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.email@example.com
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:
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.
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.
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.
Recently, Cancer Council NSW published a study finding that food industry self-regulation in Australia has not been effective in reducing children’s exposure to unhealthy food marketing. Australian children still see, on average, three advertisements for unhealthy foods and beverages during each hour of prime time television they watch. This figure remains unchanged despite the Australian food industry introducing two voluntary codes on food marketing to children in 2009.
I undertook an in-depth analysis of the terms and conditions of the two food industry codes on marketing to children. I also analyzed the processes of administration, monitoring, enforcement and review established by the self-regulatory scheme.
My analysis drew on the code documents themselves, monitoring reports from the food industry, existing independent research, and a sample of advertising complaint determinations from the Advertising Standards Board. I also considered the revisions made to the codes in 2014 (following an independent review of the scheme), and asked whether these revisions make the codes more likely to protect children from exposure to unhealthy food marketing.
My key finding is that the substantive terms and conditions of the codes contain a series of loopholes which leave food companies with a variety of techniques they can use to market unhealthy products to children. These loopholes include:
A weak definition of “media directed primarily to children” which excludes general audience programs that are popular with children
A weak definition of “advertising directed to children,” made weaker still by the Advertising Standards Board’s interpretive approach; and
The exclusion from the codes of key promotional techniques such as company-owned characters (e.g., Ronald McDonald), brand advertising, product line advertising, and product packaging and labelling.
The processes used to administer and enforce the codes also contain a series of flaws, undermining the codes’ efficacy, transparency and accountability. These include:
A lack of consultation with, or participation by, external stakeholders in the development of the codes, e.g., consumer or child representatives, government, or public health groups;
A lack of independent, systematic monitoring of the codes; and
The limited availability of enforcement mechanisms for non-compliance.
These loopholes and limitations help to explain why food industry self-regulation has not been effective in improving children’s food marketing environment. Further, the revisions to the codes made in 2014 appear to have done little to improve the self-regulatory scheme, and are unlikely to lead to lead to reductions in children’s exposure to unhealthy food marketing.
My article sets out a “responsive” or step-wise approach for strengthening regulation of food marketing to children, by closing off the loopholes in the substantive terms and conditions of the codes, and strengthening regulatory processes, including monitoring and enforcement. Most importantly, I argue, regulation of food marketing to children needs strong government leadership and an approach to protecting children from unhealthy food marketing that doesn’t just rely on voluntary food industry action. There are a range of regulatory options available, even if government is unwilling to introduce new statutory controls on food marketing to children.
In the first week of November, Sydney Health Law will be hosting the Food Governance Conference. The conference is a collaborative endeavor between Sydney Law School and the Charles Perkins Centre, the University of Sydney’s dedicated institute for easing the global burden of obesity, diabetes, and cardiovascular disease. The conference also has sponsorship from The George Institute for Global Health and the University’s Cancer Research Network.
The Food Governance Conference will explore the role of law, regulation and policy in addressing the key challenges associated with food and nutrition in the 21st century, including food security, food safety, and preventing diet-related disease such as diabetes and cardiovascular disease. It also engages with issues related to sustainability, equity, and justice in the food supply, with a strong focus on nutrition and diet-related health in Aboriginal and Torres Strait Islander communities.
In taking such a broad focus we hope that the Conference will highlight the interrelationships between the main challenges facing the global food system in the 21st century. The conference will also showcase the work of researchers in developing new, innovative solutions to these challenges, with the conference including presenters from across Australia, as well as from the UK, Canada, and New Zealand. Some of the issues considered at the conference include:
Taxes on sugar-sweetened beverages
Free range egg labeling
The role of business in improving nutrition and diet-related health, and
The influence of trade agreements on the global food system
We have an exciting program of events around the Food Governance Conference, including two free, public lectures to open the conference.
Professor Corinna Hawkes will be giving the opening address for the conference on Tuesday the 1st of November at 6pm at the Charles Perkins Centre Auditorium. This lecture is free and open to the public. Professor Hawkes is the Director of the Centre for Food Policy at City University London and a world-renowned expert on food and nutrition policy. She’ll be speaking on the three biggest challenges facing the food system, and how we fix them. If you’re interested in this talk, you can register at this link.
Dr Alessandro Demaio will also be giving a public lecture at 1-2pm on Tuesday the 1st of November at Sydney Law School. Dr Demaio (from the World Health Organisation) will be speaking on the links between food, nutrition and cancer, and what the nutrition community can learn from the cancer community from its fight against tobacco. Further details about his talk are available at this link.
Workshop on food advocacy
Along with the Charles Perkins Centre, the Australian Right to Food Coalition is hosting a masterclass on becoming an effective food policy advocate, featuring Professor Corinna Hawkes. The purpose of this master class is to encourage debate among academics and civil society about the role of advocacy in food and nutrition policy, what it is, and how it can be used more effectively. Registrations for the master class can be made here. Please note that the master class is now full.
We’re looking forward to the inaugural Food Governance Conference at the University of Sydney, and we hope to see you there. We welcome any questions about the conference, which can be directed to Dr Belinda Reeve: Belinda.firstname.lastname@example.org
Follow #foodgovernance2016 on Twitter for updates about the conference!
In Australia, doctors must notify public health authorities of new cases of HIV/AIDs. However, strict confidentiality requirements apply to the testing, treating and notification of HIV, protecting the identity of patients.
As part of its review of the New South Wales Public Health Act 2010, the Department of Health is considering whether to remove these confidentiality requirements from NSW public health legislation. Is this a move that should be welcomed by health care professionals and patients?
Infectious disease notification
All Australian jurisdictions have laws that require the notification of certain infectious diseases. In NSW, notification requirements can be found in the Public Health Act 2010, which creates five categories of diseases that must be reported by medical practitioners, pathology laboratories, and hospitals, including HIV/AIDs.
Section 56 of the Act places confidentiality requirements on information relating to a patient’s HIV status. There are three main components to section 56:
Notifications for HIV/AIDs must be made in a de-identified format;
A person’s identifying details must not be used when arranging a diagnostic test for HIV (except in hospital situations or with the person’s consent);
A person who, in the course of providing a service, obtains information that an individual has been tested for HIV or has HIV/AIDs, must take reasonable steps to prevent that information from being disclosed. However, the information may be disclosed to a person involved in the provision of care of the patient, so long as it is relevant to the provision of such care.
Section 56 allows for disclosure of identifying information in certain other circumstances, including if there are reasonable grounds to suspect that failure to disclose the information would likely be a risk to public health. This allows for the Secretary of the Department of Health to identify and manage HIV positive individuals who pose a risk to the health of others, including (as a last resort) through public health orders that allow for the mandatory treating and detention of patients living with HIV.
Review of the Public Health Act 2010 (NSW)
NSW Health recently published a discussion paper on the review of the Public Health Act 2010 (NSW). The Ministry’s preliminary view is that HIV-specific confidentiality protections should be wound back. The paper notes several difficulties that stem from the confidentiality requirements for HIV notification:
De-identified notification increases the likelihood of duplicate testing and errors in notification, and impacts negatively upon the collection of epidemiological data, surveillance, and monitoring, and follow-up care of HIV positive patients;
Confidentiality requirements create a barrier to testing for HIV in combination with testing for other conditions as there are different consent procedures for HIV tests and other tests; and
They prevent healthcare professionals from being informed of patients’ HIV status where they are not providing treatment directly related to the patient’s HIV condition, but it would assist in providing care to know about the patient’s status (given that HIV and ART treatment have a range of health implications).
The policy of de-identifying HIV/AIDs notifications was first developed in the 1980s, at a time when most HIV infections occurred in gay men and there was considerable stigma and discrimination against the gay community and those living with HIV/AIDs. At that time, no effective treatment options were available for HIV/AIDs, making it a terminal condition. Many activists, clinicians, and community organizations were strongly against notification, and confidential notification provisions were adopted to encourage at-risk individuals to access HIV testing and care without fear of recrimination or discrimination.
The situation has changed significantly since then. Anti-retroviral therapy (ART) has made HIV a manageable, chronic condition, and has demonstrable benefits in preventing onwards transmission. Community attitudes towards the gay community and people living with HIV have changed considerably over the past 30 years, assisted by the introduction of laws that address discrimination and privacy concerns.
The discussion paper lists a number of benefits that would flow from rolling back HIV-specific confidentiality requirements:
Named notification would enable more accurate epidemiological data on HIV to be collected, for example, by allowing for better linking of HIV notifications with notifications of other conditions, which would assist with tracking and managing HIV co-infections; and
It would potentially allow better service provision and care of people living with HIV: one outcome would be that it would enable public health officers to follow up with HIV positive patients directly; liaise with clinicians; and refer people living with HIV to the relevant health services.
However, there is significant disagreement between NSW Health and HIV activists over whether named reporting would improve epidemiological data and access to care. Advocates argue that while named reporting may provide some benefit, this would be outweighed by its impact on privacy, testing, surveillance, and treatment.
HIV remains heavily stigmatized, and many people living with HIV continue to experience discrimination. These concerns are particularly relevant given that NSW criminalizes individuals with HIV (and other STIs) who fail to disclose their condition to their sexual partners.
Named reporting may deter people from being tested for HIV, particularly people from culturally and linguistically diverse backgrounds, recent migrants, highly sexually active men with multiple STIs, sex workers, and non-gay identifying men who have sex with men. People diagnosed with HIV may also be less willing to report sensitive personal information (e.g., injecting drug use), particularly if it could be used for law enforcement purposes. This would undermine the effective care of people living with HIV, as well as the quality of population-level data.
Advocates recognize that making information about a person’s HIV status, co-morbidities, and treatment regimen more widely available in clinical settings could improve care outcomes. However, they say that there are not enough examples of non-disclosure causing adverse effects to warrant the proposed changed, and the amendment would undermine the right of people living with HIV to disclose their HIV status to medical and healthcare workers at a time of their choosing.
Winding back “HIV exceptionalism”?
Writing on the legal environment of sexual health care practice, Roger Magnusson describes HIV as an “exceptional STI,” with unique legislation regulating counselling, diagnosis, and reporting of HIV. The central concerns of this legislation are the provision of supportive treatment and maintaining patient confidentiality.
Professor Magnusson describes how some countries are now winding back HIV exceptionalism, for example, in the US, CDC guidelines now recommend opt-out screening for all patients, i.e., patients are notified that screening will take place unless they decline consent. Some states, such as California, have adopted these recommendations, and while anonymous testing is still offered in many states, named HIV reporting is now the norm.
Notification of HIV/AIDs is a contentious subject, engaging issues around rights to privacy and autonomy, as well as on the role notification plays in data collection, testing, and treating. Many jurisdictions are streamlining the legal treatment of HIV testing with that of other infectious diseases; the question is whether NSW will – or should – do the same.
Governing Food will bring together researchers and practitioners from a range of disciplines to explore the role of law, regulation and policy in promoting a healthy, safe and sustainable food supply. The conference will be opened by a public keynote address on Tuesday the 1st of November, to be delivered by Professor Corinna Hawkes from the Centre for Food Policy at City University London. The main days of the conference will be Wednesday the 2nd of November and Thursday the 3rd of November.
The call for abstracts and further details about the conference can be found at this address. You can also contact Dr Belinda Reeve in relation to any questions about the conference: email@example.com.