Public Health Law

Alcohol companies continue to play by their own rules, putting our children’s health at risk

Belinda Reeve Health Policy, Public Health Law , ,
A mother and her young son playing together in a park

Reposted from the Foundation for Alcohol Research and Education (FARE). FARE is the leading not-for-profit organisation working towards an Australia free from alcohol harms. They approach this through developing evidence-informed policy, enabling people-powered advocacy and delivering health promotion programs. https://fare.org.au/alcohol-companies-continue-to-play-by-their-own-rules-putting-our-childrens-health-at-risk

Last year, a Dan Murphy’s mobile billboard rolled into Byron Bay, parking itself 185 metres from Byron Bay High School. Emblazoned across it read, “Go for a skate while you wait for your Dan Murphy’s order to arrive.”  

Our community expects advertising of harmful and addictive products like alcohol to follow government-led rules that protect our children, families, and communities from harm. But alcohol companies are largely left to write and administer their own rules through the Alcohol Beverages Advertising Code (ABAC) Scheme. 

The result — our children are increasingly exposed to alcohol marketing, increasing their risk of using alcohol at an earlier age and in higher volumes.i 

So, when community members complained that the Dan Murphy’s billboard was targeting their children, their complaint was dismissed by ABAC.ii  

This is a typical response by ABAC, which is funded and managed by the three major alcohol industry peak bodies (Brewers Association, Spirits & Cocktails Australia, and Australian Grape & Wine).  

Fundamentally, the ABAC Scheme is flawed. This is most clear through the voluntary nature of their advertising code, meaning that alcohol companies are not required to abide by the code and don’t face the consequences for breaching it. 

The voluntary code is also limited in scope and ambiguous, which often leads to interpretations favourable to alcohol company interests, allowing our children to be exposed to harmful marketing practices. 

There are clear contradictions in recent ABAC adjudication decisions that dismiss community complaints about alcohol marketing targeting children and adolescents.  

For example, in the Dan Murphy’s billboard case, the ABAC panel determined that the advertisement was not appealing to children because the advertisement used dark rather than bright and contrasting colours. However, in June 2021, the panel also dismissed a community complaint about marketing by alcohol giant Diageo that used bright and contrasting colours and childlike phrasing ‘New can, who dis?’. The panel stated that the ‘retro’ design made the advertisement primarily targeted to adults.iii  

In December 2021, the ABAC panel dismissed community complaints about a bright cartoon-styled mural advertising the rapid alcohol delivery company Boozebud on the same street as a primary school. Not only did the panel dismiss this community complaint, but ABAC also ‘worked collaboratively’ with Boozebud to develop this lively mural. Although hundreds of children passed by this mural every day, the panel dismissed the complaint because it appealed to adults as well.iv  

Despite the Code stating that the use of designs that create confusion with soft drinks constitute an appeal to children and adolescents, in March 2022, ABAC dismissed a community complaint about an advertisement for Bundaberg Rum that closely resembles non-alcoholic ginger beer. The advertisement featured a cross-promotion between the alcoholic and non-alcoholic products, with both products depicted, but it was still deemed not to breach the Code.v  

In further contradiction, the use of Bundy Bear in this cross-promotion was not deemed to breach the code, despite the ABAC panel having previously stated that Bundy Bear has the potential to appeal to children.vi This builds on the history of Diageo’s Bundaberg Rum advertising to children, including during the popular show for toddlers, Dora the Explorer.vii 

These are just a few examples of ABAC’s recent failure to protect children and adolescents from alcohol marketing, but the systemic failures of the ABAC Scheme are well documented.viii  

Our community deserves better advertising standards for alcohol products. These should be developed and administered by a governing body that represents the community’s interests, not the interests of alcohol companies. Only then can we see alcohol companies being held accountable for harmful targeting of children.  

i Anderson et al. (2009) Impact of Alcohol Advertising and Media Exposure on Adolescent Alcohol Use: A Systematic Review of Longitudinal Studies. Alcohol & Alcoholism 43(3):229–43; Smith L.A. and Foxcroft D.R. (2009) The effect of alcohol advertising, marketing and portrayal on drinking behaviour in young people: systematic review of prospective cohort studies. BMC Public Health 9(51) doi:10.1186/1471-2458-9-51; Jernigan et al. (2016) Alcohol marketing and youth alcohol consumption: a systematic review of longitudinal studies published since 2008. Addiction 112: 7–20 doi:10.1111/add.13591; Sargent and Babor (2020) The Relationship Between Exposure to Alcohol Marketing and Underage Drinking Is Causal. Journal of Studies on Alcohol and Drugs. 

ii ABAC (2021) ABAC Adjudication Panel Determination 129/21.

iii ABAC (2021) ABAC Adjudication Panel Determination 145/21.

iv ABAC (2021) ABAC Adjudication Panel Determination No 273/21.

v ABAC (2022) ABAC Adjudication Panel Determination No 11/22.

vi http://www.abac.org.au/wp-content/uploads/2013/04/Final-Determination-Bundaberg-23-April-2006.pdf

vii Amy Corderoy, Sydney Morning Herald, ‘Bundaberg Rum advertisements on Dora the Explorer videos spark outrage’ (2015) <https://www.smh.com.au/healthcare/bundaberg-rum-advertisements-on-dora-the-explorer-videos-spark-outrage-20150923-gjte3x.html>.

viii For academic reviews see: Reeve B. ‘Regulation of Alcohol Advertising in Australia: Does the Abac Scheme Adequately Protect Young People from Marketing of Alcoholic Beverages?’, QUT Law Review (2018) 18(1) 96–123; Pierce H et al. ‘Regulation of alcohol marketing in Australia: A critical review of the Alcohol Beverages Advertising Code Scheme’s new Placement Rules.’ Drug Alcohol Review (2019) 38(1) 16–24. For government reviews see: Northern Territory Government, ‘Alcohol Policies and Legislation Review Final Report’ (2017) Available from https://alcoholreform.nt.gov.au/milestones/about-the-review/final-report; Education and Health Standing Committee. Alcohol: Reducing the harm and curbing the culture of excess. Legislative Assembly, Parliament of Western Australia; 2011. Available from: https://www.parliament.wa.gov.au/parliament/commit.nsf/(Report+Lookup+by+Com+ID)/1511331A52931060482578B80007F0D5/$file/97909904.pdf

A short(ish) explainer on public health law

Belinda Reeve Public Health Law ,
Image by Pam Menegakis via Unsplash

Stay-at-home orders, curfews, and mandatory quarantine have brought public health law to the public’s attention during the Covid-19 pandemic.

While public health law might be new to some, there is an entire academic discipline devoted to it, with a host of researchers and practitioners based in law schools (including dedicated health law and public health law centres), research institutes, non-profits, and health departments around the world. Public health law experts also work for global organisations such as the World Health Organisation. This is a short explainer on the discipline of public health law for anyone coming to it for the first time.

Public health law is distinct from health law, which is concerned with the law’s role in areas such as the provision of healthcare, the regulation of healthcare professionals and new medical technologies, medical negligence, and health information privacy.

The scope of public health law is much broader. Based on Lawrence Gostin’s widely cited definition, it is:

…the study of the legal powers and duties of the state to ensure the conditions for people to be healthy… and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for protection or promotion of community health.

A key focus is dedicated public health laws and their provisions on infectious disease control. These laws create the infrastructure for public health services and disease surveillance and reporting, but they also grant officials extensive powers to order the testing, treatment, vaccination, isolation, and quarantine of individuals with an infectious disease. These powers were rarely used in many countries (and may even have seemed archaic), until the Covid-19 global pandemic broke out. This is perhaps the first time that many people understood the coercive nature of public health law and saw these laws operating in practice.

There is now an extensive body of public health law research on national legal responses to Covid-19, as well on the international dimensions of the pandemic response, such as the WHO’s use of the International Health Regulations to declare Covid-19 a public health emergency of international concern (PHEIC).

Official powers on infectious disease control illustrate some of the fundamental tensions at the heart of public health law. These include the tension between protecting individual rights and freedoms and promoting collective goods. Another is between achieving public health goals and achieving other social and economic objectives. Management of Covid-19 demonstrates this, with measures such as quarantine (which limits freedom of movement and other individual rights) being used extensively in the name of public health. Stay-at-home orders also limited the spread of Covid-19 but came at the expense of people’s ability to work, and at the expense of national economic functioning.

Some might think that public health lawyers would be unquestionably in favour of such measures. But a key part of the discipline is testing when the use of government powers is justified, legitimate, and proportionate to the objectives governments are trying to achieve, and holding governments accountable for the misuse (or failure to use), their public health powers. It is crucial to critique the use of extraordinary government powers, particularly if accompanied by the suspension of usual human rights protection measures, and media freedoms.

These kinds of tensions between individual rights and collective goods also play out in relation to legal measures to prevent non-communicable diseases (NCDs) such as cardiovascular disease, diabetes, and cancer, which are now the leading cause of preventable death and illness globally. Governments have introduced a range of legal measures that address the risk factors for these diseases: some examples include restrictions on tobacco marketing, taxes on sugary drinks, and minimum floor prices for alcoholic drinks. Laws on NCD risk factors – particularly diet – are sometimes presented as the new, ‘fringe’ dimension of public health law, but measures such as sugary drinks taxes have been used (effectively) by governments around in the world.

There is a perception that the law shouldn’t be used to address these kinds of issues because they lack the fundamental justification found in infectious disease control measures: NCDs are by their nature non-infectious, and the development of a chronic illness is one person doesn’t pose a risk of transmission to others. Yet we accept a degree of government paternalism in many areas of public risk and safety (think of laws requiring seatbelt use, for example). This argument also ignores the huge costs these diseases impose on societies, economies, and healthcare systems, and would remove one of the most effective tools for preventing NCDs from governments’ toolboxes.

The discipline of public health law also acknowledges the critical health impact of laws outside the field of public health. Modern public health understands the determinants of health and illness as a set of interacting causes that operate at the individual level (genes, biology, and health behaviours), and encompass the conditions in which people live and work, their access to resources such as housing, education, and income, and the broader structural, economic, and cultural dimensions of our societies. Law itself can be seen as one of these broad, ‘social determinants‘ of health.

Addressing the social determinants of health requires changes to a wide range of laws and policies, including those on employment, housing, and social welfare. So, for example, organisations such as ChangeLab Solutions (a US public health law non-profit) have developed guidance on how urban planning laws can be designed to promote healthy and equitable communities. Social welfare laws in Australia have been analysed for their impact on the diets of people in lower income groups.  As almost anything can be framed as a public health issue, so this brings to into question the legitimate scope of public health law, which can become the study of life, the universe, and everything.

As well as being interested in how law can address different illnesses and their causes, public health lawyers are concerned with the nature of ‘law’ and categorising the different powers available to governments to improve public health. In a foundational model, Lawrence Gostin describes these as the power to: tax and spend; alter the information environment; design and alter the physical environment; intervene in the economic system by addressing socio-economic disparities; directly regulate businesses, people, and professionals; and to deregulate when law and regulation is an impediment to public health. Clearly law is not just a prohibition on a particular form of activity or behaviour but is a mechanism to shape social norms, economic markets, and physical and informational environments.

The discipline of public health law understands that often there is not just one law operating in isolation, but that attention needs to be paid to supporting regulations and codes of practice (or in the case of international treaties, documents such as interpretive comments), as well as any case law interpreting statutory provisions. In some areas, the main source of law may be case law (or statute law), depending on jurisdiction. Understanding the interactions different legislative and regulatory instruments, and between legislation and case law, is a key skill that lawyers bring to the field of public health.

Lawyers also bring to the study of public health an understanding of the fundamental principles of the legal system (which obviously differ according to jurisdiction), including the division of powers between federal, state, and local governments, and how the powers and functions of each level of government are determined by legislative and constitutional frameworks. For example, the issue of pre-emption is critical in the US, where there is growing concern about state governments enacting new laws to limit the ability of public health officials and local government to introduce Covid-19 control measures.

Forms of regulation or governance developed by non-government actors are also increasingly important to public health, particularly in addressing obesity and diet-related health, which has seen the rise of industry self-regulation and collaborative partnerships with ‘Big Food’ in areas such as regulating junk food marketing to children. Public health law draws attention to the wide range of ‘soft’, collaborative, or voluntary forms of regulation developed by, or involving, businesses, trade industry bodies and NGOs. Some of these forms of ‘private regulation’ are just as complex and detailed as laws developed by governments. Public health law researchers pay close attention to the terms and conditions, implementation, and enforcement of these initiatives, as these are key factors which ultimately determine their impact on public health outcomes.

Lawyers have other specialised skills that we apply in public health law research. These include an understanding of the conventions and rules that should be followed in interpreting a legal document, and the ability to systematically identify, synthesize and analyse case law and legislation. This forms one important component of public health law research: ‘policy surveillance’, which can be used to create large databases of legal instruments that are a powerful tool for analysing law’s effect on health. Lawyers can also draft legislation and other legal documents relevant to public health.

But public health law research goes far beyond doctrinal analysis. As with other areas of legal research, it draws on a wide range of qualitative and quantitative methodologies, including health impact assessments, surveys, interviews and focus groups. It also uses theories from a variety of disciplines including epidemiology, law, sociology, political science, and psychology.

Public health law research is not simply the study of ‘law in books,’ though. Researchers analyse the implementation of laws, their enforcement, their impact on features of the physical environment relevant to health (think smoke-free laws), on people’s health-related behaviours, and on broader population health and equity outcomes. Researchers are interested in, for example, how laws on wearing seat belts or bicycle helmets are disproportionately enforced against homeless people or People of Colour. Consider too the argument that Covid-19 stay-at-home orders were used disproportionately against lower-income, diverse suburbs in Western Sydney, as compared to higher-income, majority white populations in Sydney’s Eastern suburbs. Finally, public health law research is concerned with the unintended health impacts of laws that are not targeting health, as with the effect of laws criminalizing drug use on illicit drug users’ risk of contracting HIV.

Since the outbreak of Covid-19, there has been commentary, discussion, and analysis of public health law from people with a range of different professional backgrounds. That’s great: these laws should be poked and prodded from different angles. But don’t forget: there’s an entire discipline of legal researchers who have spent their careers investigating the role of law in creating the conditions for people to live healthy, fulfilling lives.

Big Alcohol and COVID-19: industry rules fail. Again.

Belinda Reeve Health Policy, Public Health Law , ,

By Hannah Pierce, Kathryn Backholer, Sarah Jackson and Florentine Martino

Reposted from MJA Insights: https://insightplus.mja.com.au/2021/11/big-alcohol-and-covid-19-failing-self-regulation-again/

Image by Vova Drozdey (Unsplash)

WE know some people are more likely to drink – and drink more – during times of uncertainty and stress. Unsurprisingly, the alcohol industry is also aware of this.

The COVID-19 pandemic has illustrated how quickly and creatively the alcohol industry will adapt its marketing practices to appeal to people’s vulnerabilities. And in Australia, there are few rules in place to stop these predatory actions. This is despite the link between risky alcohol use and weakening of the body’s immune response to COVID-19; not to mention the long-established impacts that risky alcohol use has on the physical and mental health of individuals, families and communities.

Two studies released recently show just how deceptive the alcohol industry has been during the COVID-19 pandemic and why current industry marketing codes fall far short of protecting public health.

The extent and nature of COVID-19-washing through social media marketing

In a recent study led by the Global Obesity Centre at Deakin University and VicHealth, all COVID-19-related social media posts made by leading alcohol brands and delivery services on their official public accounts were audited over a 4-month period during the COVID-19 pandemic in Australia (February to May 2020). The study found that COVID-19-related marketing on Facebook, Instagram, YouTube and Twitter was highly prolific. Of the 26 alcohol brands and services audited, more than 400 social media posts were identified with up to a million plus “likes” or “shares” for a single post.

Sentiments of “community support” and “coping with stress” were most commonly used as a lure. For example, one brewery posted: “Connect with your mates online and we’ll get through this together, with a [beer brand] in hand”. One alcohol retailer promoted “wine” down time and another encouraged “knock off” drinks from home and “conference calls with colleagues to give you a sense of Knock Off Normality”.

Isolation activities involving consumption of alcohol were also heavily advertised. For example, one alcohol retailer posted videos with cocktail recipes, calling for #virtualhappyhour; organised online trivia nights using Facebook Events “with $300 in [retailer’s] eGift Cards (to help fund your next trivia night)”; gave away boxes of wine (valued at $100) in a competition where “community heroes” could be nominated; and organised virtual whisky tastings in collaboration with a popular brand of scotch.

Citing corporate social responsibility, donations of money and the production and donation of hand sanitisers were also common. By building goodwill, increasing company reputation, and thus insulating themselves from criticism, the alcohol industry may be creating an environment where further regulation of alcohol can be resisted, or worse, existing regulation may be weakened.

In our opinion it is clear that Big Alcohol is using the pandemic as an opportunity to sell more alcohol. But the question is whether there is a system in place that prevents companies from targeting vulnerable communities with harmful alcohol marketing.

Current controls on alcohol marketing in Australia

There are very few controls on alcohol marketing in Australia. Most alcohol marketing is covered only by the alcohol industry’s own rules in the Alcohol Beverages Advertising Code (ABAC) Scheme. This voluntary scheme is developed, managed and funded by the very same companies that spend millions of dollars every year promoting their alcohol products. A substantial body of research has examined the effectiveness of this system over the past 20 years and consistently concluded that the ABAC Scheme does not effectively protect children and young people from exposure to alcohol marketing.

Having observed the industry tactics during the early months of the COVID-19 pandemic, Cancer Council WA and Cancer Council Victoria saw an opportunity to examine whether the current ABAC Scheme was expansive or comprehensive enough to deter harmful promotion of alcohol during this time. To do this, 18 determination reports considering community complaints and other publicly available documents on the ABAC Scheme website that referred to COVID-19-related alcohol marketing were reviewed against a framework for evaluating the effectiveness of industry-based regulation. The report Giving the ok to “Stay In. Drink Up” outlines the result, highlighting five problems with relying on the ABAC Scheme during the pandemic:

  • the objective of the ABAC Scheme is inadequate and unsuitable, resulting in a system that fails to protect the community, and particularly those who are vulnerable, from harmful alcohol advertising;
  • key terms in the ABAC Code are not clearly defined, leading to the dismissal of complaints about promotions that encouraged drinking in the home during lockdown;
  • the ABAC Code provisions are too narrow to capture all the themes alcohol marketers are using during the COVID-19 pandemic;
  • there is no monitoring system, so it’s not possible to know how often alcohol companies are ignoring the rules — harmful promotions stay in market unless a community member goes out of their way to make a complaint that is then upheld; and
  • there are no meaningful penalties for advertisers who breach the ABAC Scheme, providing very little incentive for alcohol companies to avoid using harmful messages during the pandemic.

When assessing the complaints about alcohol ads that referenced the pandemic, the ABAC Panel appeared to give no consideration to the impact the pandemic was having on the Australian community. For example, one Facebook ad promoted a “14-day isolation pack”, which included nine bottles of wine to “help you through” 14 days of isolation. In the determination report, there was no mention of the significant amounts of stress and anxiety that many individuals and families in the Australian community were experiencing due to the pandemic. Instead, the ABAC Panel decided that promoting alcohol via an “isolation deal” was the same as referencing a “Christmas pack”. They believed that the post would not be understood as encouraging people to drink all nine bottles of wine in 14 days and so the complaint was dismissed. Similarly, alcohol ads including the phrases “Stay In. Drink Up”, “survival kits”, and “all day every day” were all deemed acceptable.

In our opinion the ABAC Scheme has been inadequate at preventing harmful alcohol marketing during the pandemic. Previous research has focused on the ABAC Scheme’s ability to prevent the exposure of children and young people to alcohol marketing. This is because we know the more children are exposed to alcohol advertising, the more likely they are to start drinking earlier and more heavily. An effective regulatory system is crucial for protecting children from exposure to alcohol marketing.

In our opinion, the COVID-19 pandemic has left many more Australians vulnerable to influential marketing messages from the alcohol industry. The well recognised deficiencies of the ABAC Scheme have allowed the alcohol industry to bombard the community with harmful alcohol marketing at a time when they are most vulnerable.

The need for government regulation to protect Australians from harmful marketing practices

The management of the COVID-19 pandemic in Australia is an excellent example of the positive health outcomes we can achieve when decision makers listen to public health advice and implement evidence-based policies. These new publications mentioned above highlight once again that alcohol companies cannot be trusted to write the rules on alcohol advertising, and demonstrate the urgent need for the Australian Government to introduce legislation to protect the community from harmful marketing practices. It is time for the government to step up, listen to the public health evidence and advice, and put people before profits.

Hannah Pierce is an Alcohol Policy and Research Coordinator with the Alcohol Programs Team at Cancer Council Western Australia. Twitter: @hannahpierce01

Kathryn Backholer is a National Heart Foundation Future Leader Research Fellow and Associate Director of the Global Obesity Centre at Deakin University. Twitter: @KBackholer

Sarah Jackson is Senior Legal Policy Adviser at Cancer Council Victoria and leads policy for Alcohol Change Vic, a coalition of  organisations that campaigns for policy reform to prevent alcohol harm in Victoria.. Twitter: @SarsJackson

Florentine Martino is a Postdoctoral Research Fellow at The Global Obesity Centre (GLOBE) at Deakin University in Geelong. Twitter: @fp_martino

COVID-19, medical research governance, and public health orders

Belinda Reeve Health Policy, Healthcare Law, Mental Health, Public Health Law ,
Image: Mika Baumeister

Posted by Belinda Reeve on behalf of Cate Stewart

The impact of coronavirus-related biomedical research and public heath laws have been considered in recent articles co-authored by Cameron Stewart, Professor of Health, Law and Ethics at the University of Sydney Law School.

Science at warp speed: COVID-19 medical research governance

In biomedical research focused on developing COVID-19 vaccines and therapies, the need for speed is taken for granted. But “what, if anything, might be lost when biomedical innovation is sped up”? In a timely article in the Journal of Bioethical Inquiry, Professor Cameron Stewart and colleagues, consider a study (on the use of anti-malarial drug hydroxychloroquine for treatment of COVID-19) recently retracted from The Lancet to illustrate the potential risks and harms associated with speeding up science.

As Professor Stewart and his co-authors note:

“[T]the potential damage caused by not ensuring effective governance of research during epidemics may be immense. Harmful drugs and devices might go on to injure millions of people, useful drugs and devices might be abandoned, the public’s faith in science and medicine might be undermined, and irrational and ineffective healthcare might proliferate.“

The article goes on to suggest a range of measures to address weaknesses in technical or methodological rigour, lack of peer oversight, and unmanaged conflict of interest in pandemic research.

“This is a difficult conversation, but one that must be undertaken. After all, this is not the first time that science has been sped up during pandemics with problematic effects, and we will undoubtedly need to speed science up again, many times in the future.”

COVID-19 public health orders and mental health practitioners

Professor Cameron Stewart and colleagues look at restrictive practices in Australian COVID-19 public health orders and their implications for mental health practitioners in the October 2020 issue of the International Journal of Mental Health Nursing.

Their article notes that due to the COVID-19 pandemic, health authorities in all Australian jurisdictions can invoke public health orders that allow for an extremely broad range of coercive orders, including forcible detention, testing, and treatment of any person reasonably suspected of being COVID-19 positive.

The article highlights relevant public health laws for mental health practitioners to be aware of and suggests that mental health units and public health units establish lines of communication to work together.

Professor Stewart and his colleagues conclude with a call for nationally consistent regulation as “the best way to encourage best practice, fair decision-making, the protection of human rights, and the promotion of public safety”.

Cameron Stewart teaches in Sydney Law School’s Master of Health Law program, including subjects on Death Law, Health Care and Professional Liability, and Government Regulation, Health Policy and Ethics.

Related posts on COVID-19 from the Sydney Health Law team:

https://sydneyhealthlaw.com/2020/03/18/whos-in-control-of-australias-response-to-coronavirus-part-1-legal-frameworks/

https://sydneyhealthlaw.com/2020/03/19/whos-in-control-of-australias-response-to-coronavirus-part-2-operational-responses/

https://sydneyhealthlaw.com/2020/08/26/rule-of-law-in-the-covid-19-response

Strengthening law’s role in improving Australia’s diet

Alexandra Jones Food, Public Health Law ,

Food_Governance_Conference

Alexandra Jones and Belinda Reeve

This post originally appeared in MJA Insight and is re-posted with the MJA’s kind permission. The original article can be found at this link.

THE law can be a powerful tool for improving population health, but remains underutilised in addressing Australia’s huge burden of diet-related disease.

Taken in a broad sense, the law includes legally binding rules found in constitutions, statutes (or legislation), regulations, and other executive instruments, international treaties, and cases decided by the courts. It also includes the public institutions responsible for creating, implementing and interpreting the law.

Countries around the world are using law in innovative ways to improve nutrition, with a growing body of evidence demonstrating their effectiveness. Many of these innovations will be discussed when experts in the field gather at the University of Sydney’s Law School from 3 to 5 July for the 2nd Food Governance Conference. The conference will explore how law, policy and regulation address food system challenges or contribute to them at the local, national and global levels. The conference opens with a free public oration on Wednesday 3 July from Hilal Elver, the United Nations Special Rapporteur on the Right to Food.

To tackle high rates of obesity and sugary drink consumption, Mexico introduced a 10% tax on sugar-sweetened beverages in 2014. Evaluations of the tax found a 5.5% decline in the purchase of taxed beverages in the first year after its introduction, and a 9.7% decline in the second year. Over 40 countries have now introduced similar taxes on sugary drinks, with more likely to follow suit.

One of the most straightforward measures for improving dietary health is removing industrially produced trans fats from the food supply. Trans fat bans have been introduced by countries such as Denmark, Singapore and Switzerland, and research demonstrates these bans have virtually eliminated trans fats from the food supply. They are also more effective than voluntary measures in reducing trans fat levels in food.

The success of trans fats bans has prompted calls for similar laws to be used for nutrients such as sugar and salt, with South Africa and Argentina taking the lead on setting mandatory limits for salt in a range of commonly consumed foods. Saudi Arabia has recently announced its intention to set similar maximums for added sugar.

It’s not just national governments that are taking legislative action on dietary health. Legal innovations are taking place at the local and global levels.

Local or municipal governments often lead the way with laws or regulations that aim to improve nutrition. London has banned unhealthy food marketing on the underground, train, tram and bus services, following concerns about high levels of childhood obesity. New York City’s attempt to ban large servings of sugary drinks received widespread media and public attention; less well known is the Minneapolis Staple Foods Ordinance, which requires grocery stores to stock a minimum number of staple foods, such as fruits, vegetables and cereals.

At a global level, countries including Australia have ratified international human rights treaties that obligate them to take national action on unhealthy diets. The nature of these commitments has been explained in comments from international treaty monitoring bodies and the UN Special Rapporteurs on the Right to Food and the Right to Health. The monitoring committee for the UN Convention on the Rights of the Child, for example, has expressly called for restrictions on marketing of unhealthy food to children to protect child rights.

This last example illustrates that while legal interventions targeting the food system are important, other areas of law play a profound role in shaping the social determinants of diet-related health. Planning law can be used to ensure easy access to stores selling healthy, affordable food. Social welfare laws address barriers to food security such as poverty, poor quality housing and homelessness. Consumer protection laws shape the information environment (among other things) and provide protection against misleading and deceptive food marketing.

Australia needs strong national leadership on diet-related health, particularly considering our high levels of obesity (nearly two-thirds of adult Australians are overweight or obese) and diet-related non-communicable diseases, combined with rates of food insecurity that are unacceptably high in such a wealthy country.

Yet to date, the federal government has relied on voluntary measures and collaborative partnerships with industry to deal with issues such as marketing of unhealthy food to children, salt reduction, and the Health Star Rating front-of-pack nutrition label.

Evidence shows that these initiatives tend to suffer from limited uptake by food businesses, significant weaknesses in their design and implementation, a failure to manage commercial conflicts of interest, and a lack of transparency and accountability in governance processes.

The Health Star Rating, for example, has now been in place for 5 years but appears on less than one-third of all products, mostly those that score at the upper end of its five-star scale. This limits its value in guiding consumers towards healthier choices.

The benefits of legislation, in contrast, include mandatory compliance, with legal penalties available for non-compliance, and formal, transparent processes of enactment and amendment. The law can reach entire populations and create healthier environments in a way that is significantly more difficult for voluntary measures. This is one reason why 10 countries, including recent adopters Chile, Peru, Israel, Sri Lanka and Uruguay now have mandatory front-of-pack labels.

Australian state governments have taken important steps towards improving nutrition at a population level, for example, through kilojoule information on fast food menus, and removal of sugary drinks from schools and hospitals, but there is more that could be done. For example, legislative frameworks for city planning lie within state control, but tend not to support obesity prevention objectives.

Local government action on diet-related health is also typically overlooked in thinking and decision making on nutrition policy. However, Australian local governments possess a range of functions and powers that could be used to leverage access to healthy food, particularly within a framework of supportive state legislation, and many already have in place initiatives that have an impact on nutrition, for instance, policies on community gardens and urban agriculture.

Australia is a world leader in the use of law to regulate the manufacture, sale and marketing of tobacco products, and won significant victories against tobacco manufacturers in domestic and international courts. Australia now has some of the lowest smoking rates in the world, but we lag behind in using law to improve diet-related health.

The federal Health Minister recently announced the government’s intention to develop a national preventive health strategy. This is a rare window of opportunity to bring Australia to the forefront of action on diet-related health. Legal innovations overseas demonstrate that the re-elected federal government should give serious consideration to more hard-hitting – and effective – measures on nutrition. Now more than ever we need legal change that supports Australians in living longer, healthier lives.

Alexandra Jones is a public health lawyer leading the George Institute for Global Health Food Policy Division’s program on regulatory strategies to prevent diet-related disease. Her current research interests include Australia’s front-of-pack Health Star Rating system, fiscal policies to improve diets (e.g. taxes on sugar-sweetened beverages), product reformulation, restrictions on unhealthy marketing, and the interaction of international trade law and health.

Dr Belinda Reeve is a Senior Lecturer at the University of Sydney Law School and is co-founder of the Food Governance Node at the Charles Perkins Centre. Her research interests lie in public health law, with a particular focus on the intersections between law, regulation, and non-communicable disease prevention.

Upcoming event: the 2019 Food Governance Conference

Belinda Reeve Food, Health Policy , ,

Food_Governance_Conference

Sydney Health Law is hosting the second Food Governance Conference from the 3rd to the 5th of July this year.

The Conference is a collaboration between Sydney Law School, the University’s Charles Perkins Centre and The George Institute for Global Health. The 2019 Conference will explore how law, policy, and regulation address (or contribute to) food system challenges such as sustainability, equity and social justice in global food systems, and malnutrition, obesity, and diet-related diseases.

The Conference will open on the 3rd of July with a public oration by the UN Special Rapporteur on the Right to Food, Professor Hilal Elver. Also speaking will be Ronni Kahn, the founder of Ozharvest, and Mellissa Wood, General Manager, Global Programs at the Australian Centre for International Agricultural Research. You can register for this free event here.

The main days of the Conference will take place at Sydney Law School on the 4th and 5th of July. Keynote speakers at the Conference include Professor Amandine Garde, Director of the Law and Non-Communicable Diseases Unit at the University of Liverpool, and Dr Juan Rivera, Director of Mexico’s National Institute of Public Health.

Further information about the Conference, including the draft program, can be found here.

 

Upcoming events: Protecting children from unhealthy food marketing – learning from the past, ideas for the future

Belinda Reeve Food, Public Health Law , ,

Junk food marketing.jpg

Along with Cancer Council NSW and the Charles Perkins Centre’s Food Governance Node, Sydney Health Law is hosting an event on regulation of unhealthy food marketing to children.

Protecting children from unhealthy food marketing remains a hot topic, given increasing concern about children’s diet-related health.

In Australia, food marketing to children is regulated largely through two voluntary food industry initiatives. In the lead up to the 10th anniversary of these initiatives, this event will examine their success in improving the food marketing environment, along with the recent ACCC v Heinz decision and developments in food advertising regulation at a state level.

Details for the event are as follows, and you can register to attend here.

Date: Wednesday 7th November

Time: 6-8pm (canapés from 5.30pm)

Venue: Law Foyer, Level 2, Sydney Law School 

Speakers:

  • Research on food marketing and children’s health – the state of play: Associate Professor Bridget Kelly, University of Wollongong
  • Consumer law and food marketing in ACC v Heinz: Adrian Coorey ACCC, and Jane Martin, Obesity Policy Coalition
  • The food industry’s initiatives on marketing to children: Geoffrey Annison, Australian Food and Grocery Council, and Jane Martin, Obesity Policy Coalition
  • State government regulation of food advertising on transport infrastructure: Wendy Watson, Cancer Council NSW, and Emily Harper, ACT Health

Cracking the Codex: the new frontier for nutrition labelling

Alexandra Jones Food, Global Health, Health Policy , , ,

Alexandra Jones, Global health lawyer and PhD Candidate at The George Institute for Global Health and the University of Sydney
Dr Anne Marie Thow, Senior Lecturer in Health Policy at the University of Sydney
Dr Carmen Huckel Schneider, Senior Lecturer, Health Policy at the University of Sydney and co-lead of the Health Governance and Financing Group and the Menzies Centre for Health Policy

Food labels hit the New York Times recently when leaks from North American Free Trade Agreement negotiations suggested the US was being urged by big American food and soft-drink companies to limit the ability of the pact’s three members – Mexico, Canada and the US – to implement warning labels on unhealthy foods.

There is no escaping the health imperative here. Obesity has nearly tripled since 1975 worldwide: 41 million children under 5 are now overweight, while 1.9 billion adults are overweight or obese. Spiralling health and economic costs mean governments are turning to evidence-based policies to prevent and control diet-related diseases like obesity, heart disease, stroke, diabetes and dental caries.

Better nutrition labelling – including front-of-pack labels that interpret nutrition information through symbols, colours or words – are part of the comprehensive package recommended by the World Health Organization. Over 20 countries already have policies in place – they include the UK’s traffic lights, France’s Nutriscore, Chile’s ‘stop sign’ warnings (which Peru appears set to follow), and Australasia’s Health Star Rating.

This proliferation and diversity poses trade and commercial challenges, and calls for some degree of consistency in global approach have been made.

Cracking the Codex (Alimentarius Commission)

This is where the international food standards body – the Codex Alimentarius Commission – comes in.

A UN body created by the WHO and UN Food and Agriculture Organization, Codex has a dual mandate: to protect consumer health, and promote fair trade practices.

Codex standards and guidance are voluntary, but in practice frequently act as a touchstone for countries looking to develop national policies. As Codex enjoys recognition as an international standards setting body by the WTO, guidance it develops also has potential to show up in trade discussions around food.

In short: what happens at Codex matters for public health nutrition.

Done well, Codex could bolster countries to take action. Left unchecked, there’s a risk outcomes could deter countries’ from implementing policies desperately needed to stem the rising global tide of non-communicable diseases.

As Codex is also notoriously slow – there’ll be a general meeting 2-6 July in Rome, and a further discussion paper for feedback later this year – it’s critical that the process itself not be used as a ‘brake’ on growing global momentum to implement strong front-of-pack labels.

Time for public health to assume a seat at the Codex table

Industry Observers have been quick to jump on opportunities to provide input into new Codex work on front-of-pack labelling. The first working group included representation from 13 international organizations representing the food industry, particularly the sugar and beverages sectors. Only two consumer groups were there.

It’s now critical we ensure public health bring their perspective to the table.

What you can do:

Read our briefing note for more information, and

  • Get involved – contact your national Codex Contact Point or join an Observer organization
  • Speak up about the public health priorities, like:
    • the importance of a definition of ‘front-of-pack nutrition labelling’ that supports schemes most likely to be effective in achieving public health objectives – and not, for example, industry preferred options such as the Guideline Daily Amount that aren’t backed by evidence
    • preserving policy space for strong and innovative measures – evidence is rapidly evolving but currently suggests for informing consumers and improving diets, this may include mandatory labels that use interpretive elements like colours, symbols or words, underpinned by robust and transparent criteria for scoring foods
  • Encourage continued action at a national level – remember, nothing in the current process prevents interested countries from pursuing front-of-pack labelling

Want to read more?

 

This piece was originally posted on the PLOS Global Health Blog on 25/06/2018, and has been re-posted with author consent.

 

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

Belinda Reeve Food, Public Health Law , , , , ,

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

Belinda Reeve Food, Public Health Law , , , ,

shredz.png

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.