of unhealthy foods and beverages, which is the cumulative impact on children and parents of exposure to a large volume of perfectly legal and truthful food marketing campaigns, appearing in many times, forms, and places. While Australia has stringent restrictions on misleading and deceptive marketing, there is little regulation of the large volume of (truthful) marketing for unhealthy foods, exposure to which makes a small but significant contribution to childhood weight gain.

This problem, and potential solutions, will be discussed in my next blogpost.

Upcoming events: The Food Governance Showcase

Food-Governance-Hand-berries

On Friday the 3rd of November, Sydney Health Law is co-hosting the Food Governance Showcase at the University of Sydney’s Charles Perkins Centre.

The Showcase will present new research from University of Sydney researchers and affiliates, examining the role of law, regulation and policy in creating a healthy, equitable, and sustainable food system. The Showcase will feature presentations on a wide variety of topics, including food safety law in China, Australia’s Health Star Rating System, and taxes on unhealthy foods and micronutrients.

The Showcase will open with a panel event featuring three legal experts, who will speak on a specific area of law (including tax law, planning law and international trade law), and how it impacts on nutrition and diet-related health.

Later in the day, a speaker from NSW Health will discuss the Department’s new framework for healthy food and beverages in its health facilities.

Further information about the Showcase, including the program, is available here.

The event is free, but registration is essential.

Any questions about the Showcase can be directed to Belinda Reeve (the co-organiser): Belinda.reeve@sydney.edu.au

 

The ten secrets to surviving Law School REVEALED

 

one-does-not-simply-one-does-not-simply-stroll-through-law-school

OK, that title was complete clickbait. And usually this is a blog about health law. But we run a Master of Health Law program, and with second semester now upon us (welcome back, students), I thought I’d try something different.

The first year of Law School is tough. I didn’t enjoy it very much and I spent a lot of time flailing around, not entirely sure what I was doing.

I feel like I have a slightly better idea now that I’ve completed two undergraduate degrees and a PhD, and started working as a lecturer.

Lecturer 4
Me, but not really.

So, having lived to tell the tale, here are my top ten tips for surviving law school.

  1. Come to class

I get it. All the lectures are recorded these days, so why bother getting out of your pajamas and coming to class? First, research shows that attending lectures can improve students’ academic performance. Second (and just as important), university can be a lonely place. Lectures are a reason to get out of bed, put on real clothes, and interact with other human beings. Who knows? You may even make a new friend. Lectures give your day a sense of structure, and they could even help us learn to listen without checking Facebook or doing a spot of online shopping.

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  1. Read the cases

Every semester I get this question:

Do I really need to read the cases?

The answer is yes. Emphatically, and unequivocally.

Along with statutes, cases are our source of law – not your lecturer, and not the textbook. Lecturers may explain the principle deriving from a case, but if you don’t know the facts or the reasoning behind the decision, how will you know if that principle can be applied to the facts in a problem question? Further down the track, when you’re a practicing lawyer, your client’s case may turn on the meaning of the word “reasonable.” And he or she will expect you to have read and understood all of the relevant cases on what “reasonable” means. There’s a lot of reading, I know, but cases become easier to read with practice, and your writing will improve as your reading does.

Judgments are the foundation of our discipline and our practice, and it makes me feel like this when students seem to think that reading cases isn’t necessary.

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  1. Learn how to learn

Law School’s simple, right? Come to class, read cases, take notes, done.

Not so much.

You need to learn a number of new skills along with cramming your head full of content. These include: writing a concise case summary, learning how to answer a problem question, and conveying information effectively in oral and written form. It took me a long time to learn that just taking screeds of notes was not the path to effective study. Learn from my mistakes and think critically about what you’re doing. The Law School has a number of resources for learning the skills required to be a successful law student, and a book like this one may also help.

  1. Get to know how special consideration and appeal processes work – right now

The University of Sydney has a central process for dealing with (most) special consideration requests, and for disability services. It’s a good idea to know about these services before you need to use them. Don’t be the person panicking on the day of the exam because you’re sick and can’t sit the exam, and don’t know what to do next. The same goes for appealing your marks. Hopefully you won’t need to use these processes, but it’s good to have at least a passing familiarity with how they work, just in case you do.

  1. Get help when you need it

There are often a lot of things happening in your life during your time at university: break-ups, moving out of home, an all-you-can-eat seafood buffet that really was too good to be true.  It may feel like there’s no one there to help if you if you’re struggling. But the University has a range of services, including counselling, and the Law School offers various forms of support. Please talk to your tutor or lecturer if you have issues that are affecting your study. They may not be able to solve every problem, but they can offer strategies for catching up on work, for example. There is help available if you reach out, and it’s better to do so sooner rather than later when everything’s falling apart.

  1. Check your email

You’ve emailed me (your lecturer) about an important, life-changing event. I’ve emailed you back. You don’t check your email for a week. There’s not much I can do in the meantime, and it’s frustrating. Check your university email regularly. If you don’t think you’ll remember to do it, set up a redirect so it goes to another account that you do check on a regular basis.

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  1. Manage stress

One thing that I found invaluable during my time as a student (and in life more generally), is learning techniques for managing stress. This could mean mindfulness, exercise, catching up with friends – whatever works for you, so long as it’s sustainable and beneficial in the long run. Sitting exams and submitting assignments are stressful, and we’ve got to learn how to deal. Remember that prevention is better than cure, and regularly engaging in activities like exercise may help to avoid a death spiral of depression and anxiety.

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#blessed.
  1. Get involved

It’s often difficult for students to find time for anything but study or work. But one thing I sincerely regret not doing when I was an undergraduate is participating in the life of my faulty more. This could be performing in the Law Revue, it could be mooting, it could be only the occasional social event. I understand that students may feel like they don’t fit in, or that those sorts of things are not for them. But I can tell you from talking to my students that it’s not uncommon to feel that way. Maybe this is something faculties need to think about. But please don’t let feelings of not-fitting-in (or just plain shyness) stop you from attending events.

  1. Make the most of your degree

There’s a lot of talk about how competitive it is to get a job in law these days, particularly with the increasing number of graduates coming out of law schools. Students don’t need any more pressure to hustle to get a good job when they finish their degree. But you will get out of university what you put in. This means using your time at university to look for opportunities that will help you move towards the career you want to be in when you graduate. I’m not necessarily talking about creating a start-up to help you get a job in a law firm. I put in an application for an obscure summer scholarship that was advertised on a notice board, and that move changed the trajectory of my whole career. There are a variety of opportunities available at University, and it’s important to be proactive in searching out the ones that suit you best.

  1. Have… fun (?)

This blog post could end with a picture of happy smiling students strolling across the law school lawn, and with me saying something like, “Enjoy yourself! University is the best experience of your life, blah blah.” But law school is often demanding, and it’s not necessarily a rewarding experience being broke and living in a share house with people who may or may not have fleas.

So my final suggestion is not “have fun,” but “persist.” You will not like every course. In some, making it through the end of the lecture may be a triumph, and in those courses, survival may be the name of the game.

But you will find courses that you enjoy, and moments where you feel like you have conquered the subject. This is what makes it all worthwhile, as well as finally getting your degree at the end. And what makes it worth it for me is seeing my students getting to graduation, and then moving on to even greater things. Good luck.

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I see you Australian Law Memes

Ps. University is a great time to experiment with your style, and if you feel like dying your hair blue, then go for it. It becomes harder to do things like that once you have a serious job, like being a law lecturer. Just don’t do it right before your clerkship interview.

 

Upcoming events: Engaging with Advocates

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On Friday the 28th of July, Sydney Health Law is hosting Engaging with Advocates, along with the Food Governance Node and the Healthy Food Systems Node at the Charles Perkins Centre.

This event aims to connect early career researchers with leading civil society advocates in order to foster collaboration and increase the impact of research. Representatives of organizations working on the sustainability of food systems, promoting healthier diets, and championing consumer rights will share personal experiences of using research in their efforts to improve policy, and offer insights for academics looking to strengthen the practical relevance of their research.

This event will feature keynote presentations by:

  • CHOICE
  • The Live Lighter Campaign (Heart Foundation Western Australia); and
  • Sustain: The Australian Food Network

The keynote presentations will be followed by a session where participants workshop “live” policy issues, and the event will conclude with networking drinks.

While the event is targeted at early-career researchers, academics at every level are welcome to attend, as are members of civil society and government organisations, and others who are interested. Further information can be found at this link.

We hope to see you there!

Promoting health goals in a self-regulating industry

Earlier this year I published an article on self-regulation of food marketing to children in Australia. I focused on two voluntary codes developed by the Australian food industry to respond to concerns about children’s exposure to junk food advertising, and how it might affect their eating habits. My article pointed out the many loopholes in food industry self-regulation, mirroring other concerns expressed about regulation of junk food marketing to children, and described how the Australian regulatory regime might be strengthened.

Jane Komsky recently published a blog post on my paper on The Regulatory Review, the blog of the Penn Program on Regulation. We republish Jane’s post below, with the kind permission of The Review.

Parliament House in Canberra, Australia

Tony the Tiger. Ronald McDonald. Cap’n Crunch. What do these three characters have in common?

They are all memorable characters that children love—which is why the Australian food industry does not hesitate to use them to promote foods widely thought to be unhealthy.

According to Professor Belinda Reeve of Sydney Law School, food marketing in Australia has contributed significantly to the country’s increased rate of childhood obesity. Reeve argues that childhood obesity often leads to low self-esteem, bullying, and major health problems, such as diabetes and heart disease. Thus, limiting children’s exposure to unhealthy food marketing could help lower the rate and risk of the condition, says Reeve.

In response to this growing concern about the effects of unhealthy food marketing to children, the World Health Organization (WHO) encourages countries to adopt effective regulatory measures. While the WHO offers guidance for the design and implementation of regulatory measures, the Australian regulatory regime prefers to allow the food industry to regulate itself. For example, the food industry developed “voluntary pledges” where companies agreed to advertise only healthier products to children, restrict their use of product placement, and report annually on their compliance.

Although self-regulation of food marketing can be effective, Reeve argues that the self-regulation route does not typically work in industries that have economic motives not to comply. She posits that the food industry in Australia continues to promote its own private interests at the expense of public health goals. Ideally, according to Reeve, the industry should be put on “notice” that unless the industry players actively advance public health goals, the government regulators will intervene with more oversight and regulations over the industry, a so-called responsive regulatory approach.

The Australian food industry, through its voluntary self-regulation program, adopted only very narrow regulations, which focus strictly on food advertisements specifically directed at young children, says Reeve. Reeve explains that food companies avoid regulation by creating advertisements “officially” targeting adults and families, instead of young children, while simultaneously using animated characters that children find appealing. Reeve urges a “significant expansion” to the existing rules to close off these loopholes.

In addition to permitting child-friendly advertising, the current Australian advertising system fails to limit unhealthy food advertisements, Reeve argues. The WHO explains that any exposure to unhealthy food marketing influences children, who, in turn, influence their parents to buy these meals for consumption, even when the advertisement is officially targeted for other audiences. The WHO suggests the regulation will be more effective if the main goal aims to reduce children’s overall exposure to unhealthy food marketing, not just reducing the marketing that targets children.

Reeve explains that to enforce the Australian food marketing industry’s voluntary self-regulation program effectively there must be better oversight over the industry as a whole. Reeve first suggests introducing an administrative committee with representatives from government agencies, as well as other external and internal stakeholders to balance private and public interests. This committee would be responsible for collecting and analyzing data about the nutritional quality of products marketed to children and the industry’s level of compliance. The committee would then track improvement from companies’ mandatory reporting requirements.

Reeve writes that this committee would implement an enforcement mechanism—such as sanctions—if companies were to breach their responsibilities. Sanctions provide a strong motivation for compliance through potential reputational and financial consequences for companies. Similarly, the committee would encourage compliance through a wide range of incentives.

If the committee finds that the self-regulation program does not achieve high levels of compliance, Reeve suggests moving to a co-regulatory system. A co-regulatory system would allow the government to get more involved in regulation by creating legislative infrastructure requiring all food industry companies to follow regulations and preapproved goals. The food marketing industry would still set its own standards, but the responsibility for monitoring and enforcing these standards would be transferred to a government agency, thereby putting greater pressure on companies to comply.

If the industry fails to make significant progress under the co-regulatory system, Reeve suggests that government adopt new statutory measures altogether. Reeve promotes a prohibition on unhealthy food marketing on television until late at night, restricting marketing on media platforms with large child audiences, and banning unhealthy food marketing in and around sites where large groups of children gather. Reeve even suggests prohibiting the use of animated characters and celebrities to promote unhealthy foods.

Once the government implements these statutory measures, a government agency would monitor and enforce the rules. In some cases, the government could even prosecute companies that “engaged in serious forms of noncompliance.” The agency would regularly analyze and write reports about the progress of reducing children’s exposure to unhealthy food marketing.

Reeve anticipates that this type of government intervention would be viewed as intrusive and would face industry resistance. The industry’s response might suggest that this type of intervention is not practical. But, Reeve believes the threat of this intrusive government intervention will motivate the industry to comply with the softer regulations that should be put in place first. Such a threat will also provide the government with greater bargaining power for implementing more effective voluntary and co-regulatory policies.

According to Reeve, the Australian food marketing industry has a real opportunity to upend the rate of childhood obesity, but only if the industry puts the public’s health interests before its own private interests.

#FitSpo? No thanks.

Fitspo

Now that we’re in May, it’s likely that everyone’s New Year’s resolutions to eat better and drink less have fallen by the wayside. And as we move into winter (in the Southern hemisphere at least), it’s getting harder to convince yourself to get out from under the blankets and go for an early morning run.

It’s harder still to look at photos of thin but incredibly toned people demonstrating twisty Yoga poses, which appear to have taken over Instagram, Tumblr and other social media sites, as well as marketing for supplements and sports gear.

These kinds of pictures form part of the Fitspo (“Fitspiration”) movement, which focuses on images of athletic-looking woman (rather than men, for the most part) and adopts mantras such as “fit not thin” or “strong is the new skinny.” Fitspo represents a backlash against the obesity epidemic on the one hand, and “thinspiration” or pro-anorexia sites on the other.

Fitspo might be seen as a positive, embracing the idea of strong, dynamic women who aren’t afraid of lifting weights or building muscle.

But I think we should say no to FitSpo, and more specifically, to images of tiny, toned women looking graceful yet sporty in carefully chosen athleisure wear.

Why? Well, where to begin.

There’s nothing wrong with promoting or encouraging physical activity, and if you want to post on Facebook that you just ran 10km, well, you won’t see any complaints here. But FitSpo often conflates vanity and self-promotion with fitness, and its body positive message can hide obsessive dieting or exercise routines that are just as detrimental to women’s health as excessive weight gain or eating disorders.

What’s more, Fitspo continues the traditional trend of close scrutiny of women’s bodies (at the expense of prizing women’s intellects or personalities), as well as encouraging competition between women as to who can look the most toned (but not too bulky, remember).

People who exercise a lot don’t necessarily look like FitSpo models. I’m a long-distance runner and general all-round exercise junkie, but I don’t have the legs of Meghan Markle (I don’t have Prince Harry either for that matter). I have stretch marks, a scar where I burnt myself with the iron accidentally (long story), and what could best be described as wobbly bits.

Even professional athletes don’t necessarily meet the Fitspo ideal. One of the best things about looking at pictures of female athletes is that it shows that women come in all shapes and sizes. But keep in mind that Serena Williams, one of the world’s most successful athletes, has faced criticism over her body shape.

13th IAAF World Athletics Championships Daegu 2011 - Day Three
Valerie Adams, New Zealand’s world champion shot putter. Image from olympic.org.nz

For the most part, FitSpo normalizes a particular brand of (thin, white, middle-class) beauty. It suggests that we can only do exercise if we can look svelte in expensive sports gear, while sucking down green goddess juices in perfect make-up.

Sport and exercise aren’t just for the young and beautiful. Everybody needs to be moving more, and they should feel comfortable and happy when doing it, rather than self-conscious about how they look or whether they’re wearing the right thing. There’s a book I like called Just Ride. Its central argument is that people shouldn’t worry about having flashy Lycra jerseys, clip-on shoes or grinding out endless miles– they should just get on their bike (in normal clothes) and ride. The same applies for other forms of exercise too. But I worry that body beautiful ideals too often keep people out of the gym or off the walking track.

It doesn’t have to be this way. Check out this ad, part of the New Zealand Government’s “Push Play” campaign to encourage physical activity. Another ad in this series featured a Polynesian man taking his pig for a walk – not exactly the Insta-perfect image we might see on Fitspo sites, but one we should be encouraging instead.

So how about making a May resolution to put on whatever clothes you feel comfortable in, and going for a walk with friends, taking up salsa dancing, playing a game of footy, or doing whatever else you like to get moving. And feel free to post a picture on social media, even if you do look #lessthanperfect.