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

coke bus shelter

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Excluding bottled water, only 1.3% of food and beverage advertising across the Sydney train network is consistent with a healthy diet

New research from the Boden Institute of Obesity, Nutrition, Exercise & Eating Disorders at the University of Sydney, and Sydney Law School, has investigated the quality of nutrition of food and beverage advertising on every station of Sydney’s metropolitan train network.

Judged by revenues, outdoor advertising of food, on billboards and other advertising spaces, is on the rise.

Sydney Trains generated over $12 million in advertising revenue in the 2013-14 financial year, and this was expected to increase to at least $100 million over the subsequent 5 years.

A research team, led by Emma Sainsbury, collected data in February (summer) and July (winter) of 2016, photographing a total of 6931 advertisements across the 178 stations in the network.

Each advertisement was coded as core (a healthy food or beverage recommended for daily consumption), or discretionary (high fat, sugar and/or salty food not recommended for daily consumption), based on the Australian Guide to Healthy Eating.

The results tell you what you probably already know: Sydney train stations are a great place to advertise junk food and beverages.

Just over a quarter of total advertisements (1915/6931, or 27.6%) promoted food and beverages.

Of the food and beverage advertisements, 84.3% were for discretionary foods/beverages, 8% were for core foods/beverages, and the remainder (7.6%) were miscellaneous advertisements, mostly brand-only advertisements that did not mention specific products.

Significantly, the core foods/beverages category consisted mostly of bottled water vending machines (74.4%), and billboard advertisements for bottled water (11%).  When advertisements for bottled water were excluded, only 1.3% of food and beverage advertising on the Sydney train network was for core foods.

The most commonly advertised discretionary products were potato chips (25%), sugar-sweetened beverages (23%, mostly flavoured milks and soft drinks), and intense or artificially-sweetened beverages (18.7%).

Despite food advertisements comprising just over a quarter of all advertisements, Coca-Cola and PepsiCo (which includes PepsiCo beverages and The Smith’s Snackfood Company) were the largest advertisers overall, contributing 10.9% and 6.5% of total advertising across the network.

Advertisements for alcohol made up over 6% of food and beverage advertising, and about 2% of total advertising.

There is obviously a total disconnect between foods and beverages advertised on Sydney trains and the kinds of foods and drinks that make up a healthy diet.

What do advertisers have against healthy food and beverages, I wonder?

A large number of self-regulatory initiatives ostensibly regulate food and beverage advertising in Australia.

However, these have failed to achieve a healthy food advertising environment, probably by design.

The results of this study support the case for government to pressure industry to shift the mix of food and beverage advertising towards products that are more consistent with a healthy diet.

The paper reviews some of the regulatory approaches that might be used, from outright bans, to interim and longer-term targets for reductions in the overall volume of unhealthy food advertising, based on a credible nutrient profiling system that evaluates the quality of nutrition of the product.

Restrictions on the volume of particular kinds of advertising, as a percentage of total advertising, do exist in other jurisdictions.

In Ireland, for example, the General Commercial Communications Code limits the volume of television advertising of foods high in fat, salt or sugar, to a maximum of 25% of sold advertising time across the broadcast day (para 16.10).

However, much of the impetus for constraints on unhealthy food advertising arises from the belief that children are particularly vulnerable and deserve to be protected.  Unlike, say, television programs that are made specifically for children, the train network is used by substantial numbers of both adults and children.

Another approach could be to significantly increase the proportion of train station advertising allocated to the promotion of healthy, core foods and beverages, perhaps through higher pricing strategies for advertising of junk foods and sugary drinks.

The food, beverage and advertising industries ought to be taking the lead here, but how likely is that?!

The prevailing ideology, shared by the food and beverage industries, their allies and lobbies, is that you get the health you deserve.

If you can beat temptation and eat a healthy diet, you deserve to be healthy.

But if you eat a poor diet, if you routinely consume the diet that is overwhelmingly advertised, then you get what’s coming to you.

That’s personal responsibility.

It’s great for business (there’s great margins on nutritionally poor foods), but not great for the health budget, nor for individuals and families.

Maybe that’s why the food and beverage industry needs round-the-clock lobbyists in Canberra to explain to politicians and the rest of us how the world works.

Because otherwise someone might start asking crazy questions…like…Why shouldn’t the mix of advertising across the Sydney train netework be better aligned with a healthy diet?

The paper can be downloaded free of charge here.

Does Coca Cola have a role in delivering Pacific aid?

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Posted by Roger Magnusson and Alexandra Jones

The Foreign Minister, The Hon. Julie Bishop MP has announced that Australia will partner with companies like Coca-Cola to distribute essential medicines to Pacific Island recipients of Australian aid.

The Minister is right about one thing: tobacco and fizzy drink companies have strong distribution networks that reach into the remotest parts of low income countries around the world.  And they would welcome the legitimacy that comes from “being part of the solution” – from “helping to save lives”.

But conflict of interest looms large.  In some islands of the Pacific, more than a third of the population have diabetes (See the table at the bottom of this post, drawn from a recent paper on non-communicable diseases (NCDs) in the Pacific.  The table is worth reproducing in full, since it illustrates just how bad everything is). Combined rates of overweight and obesity among men and women in some Pacific island recipients of Australian aid reach or exceed 80%.  In some countries obesity rates alone exceed 45% (in Tonga, the rate of obesity in men and women > 20 years is 59.5%).  Do these countries really need Coca Cola?

There might well be novel ways of partnering with the private sector to improve aid performance.  Results matter: the Minister is absolutely correct on this point.  But this applies at home as well.  For example, under-performing public health initiatives such as the stalled Food and Health Dialogue – which was supposed to deliver a healthier food supply with less salt and saturated fat – also need to be overhauled.  (A recent paper by Roger Magnusson and Belinda Reeve illustrates how “regulatory scaffolding” could be used by government to strengthen the performance of this vital initiative while minimising the need for direct, statutory regulation).

In Pacific Island Countries and Territories, partnering with the multinationals that are driving risk factors for obesity and diabetes makes no sense.  Australian Aid wouldn’t partner with a tobacco company like Philip Morris, so why partner with a fizzy drink company selling empty calories to some of the most obese and diabetic countries in the world?

Unlike, say, Unilever, which can diversify into healthier products and create healthier brands, Coca Cola and Pepsico have a real problem: their leading brands are soft drinks.  It would be economic suicide to sacrifice the full-sugar variants, and yet this colours every positive contribution they might otherwise seek to make to development or public health.  People who want to move towards a healthier weight – not to mention better dental health – need less soda, not more, and yet reducing consumption is bad for profits.  Suffice it to say that Coca Cola would surely be delighted at the prospect of becoming integrated into the public health infrastructure in these fragile island states.

It’s worth asking: just how did Coca Cola get inside the Minister’s head?  Why is its name bobbing up now?

At the Joint Forum Economic and Pacific Health Ministers Meeting in Honiara in July 2014, Economic and Health Ministers from Pacific Island Forum countries agreed that non-communicable diseases (NCDs) are ‘financially unsustainable’.  They committed to develop country-specific roadmaps covering the following five priorities (Joint Economic Forum and Pacific Health Ministers Meeting 2014). These priorities are:

    • Strengthening tobacco control;
    • Considering an increase in taxation of alcohol products;
    • Reducing consumption of unhealthy food and drink;
    • Improving efficiency of existing health expenditure; and
    • Strengthening the evidence base to ensure optimal use of resources.

These commitments take place against the background of the World Health Organisation’s Western Pacific Regional Action Plan on NCDs  and the World Bank’s NCD Roadmap Report.  Both documents identify “best buys” and other policy priorities that countries should adopt in order to reduce death and disease from NCDs.

Let’s be honest here: the commitments of Joint Economic Forum and Pacific Health Ministers are not only a business risk to Coca Cola, but to tobacco multinationals and other junk food and beverage companies that operate in the region.  Other risks loom on the horizon.  For example, the World Health Organisation has established a Commission on Ending Childhood Obesity, which has already released an interim report which identifies a number of policy options for reducing intake of unhealthy foods and non-alcoholic beverages by children.  The Commission is holding a hearing in Auckland for the Western Pacific Region within the next few weeks.

Is Coca Cola really part of the solution?  If you have any lingering doubts, just ask a dentist.

Readers may also be interested in a recent paper by Jenny Kaldor and Roger Magnusson (from Sydney Law School) and from Stephen Colagiuri (from the University’s Boden Institute of Obesity, Nutrition Exercise, a WHO Collaborating Centre) on how law and regulation could contribute to efforts to wind back Australia’s epidemic of diabetes.

Selected risk factors for non-communicable diseases in Pacific Island Countries and Territories, compared to Australia 

Obesity rates % (2013)a
Country Men>20 years Women >20 years Men & women >20 years
Kiribati 39 56 47.5
Samoa 46 69 57.5
Tonga 52 67 59.5
Australia 28 30 29
Smoking prevalence % (2011)b,c
Country Men >15 years Women >15 years Men & women> 20 years
Kiribati 67 37 52
Papua New Guinea 55 27 41
Solomon Islands 45 18 32
Tonga 43 12 28
Australiad   18 14 16
Diabetes prevalence % (2013)e,f
Country Total adult population
Cook Islands 26
Federated State of Micronesia 35
French Polynesia 22
Kiribati 29
Marshall Islands 35
Nauru 23
Tokelau 38
Vanuatu 24
Australiag 4

a Statistics sourced from Ng M, Fleming T, Robinson M, et al (2014) Global, Regional and National Prevalence of Overweight and Obesity in Children and Adults During 1980-2013: A Systematic Analysis for the Global Burden of Disease Study 2013. Lancet 384, 766-781.

b Statistics sourced from World Bank (n.d.) World Development Indicators: Health Risk Factors, viewed December 2014 <http://datatopics.worldbank.org/hnp/HNPDash.aspx&gt;.

c Statistics for Australia sourced from Australian Bureau of Statistics (ABS) (2012) Australia’s Health Survey: First Results, 2011-2012, Tobacco Smoking. 4364.0.55.001, 29 October 2012, viewed December 2014  <http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/73963BA1EA6D6221CA257AA30014BE3E?opendocument&gt;.

d Australian data are for daily smoking rates among adults aged >18 years, for 2011-2012.

e Statistics sourced from Chan J, Cho N, Tajima N, Shaw J (2014) Diabetes in the Western Pacific Region – Past, Present and Future. Diabetes Research and Clinical Practice 103, 244-255.

f Statistics for Australia sourced from ABS (2012) Australia’s Health Survey: First Results, 2011-2012, Diabetes Mellitus. 4364. 0.55. 001, 29 October 2012, viewed December 2014 <http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/D4F2A67B76B06C12CA257AA30014BC65?opendocument&gt;.

g Australian data are for the period 2011-2012.

As part of its Master of Health Law program, Sydney Law School offers several units of study that consider global health, law and development.  These include Critical issues in Public Health Law; Law, Business and Healthy Lifestyles; Global Health Law; and Trade Regulation, Health and the Environment.

[Thanks to Alexandra Jones for references and for information about Australia’ health aid program]