Promoting health goals in a self-regulating industry

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

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

Parliament House in Canberra, Australia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Central Queensland Hospital v Q: Access to abortion in Queensland and children’s ability to consent to medical treatment

 

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Image: Indybay.org

The decision in Central Queensland Hospital and Health Service v Q raises interesting issues in relation to the criminalization of abortion in Queensland and children’s ability to consent to medical treatment.

Q was a pregnant 12 year old girl who was referred to medical staff at the Central Queensland Hospital after asking her GP for an abortion. Q was finding the pregnancy “very stressful emotionally” and had run away from home, self-harmed, and attempted suicide on two occasions.

The medical specialists and counselors that had met with Q supported her decision to terminate the pregnancy, as did Q’s parents. There was evidence that continuing the pregnancy would pose significant risks to Q’s physical and mental health.

Central Queensland Hospital sought orders from the Court authorizing the termination of Q’s pregnancy. These were granted by Justice McMeekin in the Queensland Supreme Court on the 20th of April, followed by the judge’s reasons a week later.

The parens patriae jurisdiction

The Supreme Court’s parens patriae jurisdiction formed the basis for the Court’s intervention. This jurisdiction grants Supreme Courts wide powers in relation to the welfare of children, with the best interests of the child being the Court’s primary consideration.

Could Q consent to the treatment?

As I discuss in an earlier post, a child can consent to medical procedures when he or she “achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed,” i.e., is Gillick competent (following Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112).

Generally speaking, parents can consent to treatment on children’s behalf when they are not Gillick competent. However, there are some forms of treatment that fall outside the scope of parental consent, known as “special medical treatment.”

Justice McMeekin held that terminations are one such form of treatment (following State of Queensland v B [2008] QSC 231). Accordingly, court authorization for the treatment would be needed if Q herself was not competent to consent to the treatment.

Justice McMeekin found that Q had a good understanding of the risks involved in the procedure, but doubted that she had the maturity to fully appreciate the long-term consequences of a decision to continue with the pregnancy. Accordingly, she was unable to make a fully informed decision and was not competent to consent to the termination. As such, it was appropriate to invoke the Court’s parens patriae jurisdiction.

Could the treatment be performed lawfully?

Queensland’s Criminal Code criminalizes the termination a pregnancy, unless authorized or justified by law. Section 282 of the Code provides that a person is not criminally responsible for performing a termination so long as it is for the patient’s benefit or to preserve the mother’s life, and is reasonable in the circumstances.

Section 286 of the Code also provides that a “person who has care of a child” must provide the necessaries of life for the child, and take reasonable precautions to prevent danger to a child’s health, including their mental health. The definition of “a person who has care of a child” can include hospitals and doctors who care for children.

In determining whether the termination was lawful, Justice McMeekin followed the approach of the Victorian Supreme Court in R v Davidson [1969] VR 667, which held that an abortion would be lawful where it was believed on reasonable grounds that the abortion was necessary to prevent serious danger to the patient’s life or health, and it was not out of proportion to the danger to be averted.

Justice McMeekin held that it was clearly in Q’s best interests for termination of the pregnancy to proceed, as it was necessary in order to prevent serious danger to Q’s mental and physical health. Further, the proposed response was not out of proportion to the danger to Q’s health. Accordingly, the termination would not be considered unlawful, and it could be justified under sections 282 and 286 of the Code.

Justice McMeekin declared that: the termination of the pregnancy through the administration of drugs was lawful; Q should be permitted to undergo the termination; and the hospital’s staff be permitted to perform it. If the drugs failed to effect a termination within five days, Q’s pregnancy could be terminated using a surgical procedure.

What are the implications of the decision for access to abortion services in Queensland?

The criminalization of abortion in Queensland creates a barrier to women’s access to reproductive services. Q was forced to wait weeks for court authorization for her termination. In 2010 a young Cairns couple faced criminal charges for importing the abortion drug Misoprostol and inducing a miscarriage at home. They were ultimately found not guilty, but following that case, many doctors in Queensland stopped performing abortions.

Lucy Clark in The Guardian suggests that similar fears and uncertainties may be behind Q’s doctors’ decision to seek court authorization for her treatment. She may be right in that respect, but it must be kept in mind that the Queensland Supreme Court characterizes abortion as a form of “special medical treatment” that parents cannot consent to. Accordingly, court authorization would still be needed to perform a termination on a child that was not Gillick competent, regardless of abortion’s status under criminal law.

Kerridge, Lowe and Stewart criticize the characterization of abortion as a form of special medical treatment, arguing that it should fall within the scope of parental consent for children’s medical treatment. A change in the common law would be required in order for a termination to be performed on a non-Gillick competent child without court authorization (although the courts could still intervene under their parens patriae jurisdiction).

Nevertheless, the decriminalization of abortion in Queensland is still an important step in enhancing respect for women’s reproductive rights, and in ensuring access to abortion services.

Donors and recipients of embryos and eggs – what happens when the relationship breaks down?

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Credit: Shutterstock

NSW Health has begun an investigation into allegations published last week by Fairfax media that the recipient of a donated embryo covered up the fact of her successful pregnancy in order to mislead IVF Australia and sever ties with the embryo donors.

Natalie Parker and her husband had three spare embryos left over from previous treatment.  They agreed to make them available to a couple who had been through multiple, unsuccessful IVF cycles.

It was a difficult decision for the Parkers because “those three extra embryos were their genetic offspring, potential siblings for their two young boys…and represented the same hopes and dreams they had for their living children”.

The embryo recipient met Ms Parker on the Embryo Donation Network, a website that “helps you to find the donor or recipient who is right for you”.

Initially both women hit it off.  The recipients agreed to the Parker’s condition for ongoing contact between the two families, and for a relationship between the genetic siblings.

However, after the embryo was transferred, contact between the Parkers and the recipient ceased.

According to Ms Parker, the recipient advised IVF Australia that the two embryos transferred to her were unsuccessful in achieving pregnancy, and that she had begun her period.

A year later, IVF Australia asked the Parkers for instructions about the storage of the last-remaining of the three spare embryos they had donated.

Ms Parker found it odd, if indeed the transfer of the first two embryos had been unsuccessful, that the recipient had not shown any interest in the third embryo, which represented a further chance for her to fall pregnant.

Some months later, Ms Parker tracked the recipient down on Facebook and was shocked to see the photo of a baby boy on the recipient’s page who bore a striking similarity to her own children, and looked to have been born around the time the donor embryos were transferred.

She felt betrayed.

Fairfax media reports that Ms Parker believes the recipient became pregnant with her donated embryo, but chose to cut off all contact, intending to deprive the resulting child of contact with his genetic siblings.

“’I trusted them’, Ms Parker said of the recipients.  “I feel taken advantage of, and incredibly sad that there is a child out there who I helped to create, and who is a part of me and my heritage, who potentially will never know where they came from”.

 

What happens when the relationship between donors and recipients breaks down?

In 2013, more than 12,600 babies were born in Australia as a result of assisted reproductive technology (ART) procedures, including in-vitro fertilisation (IVF),  donor egg, and less frequently, donor embryo.

In New South Wales, the Status of Children Act supports ART procedures by making the “birth mother” of a donated egg or embryo the legal mother, and her husband the legal father.

The Human Tissue Act prohibits trading in tissue.  This means that donors of eggs, sperm or embryos cannot be paid for making donations, although the reimbursement of reasonable expenses is permitted.

When couples who have undergone ART treatment are considering donating spare embryos that are no longer needed for their treatment, they may naturally wish to have some measure of contact with their genetic offspring.

Similarly, if a woman agrees to donate an egg to a woman or couple who need one, commercial incentives are absent.  Egg donors must be willing to undergo an IVF cycle for the sole purpose of helping someone else.

The resulting environment is a competitive one.  Recipients must compete for scarce donors and portray themselves as worthy.  It’s a matter of “please like me”, “please choose me”.  Saying this does not imply any criticism of donors.

According to Fairfax, the incident involving the un-named recipients “raises questions about the lucrative IVF industry’s commitment to ensuring the welfare of all its patients”.

To the extent that this is a criticism of IVF Australia for failing to definitively confirm whether the transferred embryos were successful in achieving pregnancy, it ignores the fact that IVF Australia had no way of “forcing” the recipient to return to IVF Australia, at her own expense, for tests to confirm whether or not the transfer of the donated embryos had failed.

Furthermore, if the result is successful, the recipient will have no further need for the services of the ART provider.  The recipient will be free to seek pre-natal care elsewhere.

Usually a recipient of a donor egg or embryo will have no reason to hide the fact of pregnancy from the ART provider; after all, pregnancy is the shared goal of both parties.

In this case, however, the recipient evidently wished to be free of the conditions imposed by the embryo donors, which included contact between the genetic siblings.

A recipient who feels this way will obviously need to hide their preferences in order to create the necessary rapport that enables them to be chosen by the donors in the first place.

Fairfax media notes Ms Parker’s strong feelings that it would be in the best interests of the child for him to have ongoing contact with her own children.

The child’s best interests will arise as the key consideration when a court is making a parenting order following the breakdown of a marriage.

In this case, however, the parentage of a child born as a result of a donated embryo is clear: the “birthing parents” are the legal parents.

In my view it is certainly in the best interests of a child born as a result of an ART procedure that they should have the opportunity to make contact with their genetic parents when they reach 18.  What is less clear is whether a genetically-related non-parent should be able to enforce the conditions on which they agreed to donate an egg or embryo – during childhood.

There would seem to be no reason, in principle, why the Family Court could not consider this issue under it welfare jurisdiction.

When exercising its welfare jurisdiction, the child’s interests will be paramount.  It is clear that access rights by genetic parents or enforced contact with genetic siblings would not follow automatically.  It would depend on the Court’s consideration of all the circumstances – assuming, in addition, that the welfare jurisdiction extended to making such orders.

 

Is it an offence to withhold information from an ART provider about a successful IVF pregnancy?

Fairfax reports that the recipient may have breached existing statutory requirements in NSW by providing false information to IVF Australia.

The Assisted Reproductive Technology Act requires ART providers to keep records of “the identity and any other prescribed information about each offspring born as a result of the ART treatment by the ART provider” (s 31(1)(c)).

This duty is further clarified in the Assisted Reproductive Technology Regulations (s. 14) which require the ART provider to keep records of (amongst other things) the name, sex and date of birth of each offspring born following ART treatment provided by that ART provider.

The Act contains an offence provision (s 62) for making a representation that is false or misleading in response to a request for information that (amongst other things) relates to the matters set out in s. 14 above.

This provision attracts a penalty of 200 units, currently $11,000

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ABAC Complaints Panel won’t consider complaint about Diageo Australia spamming 3 year-old with Bundaberg Rum video-advert

It’s official.  Spamming children with alcohol advertisements does not breach the ABAC Code, the alcohol industry’s swiss-cheese voluntary standard for alcohol advertising regulation.

The Chief Adjudicator of the ABAC Complaints Panel has ruled that the Panel will not consider a complaint about Diageo Australia spamming a 3 year-old with a Bundaberg Rum video-advert when she clicked on a Dora the Explorer video on a children’s YouTube channel.

The decision by Chief Adjudicator the Hon. Michael Lavarch AO confirms that otherwise unobjectionable alcohol advertisements do not breach the ABAC Code simply because they appear on children’s websites.

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I made the complaint to ABAC in September 2015 after the ads shown here appeared on a Dora the Explorer YouTube channel.

Fairfax press reported on the issue here.

Inexplicably, the Advertising Standards Bureau lost the complaint for 3 months, but finally found it again and forwarded it to Mr Lavarch.

Mr Lavarch’s letter can be found here.  He wrote:

“Your complaint is based upon the alcohol advertisement being placed on the YouTube channel prior to your daughter watching a programme that was clearly for younger children. The complaint however does not go to the content of the advertisement but is based solely upon the issue of where the advertisement was found.”

Mr Lavarch wrote that the complaint would “not be referred to the Panel for a determination as it raises only the issue of placement of an alcohol marketing communication rather than its content”.

In explaining his decision, Mr Lavarch referred to a previous determination of the ABAC Panel in 2012 (complaint 118/11)  where the ABAC Panel dismissed a complaint about an ad for Crown Lager appearing on a children’s website aimed at 3-8 year olds.

Despite not forwarding the complaint to the ABAC Complaints Panel, Mr Lavarch indicated that he would raise the complaint with the ABAC Management Committee for consideration.

In my view, this is a test for the integrity of the Management Committee, which is dominated by alcohol and advertising industry associations.

Why did a Bundaberg Rum ad run on a toddler’s YouTube channel?

Mr Lavarch indicated he had made inquiries of the advertiser (Diageo Australia) about how the Bundaberg Rum ad came to be running on a YouTube channel devoted to young children’s content.  This is where it gets interesting.

…Google thought you were an adult

Mr Lavarch’s letter conveys the advice of Diageo that “YouTube only serves this advertiser’s advertisements to users who are logged in to the Google platform that are aged 21+”.

I take this to mean that in Diageo’s view, I was logged into Google, and Google (which owns YouTube) assumed that the relevant YouTube channel was being accessed by an adult.

In fact, at the time, I was logged out of Google, and out of YouTube.

Even so, why should that make a difference?  Many computers used by children will be logged into Google or YouTube 24 hours a day.  Wouldn’t it be smarter for alcohol advertisers to keep away from children’s content, and to limit their alcohol advertising to websites that are age-restricted to adults?

Would Google/YouTube and its advertisers rely on the same arguments (you were logged into Google, so Google thought you were an adult) if advertisements for sex services were streamed on YouTube channels devoted to children’s content?

…You were accessing an unauthorised or pirated video

Mr Lavarch also relayed  from Diageo that “it seems that in this case the video was not an authorised, licensed, or verified video on YouTube and therefore YouTube would not have identified it as children’s content.”

This argument strikes me as self-serving.  As the photos on this blogpost illustrate, the Dora video in question was hosted by Super Dora Games, a YouTube channel with >62,000 subscribers and more than 54 million views.

Check it out.  Is it really so unreasonable to expect ABAC to hold Australian alcohol advertisers accountable when they advertise on sites like this?

This isn’t the shady backrooms of the internet, and I do not accept that children’s content websites should be fair game for alcohol advertisers.

Diageo’s assertions are not entirely consistent with advice received from the office of the Hon. Mitch Fifield MP, Minister for Communications, reported in an earlier post.  Google advised the Department that:

“[U]nfortunately [Diageo’s advertisement] was not correctly labelled as an alcohol advertisement, and Google’s other measures to identify inappropriate advertising content did not pick it up”.

The “other measures” comprise the following:

  • “alcohol advertisements are only shown to users that are logged in and who are aged 18 years and older;
  • Google excludes content that is family friendly;
  • Publishers have to opt in to show alcohol advertisements on their video content”.

So what really happened?

It’s difficult to know.  At the end of the day, Diageo Australia spammed a 3 year-old watching content appropriate for toddlers, but that doesn’t even breach the voluntary Code that Australia’s largest alcohol companies, hand on heart, have pledged their allegiance to.

Plugging the holes in the cheese

Mr Lavarch’s letter conveyed advice from Diageo Australia that the following measures have been implemented by its media partners (Google/YouTube?) to prevent similar occurrences:

  • Development of a list of ‘safe’ channels that Diageo content may appear on. All of the channels on the list are 18+ with content vetted to ensure no appeal to minors.
  • Development of a list of key words that should flag any potential areas of appeal to minors. This list ensures Diageo’s advertising will not appear alongside any content that is tagged or titled with these words.

These assurances sound constructive, but they also raise some new questions.  Is the list of channels ‘safe’ for alcohol advertising a private initiative by Diageo, or are all Australian alcohol advertisers adopting it?  Is the list publicly available?

The photos you see above illustrate that spamming children with liquor advertisements on children’s content websites is a real issue, not a hypothetical one.  In my view it would now be appropriate for the ABAC Management Committee to plug one of the holes in the ABAC cheese and to include a provision that prohibits Australian alcohol advertisers from advertising alcohol to children who are accessing age-appropriate content online.

The Alcohol Advertising Review Board, an initiative of the McCusker Centre for Action on Alcohol and Youth and Cancer Council WA, administers a voluntary Placement Code that includes the following provision:

“Alcohol Advertisements shall not appear online in connection with content that appeals or is likely to appeal to Young People.”

The alcohol industry could only object to a provision like this if it was unwilling for its members to be held accountable for spamming children and adolescents with alcohol advertisements when they are accessing material online that is of particular appeal to them.

If Diageo and other advertisers have taken steps to ensure that something like this won’t happen again, then they shouldn’t have any problems with updating the ABAC Code accordingly.

The bottom line

Unfortunately, Mr Lavarch’s response illustrates that at the present time, complaints about alcohol advertising to children – to the extent that they raise the issue of placement – are being invisibly eliminated from the ABAC complaints system, confirming the impression that there is no problem to begin with.

Complaints like mine no longer make it through to the full Complaints Panel.

If a purely voluntary code is the best way of regulating alcohol advertising in Australia, then it’s time for the Management Panel to amend the Code so that advertisers are required not to advertise in connection with content that appeals or is likely to appeal to young people.

Is the ABAC Management Panel just a club dominated by alcohol and advertising interests, or can they act in the public interest to protect children from alcohol advertising?

We’ll see.  This issue may have a while to run yet.

In the meantime, the Royal Australasian College of Physicians (RACP) and the Royal Australian and New Zealand College of Psychiatrists (RANZCP) has released a new alcohol policy which is strongly critical of Australia’s current regime for alcohol advertising regulation – including the ABAC Code.  The recommendations about alcohol advertising are worth quoting in full:

“Recommendations:
1. That the current self-regulatory approach to alcohol advertising in Australia and New Zealand should be changed to include statutory restrictions, including the enforcement of costly sanctions for breaches of the advertising code.
2. That the sponsorship of sporting events by the alcohol industry should be prohibited in Australia and New Zealand as a first step towards a model of alcohol advertising regulations which would phase out all alcohol promotions to young people.
3. That the Australia New Zealand Food Standards Code should be amended to introduce mandatory warning label requirements for alcoholic beverages, with specific guidelines on the placement, size, colour and text of the label so they are visible and recognisable; and a strict timeframe put in place for its comprehensive implementation.”

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Children with gender dysphoria and consent to treatment: time for a change in the law?

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Gender dysphoria is a condition where a person feels that their biological sex is deeply incongruent with their perceived gender, causing him or her significant distress. Stage 1 of treatment involves the administration of puberty-suppressant hormones. Stage 2 involves the administration of cross-sex hormones that promote the development of physical characteristics of the opposite sex.

Treatment for gender dysphoria has become an important topic within the law on consent to medical treatment, because the Family Court receives an increasing number of applications to authorize treatment for children with gender dysphoria. If you’re not familiar with this area, some background on children’s ability to consent to medical treatment is helpful before discussing these cases.

Consent to medical treatment: the role of parents and children

Marion’s Case remains the foundational case on minors’ ability to consent to medical treatment. This case dealt with the sterilization of a 16 year old woman with an intellectual disability, who was incapable of consenting to treatment. In this case the High Court held that a child can consent to medical treatment when he or she “achieves a sufficient understanding of and intelligence to enable him or her to understand fully what is proposed” (following the English case of Gillick v West Norfolk and Wisbech Area Health Authority).

If a child is not “Gillick competent,” then her parents can consent to medical treatment on her behalf. However, the High Court in Marion’s Case held that there are some forms of treatment (known as “special treatment”) that fall outside of parental authority and require court authorization.

Marion’s parents could not consent to her sterilization because it was “non-therapeutic” treatment, and because the procedure was irreversible, there was a significant risk of making the wrong decision (either about the child’s capacity to consent or as to what was in her best interests), and the consequences of a wrong decision were particularly grave.

Since Marion’s Case the courts have extended the category of “special treatment” to include other procedures. In doing so, they have categorized these procedures as “non-therapeutic” and applied the list of factors relied upon by the High Court in Marion’s Case.

Consent to treatment for childhood gender dysphoria

The Family Court originally held that treatment for gender dysphoria was a form of special treatment, and required court authorization for both stage 1 and stage 2 treatment. However, Re Jamie modified this position. In this case the court held that treatment for gender dysphoria was therapeutic and that parents could consent to stage 1 treatment. Children could consent to stage 2 if they were Gillick competent, but if they were not, then court authorization remained appropriate.

Relying on Marion’s Case, the Family Court also held that the court must determine whether the child is Gillick competent, as stage 2 treatment was irreversible, there was a significant risk of making the wrong decision, and the consequences of a wrong decision were particularly grave.

Re Martin: problems with the current position

The Family Court considered a case on treatment for gender dysphoria just before Christmas, Re Martin. The case did not change the Family Court’s position on treatment for gender dysphoria (being the judgment of a single judge), but Justice Bennett (who decided the case), offered an insightful critique of Re Jamie.

Martin (aged 16) was born a girl, but identified as male from a very young age, and had been diagnosed with gender dysphoria. Martin lived as a boy, but he experienced worsening depression as he approached puberty. Martin’s parents and treating physicians supported cross-sex hormone therapy and applied to the court for authorization.

In her Honour’s decision, Justice Bennett argued that the Family Court’s reliance on Marion’s Case in Re Jamie was contradictory and inconsistent. One of the grounds for this argument was as follows:

The Full Court in Re Jamie accepted that gender dysphoria is a recognized psychological condition and that treatment is “therapeutic.” However, the court decided that it still needed to authorize stage 2 treatment if the child was not Gillick competent (relying on the factors listed in Marion’s Case).

According to Marion’s Case, parents can consent to therapeutic treatment even if it has grave and permanent effects. However, the approach taken by the Family Court suggests that therapeutic treatment can still be classified as special treatment based on an assessment of the factors set out in Marion’s Case. Accordingly, court authorization will be required for some forms of therapeutic treatment.

Re Jamie seems like a case of wanting to have your cake and eat it too. The court respects children’s rights by allowing Gillick competent children to consent to stage 2 treatment. But the court seems uneasy about the idea of stage 2 treatment taking place without any form of court oversight, hence it retains a role in either confirming that a child is Gillick competent or in authorizing treatment where the child cannot consent on her own behalf.

This appears to strike a good balance between respecting children’s autonomy and recognizing their need for protection. But the court’s ruling is a significant departure from Marion’s Case, and it blurs the distinction between therapeutic and non-therapeutic treatment (although this distinction has always been problematic).

Time for a change in the law?

As pointed out by Justice Bennett in Re Martin, there are good practical reasons for not requiring court authorization of treatment for gender dysphoria. In uncontroversial cases (which they almost always are), the court will simply follow the doctors’ advice, and it is difficult to see what advantages are added by court involvement.

Court proceedings have significant emotional and financial costs for children and their parents. Some children may forego treatment because their families cannot afford to make a court application. On the other hand, this is a complex area of medical practice, and stage 2 treatment can have profound and irreversible effects on children’s social and sexual identity.

Justice Bennett concluded Re Martin by finding that Martin was Gillick competent, but her Honour also invited the court (or parliament) to change the law. This seems sorely needed – both to clarify the position on “special treatment,” and to facilitate access to treatment for children for gender dysphoria. On balance, the costs of court authorization outweigh any possible benefits, suggesting that court oversight in undisputed cases is not in the best interests of children with gender dysphoria.

WHO Commission on Ending Childhood Obesity presents final report and recommendations

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The World Health Organisation’s Commission on Ending Childhood Obesity, appointed by WHO Director-General Dr Margaret Chan in 2014, has now formally presented its final report.

The Commission was co-chaired by Sir Peter Gluckman, the Chief Science Advisor to the Prime Minister of New Zealand, and Dr Sania Nishtar, the founder and President of Heartfile, a health policy think tank based in Pakistan.

The Commission held hearings in all 6 WHO regions, and was supported by two technical working groups: the Ad Hoc WG on Science and Evidence, and the Ad Hoc WG on Implementation, Monitoring and Accountability.

In 2014, an estimated 41 million children under 5 years of age were either overweight or obese (this is defined as the proportion of children whose weight for height scores are more than 2 standard deviations, or more than 3 standard deviations, respectively, from the WHO growth standard median).

The Commission’s strategic approach rests on three categories of interventions:

  • interventions to tackle the obesogenic environment in order to improve the healthy eating and physical activity behaviours of children;
  • interventions targeting critical stages of the lifecourse; ie (i) preconception and pregnancy; (ii) infancy and early childhood; and (iii) older childhood and adolescence;
  • interventions to treat obese children in order to improve their current and future health.

A number of the Commission’s recommendations addressing the obesogenic environment, and critical stages of the lifecourse, in particular, confirm the role for law and regulation in improving the food and physical activity environment for children.

In a move sure to thrill the fizzy drinks industry, the Commission has called on countries to implement an effective tax on sugar-sweetened beverages, and noted that some countries may also consider a tax on foods high in fats or sugar.

Noting “unequivocal evidence that the marketing of unhealthy foods and sugar-sweetened beverages is related to childhood obesity”, the Commission has called on countries to implement the WHO’s Set of Recommendations on the Marketing of Foods and Non-alcoholic Beverages to Children.   It has also called for cooperation between Member States of the World Health Assembly to reduce the impact of cross-border marketing of unhealthy foods and beverages.

The Commission has called for a standardised global nutrient labelling system, as well as the implementation of interpretive front-of-pack nutritional labelling supported by public education to improve nutritional literacy.  Interpretive food labelling has consistently been a highly contested area of food law and policy.  For example, the European Food Industry reportedly spent 1 billion euro to ensure that front-of-pack traffic light labeling did not become a Europe-wide standard.  Traffic light labels interpret the quality of the nutrition of food by means of highly visible red, amber and green symbols that correspond to the amount of saturated fat, salt and added sugar in the product.

The Commission’s recommendation that schools, child-care settings and children’s sports facilities should be required to create healthy food environments may also require legislation or regulations for successful implementation in some countries.  The Commission has also specifically recommended that countries eliminate the sale or provision of unhealthy foods, such as sugar-sweetened beverages and energy-dense, nutrient-poor foods, in schools.

In the United States, the federal government subsidises the provision of breakfasts and lunches served at school to children from low-income families.  This has enabled the US Department of Agriculture to issue regulations  requiring schools that participate in the national school lunch and breakfast program to improve the nutritional quality of the foods that are served.   However, these standards have faced relentless opposition from the junk food industry and from Congress.  Mandatory standards to improve the nutritional quality of school food have been introduced in a number of jurisdictions, including England and Scotland.

Other recommendations that may require legislative or executive action include the enforcement of the International Code of Marketing of Breast-milk Substitutes and subsequent resolutions of the World Health Assembly (WHA).

The Commission’s report will be presented to the members of the WHA in May 2016, where further actions may be taken to support the implementation of the Commission’s recommendations.

Those with an interest in obesity should also keep an eye out for the report of the Lancet Commission on Obesity, co-chaired by Professor Boyd Swinburn (University of Auckland), and Professor Bill Dietz (George Washington University).  In this paper, Professors Swinburn and Dietz outline the work of their Commission.