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.

 

 

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.

 

 

ACCC fines Uncle Tobys for false and misleading statements

medias[1]A reminder last week about the important role that consumer protection laws play in public health, and in holding – in this case – a food manufacturers accountable.

Cereal Partners Australia, which owns the Uncle Tobys brand, has paid a penalty of $32,400  imposed by the Australian Competition and Consumer Commission for allegedly making false and misleading statements about the protein content of porridge.

Porridge is a protein superfood (if you add milk)

Uncle Tobys labelled its oat porridge satchets as “protein superfood”*, adding in small print “*when prepared with [1/2 or 2/3] cup of skim milk”.

This was not enough to satisfy the ACCC, which felt that the dominant impression created by the packaging was that oats are high in protein, when this is not the case.

Provisions in the Competition and Consumer Act 2010 (Cth) permit the ACCC to issue an infringement notice as an alternative to taking court proceedings against a person or company for breach of a range of provisions in the Australian Consumer Law (ACL), as well as many other provisions in the Act itself.

[Reckitt Benckiser, which manufactures the painkiller Nurofen, was not so lucky: the ACCC launched Federal Court action against the company for misleading statements made about the ability of Nurofen products to target particular kinds of pain.  The Court has ordered that Nurofen products for back, period, migraine pain and tension headaches be removed from shelves].

The Australian Consumer Law in contained Schedule 2  of the Competition and Consumer Act 2010 (Cth) . It commenced operation on 1 January 2011. It is a single, national law covering consumer protection and fair trading. It contains revised versions of provisions in the old Trade Practices Act, as well as provisions from Fair Trading Acts at State level. It implements agreements reached by the Council of Australian Governments (COAG) in 2008 to create a single, national consumer law. The Australian Consumer Law applies at Commonwealth, state and territory level.

Part 3-1 of the ACL contains a range of provisions relating to false or misleading representations.

In issuing three infringement notices against Cereal Partners, the ACCC would appear to have been referring to breaches of provisions in ACL Part 3-1, such as s 29, which provides that a person must not, in trade or commerce, make false or misleading representations about the standard, quality or composition of goods purchased by the consumer.

By claiming through its advertising that oats are rich in protein, the ACCC took the view that Uncle Tobys was making false or misleading representations.

According to its nutrition panel, one serving of oats gives you 4.4g of protein: about 9% of daily recommended intake for a normal adult.

Uncle Tobys was fined $32,400; that’s 3 X $10,800 for each of the 3 infringement notices issued.

That’s probably a few minutes of revenues for Cereal Partners Australia, which is the Australian subsidiary of Cereal Partners Worldwide, a joint venture  between Nestle SA and General Mills Inc.

But it’s still 6,700 times larger than a 10 pack of oats satchets, which retails for $4.83 at Coles.

When trust is such a vital ingredient for sales and revenues, the publicity given to penalties provides part of the wider incentive structure for food manufacturers to avoid false and misleading statements in their advertising.

Complaint to the Advertising Standards Board

In addition to advertising Uncle Tobys oats as a protein superfood on its packaging, the manufacturer ran TV advertisements claiming that “UNCLE TOBYS Oats with milk are naturally rich in protein which helps build muscles… and they’re a superfood”.

A disgruntled viewer made a complaint to the Advertising Standards Board, which administers a number of voluntary codes , including the  AANA Food & Beverages Advertising & Marketing Communications Code (the “Food Code”).

Section 2.1 of the Food Code states that: “ Advertising or Marketing Communications for Food or Beverage Products shall be truthful and honest, shall not be or be designed to be misleading or deceptive or otherwise contravene Prevailing Community Standards…”

The Board’s determination is here (0225/15).

The Board did not consider the term “superfood” was misleading; however, it did consider the advertisement breached section 2.1 because it suggested to a reasonable viewer that the product was naturally high in protein and failed to “make sufficiently clear that the product needs to be combined with milk to achieve the heightened nutritional content of protein”.

Unlike the ACCC’s action, the ASB’s determination received no publicity that we are aware of.

Wouldn’t it be clearer for consumers if food manufacturers focused their advertising on the nutritional characteristics of their product, rather than the nutritional features of quite separate products which – if consumed at the same time – can yield the nutritional benefits that are claimed?

 

The ACT sin bins junk food ads on buses

The ACT has taken steps to ban fast-food ads on buses. Image from abc.net
The ACT has taken steps to ban fast-food ads on buses. Image from abc.net

The ACT attracted media attention this week for becoming the first Australian jurisdiction to regulate ride-sharing services like Uber. But the ACT’s also been active in an area that’s close to the heart of many public health advocates: regulation of junk food and alcohol advertising. Promotions for these products will be banned on ACTION buses, along with ads for gambling, fossil fuels, and weapons, under a strict new government policy.

While derided by critics as another example of the “Nanny State” in action, the move represents a win when it comes to protecting children from junk food promotion. In discussing the ban, the ACT Minister for Territory and Municipal Services acknowledged that “[i]t’s quite clear that junk food advertising is targeted at children, in many many places it’s quite pervasive and… buses are just another example of that… we need to make sure that kids are getting a healthier message given the level of childhood obesity we see in our community.”

There’s little appetite for stronger restrictions on junk food ads at the federal level, despite the National Preventative Health Taskforce recommending legal measures to reduce children’s exposure to junk food ads back in 2008. This was followed by several attempts by The Greens party to introduce legislative amendments that would restrict junk food promotions on television. As with tobacco control, maybe legislative restrictions on junk food marketing to children need to start at the local level and work their way up.

The ACT’s policy also reflects growing government interest in “walking the talk” when it comes to obesity prevention, including by restricting the sale and promotion of unhealthy foods and beverages within government institutions. For example, New York City has developed a nutrition policy for all foods purchased, served, or contracted for by City agencies. Across the ditch, the New Zealand Ministry of Health has told all District Health Boards to stop selling soft drink in hospitals. Bans on junk food advertising in government-owned institutions, and on government-owned transport services, could form part of a package of measures that ensure that government agencies take a consistent stance on the importance of good nutrition and preventing weight gain. As noted by the ACT Minister for Territory and Municpal Services, if governments are seeking to promote healthier food to children, “leaving junk food advertising off the buses helps contribute to that overall objective of delivering a healthier message to our kids.”

The NZ Health Ministry has called on District Health Boards to stop selling soft drink.
The NZ Health Ministry has called on District Health Boards to stop selling soft drink.

Fanta ad falls flat before the Advertising Standards Board

An image from the Fanta ad that Coke was forced to pull, taken from: http://www.abc.net.au/news/2015-07-15/coca-cola-forced-pull-fanta-tv-ad-app-for-breaching-guidelines/6619424
An image from the Fanta ad that Coke was forced to pull, taken from: http://www.abc.net.au/news/2015-07-15/coca-cola-forced-pull-fanta-tv-ad-app-for-breaching-guidelines/6619424

Coca-Cola has been forced to remove advertisements for Fanta after the Advertising Standards Board found that the promotions breached the Responsible Children’s Marketing Initiative, a voluntary code on responsible food marketing to children.

The rulings came after the Obesity Policy Coalition laid three complaints about the ‘Fanta Tastes Like’ campaign, which included ads during prime time TV programs, a website, and a tablet application. All three promotions featured the Fanta Crew, an animated group of teenaged characters, who engaged in activities like catching fruit, riding roller coasters, and landing in a pool filled with bubbles.

Coke, who owns Fanta, argues that it does not market any of its products to children under 12 years of age, and that the Fanta Crew characters were designed to represent 17 year olds and to reflect older teen culture. However, the Advertising Standards Board held that the characters were more likely to appeal to younger children who aspire to be teenagers, rather than being of interest to teenagers themselves, and therefore were most strongly directed to children in the 9-11 year age bracket.

Considering the overall effect of the themes, visuals and language used in the ads, the Board held that the app and the TV promotions were directed primarily to children under 12 years of age, particularly considering the simplicity of the app’s games, and the depiction of the Fanta Crew on roller coasters and jumping into a pool filled with bubbles in the television ad.

Given that Fanta was not a ‘healthier dietary choice’ that was suitable for marketing to children, the Board upheld the complaints in relation to the app and the TV ad. However, it dismissed the complaint about the website, holding that key elements were designed to appeal to adults, including the factual descriptions of the product flavours and the inclusion of nutrition information.

These decisions represent a solid win for the public health community, despite the Board dismissing the third complaint. Of particular note is that the Board held that an app fell within the scope of the Responsible Children’s Marketing Initiative, despite apps not being explicitly included in the wording of the code.

However, it is relatively rare for the Advertising Standards Board to uphold complaints under the Responsible Children’s Marketing Initiative, because of the numerous loopholes in the code’s terms and conditions. For example, the complaints tested whether Coke breached the code by placing the Fanta ad in prime time television programs, including My Kitchen Rules. However, the Board held that these programs were not directed to children because they did not have an audience share of more than 35% children (as per the code’s rules), despite My Kitchen Rules being one of the most-watched programs by children under 12.

Other critical problems with the code include a lack of independent oversight and enforcement, inadequate reporting on compliance, and limited membership. These complaints show that it’s time to junk industry self-regulation of food marketing to kids, and implement stronger restrictions that put children’s interests before those of the food industry.

Picture from the Fanta Fruit Slam 2 app game, with scores displayed as a thermometre full of soft drink. Taken from: http://www.smh.com.au/nsw/cocacola-reprimanded-over-fanta-ad-that-targets-children-20150714-gibxrs.html
Picture from the Fanta Fruit Slam 2 app game, with scores displayed as a thermometre full of soft drink. Taken from: http://www.smh.com.au/nsw/cocacola-reprimanded-over-fanta-ad-that-targets-children-20150714-gibxrs.html