Regulation of alcohol advertising is failing Australia’s young people: new research on the ABAC Code

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Exposure to alcohol advertising influences the likelihood that young people will begin drinking, that those already drinking will increase their intake, or engage in risky drinking. Accordingly, the World Health Organization calls for regulation that reduces the impact of alcohol marketing on young people, including by addressing the content and volume of marketing, as well as sponsorship activities that promote alcoholic beverages. The WHO also recommends developing effective administrative and deterrence systems for infringements of marketing restrictions.

The main source of alcohol marketing regulation in Australia is the ABAC Responsible Alcohol Marketing Code, an industry-based code containing a series of standards on responsible alcohol advertising. These include a prohibition on advertising that has strong or evident appeal to minors, as well as new rules that aim to prevent alcohol ads from being directed to minors. These rules require advertisers to use age restriction controls where available, place marketing only in media with an audience of at least 75% adults, and ensure that marketing is not placed in programs or other media content designed for children (based on its story line, themes, music, and so forth).

The ABAC Scheme is administered by a Management Committee which includes four representatives from alcohol and advertising industry bodies, as well as a government representative and an independent chair. Public complaints can be made to the ABAC Adjudication Panel, comprising a chief adjudicator with legal expertise, a public health representative, and a broadcasting industry representative.

My study examined whether the ABAC Scheme contained the components of an effective regulatory scheme, focusing specifically on the rules concerned with minors. In other words,  did the ABAC follow the WHO’s recommendations for reducing the impact of alcohol marketing on minors?

I found that there were significant gaps and limitations in the ABAC, both in its substantive rules and in the processes of administration, monitoring, and enforcement created by the code.

These gaps include the exclusion of some media channels and promotional techniques such as cinema advertising and more importantly, sponsorship arrangements.  This second loophole is compounded by the fact that the Free TV Code (which regulates the broadcast of alcohol ads on TV), allows alcohol ads to be broadcast during a sports program on a weekend or public holiday, or during a live sports event at any time – including, for example, during a Sunday morning sports event on TV.

It’s a positive step that the ABAC now contains restrictions on the placement of ads in media directed to children, but these restrictions are unlikely to reduce young people’s exposure to alcohol ads. This conclusion is supported by another recent study by Hannah Pierce and colleagues, which found that the ABAC’s age gating requirements and voluntary audience thresholds are ineffective in reducing alcohol marketing in times and places where young people are likely to be exposed.

Age gating on websites might stop young people from following the Instagram accounts of alcohol companies, for example, but it won’t stop them from seeing material that’s reposted or shared, or from interacting with digital content in other ways.

Another concern is the narrow definition of program and other media content that is “primarily aimed at minors.” Recent determinations from the ABAC Adjudication Panel suggest it interprets this phrase to mean content that appeals exclusively to minors, so that content appealing to both children and adults won’t be included – as with the superhero film Thor: Ragnarok. Pierce reports that the Panel dismissed a complaint about a whisky ad screened before this movie, because while the movie had broad appeal to adolescents, it was not primarily aimed at them.

Along with the loopholes in the substantive rules contained in the ABAC, the Scheme’s governance processes lack independence and public accountability. Although there’s some government oversight, the administration of the scheme is largely industry based, and there’s no independent monitoring of compliance with the ABAC, or external review of the Scheme’s operation. There are also few meaningful penalties available for ads that breach the ABAC. The Panel can order the removal or modification of an ad, but has no way of enforcing its rulings, or escalating to more serious penalties.

Given the serious limitations that remain in the ABAC – despite numerous government reviews and refinements over its 20-year history – it’s time for stronger government intervention. At the very least, the Federal Government could act to close off loopholes on cinema advertising and sponsorship, as well as introducing a comprehensive ban on all alcohol marketing within 150 metres of schools, childcare centres and playgrounds. The ABAC Scheme would also be improved if it was administered by an independent body with a broad range of enforcement options and no vested interest in showing that the Scheme is effective in protecting young people from alcohol marketing. In short, it’s time for a regulatory approach that prioritizes young people’s well-being over industry profits, and truly accords with good regulatory practice.

Manslaughter by gross negligence, or systemic failure? Implications of the Dr Hadiza Bawa-Barba case for Australia

Sydney Law School and the Menzies Centre for Health Policy at the University of Sydney are co-hosting an evening seminar entitled “Manslaughter by gross negligence, or systemic failure?  Implications of the Dr Hadiza Bawa-Garba case for Australia”.

This event will be held at the Law School on Thurs 8 November, 6.00-7.30pm.  You can register here.

The event features Professor Ian Freckelton QC as the keynote speaker, with responses from a panel including Dr Penny Browne, Chief Medical Officer, Avant Mutual, Dr Andrew McDonald, Associate Professor in Paediatrics, Western Sydney University School of Medicine and former shadow Health Minister and Jane Butler, Senior Associate at Catherine Henry Lawyers.

You can find out more about the event here.

Background to the Dr Bawa-Garba case

On Friday morning, 18 February 2011, six-year-old Jack Alcock was admitted to the Leicester Royal Infirmary Hospital in England in a limp and unresponsive state, following 12 hours of vomiting and diarrhoea.

By 9.20pm that night he was dead, due to sepsis and organ failure arising from pneumonia, which remained undiagnosed during the day.  Dr Hadiza Bawa-Garba was the doctor on duty in the Children’s Assessment Unit at the hospital, where Jack remained for most of the day.

On 4 November 2015, Dr Bawa-Garba was found guilty of manslaughter by gross negligence.  Her conviction sparked scrutiny and criticism from doctors around the world.

Following her conviction, the Medical Practitioners Tribunal Service suspended Dr Bawa-Garba from practice for 12 months, but decided against striking her from the medical register.  The UK General Medical Council appealed this decision to the High Court, which removed her from the register in January 2018.  On appeal, the Court of Appeal restored the decision of the Tribunal, re-instating the suspension of Dr Bawa-Garba for 12 months, subject to review.

On the day of the tragedy, Dr Bawa-Garba was covering the Children’s Assessment Unit because she had volunteered to fill in for a colleague who was absent.  She worked a double shift, without any breaks, also covering cases in the general paediatrics ward, and the Emergency Department.

In a letter of support for Dr Bawa-Garba, 159 pediatricians condemned the punitive approach taken against one doctor “against a background of numerous systemic failures”, adding that they would be confident to employ Dr Bawa-Garba upon her re-instatement to the medical register.

In this seminar, Professor Ian Freckelton QC will review the Bawa-Garba case and consider its implications for medical practice in Australia.  Was Dr Bawa-Garba treated unfairly, and how should the Medical Board of Australia (and in NSW, the NSW Medical Council) and other professional bodies respond in such cases?  How should community expectations be met in tragic cases like this one?  Are there solutions to the staffing challenges that place unreasonable demands on medical practitioners?

Are you interested in studying health law?

Sydney Law School offers a Master of Health Law (MHL) and Graduate Diploma in Health Law that includes units of study in medical law, public health law, mental health law and global health law and governance. It is open to both legally qualified candidates as well as those without a law degree. For more information, click on the following links: Master of Health Law; Units of study on offer in 2019; About health law study.

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

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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

First, protect the child, then worry about the penitent sinner: South Australia’s new mandatory reporting legislation

South Australia is on a collision course with the Catholic Church hierarchy following passage of the Children and Young People (Safety) Act 2017.

Chapter 5, Part 1 (ss 30-31), deals with reporting of suspicion that a child or young person may be at risk.  These sections come into effect on 22 October 2018, and impose a duty on ministers of religion, including priests, to report suspicions of child abuse, irrespective of whether that information was obtained during a confession.

Under the Children’s Protection Act 1993 (SA), which currently applies, ministers of religion and employees and volunteers in religious organisations owe a duty to notify suspicions of abuse or neglect: s 11(2).

However, a priest or minister of religion is given a specific exemption from divulging “information communicated in the course of a confession made in accordance with the rules and usages of the relevant religion”: s 11(4).

That changes in October.

Section 31 of the new Act requires health and welfare professionals and ministers of religion to report the suspicion that a child or young person is “at risk”.  There are no exemptions for information disclosed during a confession.

Priests are not singled out in the new legislation.  Section 30 applies to ministers of religion and employees or volunteers of organisations formed for religious or spiritual purposes.  The obligation also applies to medical practitioners, dentists, nurses, psychologists, pharmacists, police officers, community correction officers, social workers, teachers, and employees or volunteers for organisations that provide health, welfare, education, sporting, recreational child care or residential services for children.

Concept of “at risk”

Section 31 requires health and welfare professionals and ministers of religion to report the suspicion that a child or young person is “at risk”.

The concept “of risk” is defined in section 18: it includes circumstances where a child has suffered harm or is likely to suffer harm of a kind from which a child or young person is ordinarily protected.  This includes sexual assaults and related criminal offences.

The concept of “at risk” also includes a suspicion that a child is to be removed from the state for the purposes of undergoing female genital mutilation.

Section 31(3) states that a health or welfare professional may – but is not required – to report when they suspect on reasonable grounds the physical or psychological development of an unborn child is at risk, whether because of the pregnant woman’s behaviour or otherwise.

“Course of employment”

The obligation to report under s 31 arises when a health or welfare professional has a suspicion on reasonable grounds that arises in the course of their employment.

The concept of “employment” is defined broadly to include an employee, independent contractor, volunteer, as well as someone who “carries out work as a minister of religion or as part of the duties of a religious or spiritual vocation”.

Priests to defy new law

Debate about South Australia’s new mandatory reporting requirements takes place against the background of the conviction of Adelaide’s Archbishop Philip Wilson for concealing a serious indictable offence by failing to report credible allegations of sexual abuse of two altar boys by a paedophile priest.

This information did not come to Archbishop Wilson in the confessional and Catholic doctrine did not preclude him acting on it.

The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that any minister of religion convicted of a crime relating to child sexual abuse should “in the case of Catholic priests and religious [orders], be dismissed from the priesthood and/or dispensed from his or her vows” (16.56.a).

Archbishop Wilson was sentenced to 12 months imprisonment, but has said he will appeal the conviction.  In the meantime, he has refused to resign, indicating, however, that he would resign if the conviction was upheld.

Meanwhile, Acting Archbishop Greg O’Kelly has confirmed that priests are bound by church doctrines and that the new law “doesn’t affect us”.

Appraisal

The fact that a minority of priests have committed sexual offences against children, and that other senior Catholic clergy have failed to act on knowledge of such offences does not mean that sexual predators regularly or even occasionally confess to sexual offences during confession.  The two issues are distinct.

However, even if information about the abuse of a child reaches a priest during a confession only rarely, what does the Catholic church’s rule about absolute secrecy say about its sense of right and wrong?

The very position that such information should remain absolutely confidential if conveyed during the Sacrament of Reconciliation suggests that it is more important to encourage the penitent sinner to seek absolution than to protect the child.

You’d have to be a priest, as distinct from a parent, to follow the logic or the morality of that.

I’m a parent, and I’ll tell you what every other parent will tell you: the over-riding moral priority is to protect your child.

Protect the child.  That’s more important than swearing secrecy to someone who reveals that they are a sexual predator.  What’s not to understand?

In fact, how does someone – acutely sensitised to the rightness and wrongness of things – get to a place where they don’t understand this?

Do penitent sexual offenders never re-offend?

If the person who confesses is truly penitent, surely they would not want the child they harmed to be isolated from services to help them recover from their trauma?

The confessional should not enable further wrong-doing.

It this case it’s secular morality, and the South Australian Parliament, that is leading the way.

Trump: the war on breastfeeding

The New York Times reports that US officials threatened to unleash trade sanctions and withdraw military aid from Ecuador unless it withdraw a resolution at May’s World Health Assembly calling on governments to “protect, promote and support breast-feeding”.

The article is worth reading in its entirety.

As the father of a currently breastfeeding infant, I find this kind of behaviour utterly repellent.

There are echoes of Right to Health language (respect, protect, fulfil) in the resolution which might have displeased the Americans, but the real motivator was American support for large corporate manufacturers of breast-milk substitutes.

(Like Chicago-based Abbott Laboratories.)

Ecuador backed off from the offending resolution, as did “at least a dozen other countries, most of them poor nations in Africa and Latin America”.

Then Russia stepped in, and the intimidation apparently stopped.

“We’re not trying to be a hero here”, said a Russian delegate to the World Health Assembly, “but we feel that it is wrong when a big country tries to push around some very small countries, especially on an issue that is really important for the rest of the world.”

Plenty of ironies here.  But they have a point.

According to the New York Times report, a Department of Health and Human Services spokesperson said: “The resolution as originally drafted placed unnecessary hurdles for mothers seeking to provide nutrition to their children.  We recognize not all women are able to breast-feed for a variety of reasons. These women should have the choice and access to alternatives for the health of their babies, and not be stigmatized for the ways in which they are able to do so.”

Well gosh, that ought to sort out the doubters.

The Lancet reports that scaling up breast-feeding to near universal levels could avoid 823,000 deaths of children under 5 each year, and 20,000 maternal deaths from breast cancer.

Breastfeeding protects both mother and child, and it’s free, which is important if you’re poor.

Yet for billion dollar formula companies, the temptation to monetise the act of feeding by targeting young mothers, is just irresistible.

Read the Guardian’s investigation into Nestle’s marketing practices flogging formula to poor women in central Manila here.  Then weep.

Here is the resolution that eventually passed in the World Health Assembly, with American support.

Amongst other things, it requests the WHO Director-General to provide, upon request, “technical support to Member States to establish, review and implement national laws, policies and programmes to support infant and young child feeding”.

However, US hostility scuttled language that would have called on WHO to provide “technical support to member states seeking to halt “inappropriate promotion of foods for infants and young children.”

“Inappropriate” in this context would refer to the promotion of foods in contravention of the International Code of Conduct of Breast-milk Substitutes.

The Code prohibits the advertising of infant formula and other breast-milk substitutes to the general public, to pregnant women and mothers, and to health workers who are concerned with infant and maternal nutrition.  It also prohibits the giving of samples and other incentives for purchase. Governments are urged to implement the Code through national legislation, regulations or other suitable measures.

In addition, the Code states that infant formula should contain a clear statement of the superiority of breastfeeding, and a statement that the product should only be used following advice from a health worker. The container and labels should not contain pictures of infants, or include pictures or text that “may idealize the use of infant formula”.

Appropriately, the resolution does urge Member States (of the World Health Organisation) to strengthen national initiatives to implement the Code.

However, when you put it all together, it appears the Trump administration does not want sovereign countries receiving technical support from WHO about how best to frame their laws and policies to prevent predatory marketing practices that breach the Code.

It’s the Trump administration’s war on breastfeeding women.

Click here for information about the Australian Breastfeeding Association.

ANNOUNCEMENT: Sydney Law School and the United States Studies Centre at the University of Sydney are co-hosting an evening seminar entitled “Public health law and health leadership in the United States: What can Australia learn?” on 19 July 2018, 6.00-7.30pmClick here for the brochure and further details.  A separate post will follow about this event.

If you’re interested to learn more about law and non-communicable diseases, Sydney Law School is offering a Masters unit, “Law, Business & Healthy Lifestyles” in the coming semester.  Click here for more information.

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

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Laws in many countries prohibit false and misleading advertising. The recent case of ACCC v Heinz (which I discussed in a blog post last week) shows how these laws can knock out false and misleading food advertisements. But what about the perfectly legal promotions for unhealthy foods and beverages that fill our TV screens, social media platforms, billboards, and bus shelters?

In some countries, governments are moving to reduce children’s exposure to unhealthy food marketing by placing legislative restrictions on when and where unhealthy food products can be marketed. For example, Chile has banned unhealthy food advertisements on TV before 10pm, along with a range of other obesity-prevention measures.

In countries like the US, Australia, and NZ, restrictions on unhealthy food marketing are found in self-regulatory codes developed by the food or advertising industries. However, these codes often contain significant loopholes and do little to reduce children’s exposure to unhealthy food marketing. This is illustrated by two complaints recently determined by New Zealand’s Advertising Standards Complaints Board.

The Complaints Board hears public complaints about breaches of the Children and Young People’s Advertising Code, developed by an advertising industry body. Following a recent review, the Code now contains a series of principles and rules on the marketing of “occasional food and beverage products” to children and young people. These products are identified using a Ministry of Health nutrient profiling system that distinguishes between “everyday”, “sometimes”, and “occasional” foods. The Code also distinguishes between children (aged under 14 years) and young people (aged 14-17 years).

Principle 1 of the Code states that “[a]dvertisements targeted at children or young people must not contain anything that is likely to result in their physical, mental or moral harm and must observe a high standard of social responsibility.” Among the rules listed under this principle are (1)(i), which states that “[a]dvertisements (including sponsorship advertisements) for occasional food or beverage products must not target children or be placed in any media where children are likely to be a significant proportion of the expected average audience.”

Under rule 1(j) advertisers must exercise a special duty of care in advertising occasional food and beverage products to young people (as opposed to children).

The Code uses three criteria to determine whether an ad targets children or young people: (1) whether the nature and intended purpose of the advertised product or service is principally or generally appealing to children/young people; (2) whether the presentation of the advertisement content (e.g., theme, images, colours, wording) is appealing to children/young people; and (3) whether the expected average audience at the time or place the advertisement appears includes a significant proportion of children/young people. Measures for determining the likely child audience of an advertisement include whether a medium’s audience comprises 25% or more children; whether the medium appears in child viewing time zones; whether a medium contains content with significant appeal to children; and whether an ad appears in locations where children gather, e.g., schools and playgrounds.

Principle 3 of the Code states that “[a] special duty of care must be exercised for Occasional Food and Beverage Product sponsorship advertising targeted to young people.” The rules under this principle include 3(a), which prevents sponsorship advertising from depicting an occasional food or beverage product, such product’s packaging, or consumption of such products.

Healthy Together Auckland has laid a series of complaints that aim to test the Code’s rules on unhealthy food marketing.

One recent complaint concerned an advertisement on a bus shelter in close proximity to a primary school and a secondary school, and to shops where a large number of children and young people stopped on their way to and from school. The advertisement (pictured above) featured Santa Clause riding in a car holding two bottles of Coke, one a no-sugar version of the product, and the other a “classic” or “full sugar” version. It included the logos for Youthline (a help line for young people) and Coca-Cola, and text encouraging donations to Youthline.

The Board upheld the complaint that the ad was a sponsorship advertisement for an occasional beverage that targeted children and young people.

In considering whether the ad targeted children and young people, the Board held that full-sugar Coke was a product that appealed to children and young people and was an occasional beverage. In relation to the content of the ad, the Board said that Youthline would not have strong appeal to children, but would with young people – Youthline’s target audience. Crucially, Santa Claus was the most prominent image in the ad, and has strong appeal with children and is closely associated with Christmas, and children asking Santa for presents, all of which would encourage children to engage with the ad. According to the Board, while Santa has less appeal for young people, his particular presentation in this ad (e.g., riding in a car) would appeal to the 14-17 year age group.

The Board held that children under the age of 14 years were unlikely to be a significant proportion of the ad’s audience (given the bus shelter’s distance from the primary school), but it would be seen by a significant proportion of young people, as it was close to the secondary school, and young people caught the bus from the stop that the ad appeared at and would gather at near-by shops.

Accordingly, the Board held that the ad breached Principle 1 and rule 1(i) of the Code by promoting an occasional beverage to children, as well as Principle 3 and rule 3(a), but note rule 1(j) (on exercising special care in unhealthy food marketing to young people) or another rule on the responsible use of characters that are popular with children (1(h)).

While this first complaint was upheld in part, a second complaint, related to Coca-Cola Christmas in the Park events held in Auckland and Christchurch, was dismissed by the Board.

The complaint concerned the events themselves, as well as event promotions that appeared on bus shelters, in newspapers and on news websites, and included fireworks, people dancing on a stage, and the messaging, “Coca-Cola Christmas in the Park. Supporting Youthline. Merry Christmas from Coca-Cola. Come share the magic.” The complainant was also concerned that hundreds of free Coke drinks were given away to children at the events, who made up a large percentage of the audience.

The Board held that it did not have the jurisdiction to consider the event itself or the product give-aways at the event. This was because the events did not constitute “advertising” for the purposes of the Code: they were a “community initiative”, of which Coke was one of many sponsors, and the event’s intended purpose was entertainment rather than influencing the choice, opinion or behaviour of consumers to purchase the product, as required by the Code’s definition of advertising.

Promotions for the events could be defined as sponsorship advertisements, meaning that they fell within the scope of the Code. However, there were no images of Coke products in the advertisement, and while the ad did include the Coke logo, the focus of the ad was on promoting the events rather than persuading views to purchase Coke. Accordingly, the ads did not promote an occasional food or beverage.

The creative content of the ads would have appeal to children and young people, as would Christmas in the Park, Youthline and the Coca-Cola Company Brand. However, the Board held that the placement of the ads was directed to parents, as children would not comprise 25% of more of the readers or viewers of the media that the ads appeared in (e.g., the New Zealand Herald), and on balance, it was unlikely that the ads would be seen by a significant proportion of children.

As the ads did not promote an occasional food or beverage product and were not targeted to children, the Board determined that the ads did not breach any of the Code’s principles and rules on food marketing to children and young people.

The New Zealand Code contains rules that are stronger in some respects than similar rules found in codes in other jurisdictions, including the two codes developed by the food industry  in Australia. For example, the New Zealand Code restricts unhealthy food marketing in settings where children gather (including around shops or bus shelters, as illustrated by the first complaint). Equivalent restrictions in the Australian codes only apply to pre-schools, primary schools and daycare centres.  However, these complaints illustrate that the New Zealand Code still contains a number of key loopholes that are common to regulation on food marketing to children in other jurisdictions.

The first of these is the need to identify advertising that is targeted to or appeals to children, as distinct from families or parents. While the Code contain a relatively strong definition of advertising that is targeted to children, it can still allows advertisers to use creative content that children find appealing. Coke asserts that it doesn’t market its products to children under 12, and claims that the association of Coke with Christmas and Santa is aimed at families rather than children. This ignores the fact that, as the Complaints Board has pointed out, Santa and Christmas have significant appeal to children, and marketing using this imagery is likely to be attractive and persuasive to children, regardless of the target audience. However, in the second complaint the Board held that Coke’s ads were not targeted to children as they appeared in media with large adult or family audiences, despite using imagery that appealed to children. In short, Coke respects the letter but ignores the spirit of its own self-imposed restriction – and in this instance, the Code permitted it to do so.

The second problem is that the NZ code (and other self-regulatory codes) continue to exclude some marketing techniques commonly used by food companies. As illustrated by the second complaint, these include brand advertising, where companies promote a particular brand, but not the products associated with that brand, which may be unhealthy. By imposing restrictions on the types of products advertised to children, the Code allows companies like Coke to circumvent restrictions by marketing only the Coca-Cola brand without featuring images of the product itself.

A third problem is that these codes are based on a single advertisement model. The Board may uphold a complaint about one advertisement, but its determination doesn’t necessarily address a sophisticated, widespread campaign that promotes a product across a number of different platforms. Further, a complaints-based system only puts a tiny dent in children and young people’s cumulative, on-going exposure to a large volume of unhealthy food marketing.

This last issue is partly due to deficiencies in the governance processes attached to self-regulatory codes, in addition to loopholes in their substantive terms and conditions. Frequently, there are no sanctions for non-compliance, nor is there any kind of systematic, independent monitoring of compliance, meaning that it’s up to advocacy groups to identify problematic ads and report them to complaint bodies.

We have legislative restrictions on false and misleading food advertising. Given the problems with self-regulatory codes on unhealthy food marketing to children, perhaps it’s time for legislation on that issue too.

 

ACCC v Heinz: A significant win for public health

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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