This Bill illustrates a sometimes neglected aspect of public health law: use of law to build new institutions, to encourage partnerships, and to create a clear legislative mandate to address health challenges.
The Healthy Futures Commission was an election commitment by the Palaszczuk Labor Government.
Increase levels of physical activity by 20% (p 15/28).
The Bill would establish the Healthy Futures Commission Queensland, a portfolio agency within the Health Ministry.
Its purpose is to “support the capacity of children and families to adopt a healthy lifestyle”, and contribute to the reduction of health inequalities for children and families (s 3).
The functions of the Committee include: advocating for the social conditions and environments necessary to support healthier lifestyles and reduce health inequalities, and developing partnerships (s 9).
The Commission has power to make grants on matters relating to its functions, to industry or community organisations, universities, local governments, and business entities. The source of funding for these grants would be the Healthy Futures Queensland fund established by the Bill (s 41), which is also the funding source for the Commission’s own costs and expenses.
The Bill requires that at least 55% of total funding shall be paid out as grants (s 41(4)). This reflects the importance of the Commission’s grants function, and appears to be intended to ensure that the majority of funds are expended on “real world” interventions and projects addressing healthier eating and physical activity. This funding requirement also creates a natural check on the size of the Commission itself.
The Commission must prepare an annual project funding plan each year for approval by the Board and the Minister (s 42).
In performing its functions, the Commission is required to take into account the social determinants of health, as understood in the Rio Political Declaration on Social Determinants of Health, as well as the needs of vulnerable groups experiencing health inequity including Aboriginal and Torres Strait Islander communities.
The Commission is not entirely independent of politics and must comply with any direction given by the Health Minister about the performance of the Commission’s functions (s 10). The Minister may request reports from the Commission on relevant matters but may not give directions about the content of any such report (s 11).
Queensland’s Healthy Futures Commission would be governed by a 6-member Board appointed by the Governor in Council on the recommendation of the Minister. Board members must have qualifications or experience in business, law, leading partnerships, or assessing the impact of social conditions on health equity. Board members are appointed to 4 year terms (and may be re-appointed) (s 16).
The Board is empowered to establish committees, whose membership could include appropriate external experts, to assist it to perform its functions (s 29).
Earlier this year I published an article on self-regulation of food marketing to children in Australia. I focused on two voluntary codes developed by the Australian food industry to respond to concerns about children’s exposure to junk food advertising, and how it might affect their eating habits. My article pointed out the many loopholes in food industry self-regulation, mirroring other concerns expressed about regulation of junk food marketing to children, and described how the Australian regulatory regime might be strengthened.
Jane Komsky recently published a blog post on my paper on The Regulatory Review, the blog of the Penn Program on Regulation. We republish Jane’s post below, with the kind permission of The Review.
They are all memorable characters that children love—which is why the Australian food industry does not hesitate to use them to promote foods widely thought to be unhealthy.
According to Professor Belinda Reeve of Sydney Law School, food marketing in Australia has contributed significantly to the country’s increased rate of childhood obesity. Reeve argues that childhood obesity often leads to low self-esteem, bullying, and major health problems, such as diabetes and heart disease. Thus, limiting children’s exposure to unhealthy food marketing could help lower the rate and risk of the condition, says Reeve.
In response to this growing concern about the effects of unhealthy food marketing to children, the World Health Organization (WHO) encourages countries to adopt effective regulatory measures. While the WHO offers guidance for the design and implementation of regulatory measures, the Australian regulatory regime prefers to allow the food industry to regulate itself. For example, the food industry developed “voluntary pledges” where companies agreed to advertise only healthier products to children, restrict their use of product placement, and report annually on their compliance.
Although self-regulation of food marketing can be effective, Reeve argues that the self-regulation route does not typically work in industries that have economic motives not to comply. She posits that the food industry in Australia continues to promote its own private interests at the expense of public health goals. Ideally, according to Reeve, the industry should be put on “notice” that unless the industry players actively advance public health goals, the government regulators will intervene with more oversight and regulations over the industry, a so-called responsive regulatory approach.
The Australian food industry, through its voluntary self-regulation program, adopted only very narrow regulations, which focus strictly on food advertisements specifically directed at young children, says Reeve. Reeve explains that food companies avoid regulation by creating advertisements “officially” targeting adults and families, instead of young children, while simultaneously using animated characters that children find appealing. Reeve urges a “significant expansion” to the existing rules to close off these loopholes.
In addition to permitting child-friendly advertising, the current Australian advertising system fails to limit unhealthy food advertisements, Reeve argues. The WHO explains that any exposure to unhealthy food marketing influences children, who, in turn, influence their parents to buy these meals for consumption, even when the advertisement is officially targeted for other audiences. The WHO suggests the regulation will be more effective if the main goal aims to reduce children’s overall exposure to unhealthy food marketing, not just reducing the marketing that targets children.
Reeve explains that to enforce the Australian food marketing industry’s voluntary self-regulation program effectively there must be better oversight over the industry as a whole. Reeve first suggests introducing an administrative committee with representatives from government agencies, as well as other external and internal stakeholders to balance private and public interests. This committee would be responsible for collecting and analyzing data about the nutritional quality of products marketed to children and the industry’s level of compliance. The committee would then track improvement from companies’ mandatory reporting requirements.
Reeve writes that this committee would implement an enforcement mechanism—such as sanctions—if companies were to breach their responsibilities. Sanctions provide a strong motivation for compliance through potential reputational and financial consequences for companies. Similarly, the committee would encourage compliance through a wide range of incentives.
If the committee finds that the self-regulation program does not achieve high levels of compliance, Reeve suggests moving to a co-regulatory system. A co-regulatory system would allow the government to get more involved in regulation by creating legislative infrastructure requiring all food industry companies to follow regulations and preapproved goals. The food marketing industry would still set its own standards, but the responsibility for monitoring and enforcing these standards would be transferred to a government agency, thereby putting greater pressure on companies to comply.
If the industry fails to make significant progress under the co-regulatory system, Reeve suggests that government adopt new statutory measures altogether. Reeve promotes a prohibition on unhealthy food marketing on television until late at night, restricting marketing on media platforms with large child audiences, and banning unhealthy food marketing in and around sites where large groups of children gather. Reeve even suggests prohibiting the use of animated characters and celebrities to promote unhealthy foods.
Once the government implements these statutory measures, a government agency would monitor and enforce the rules. In some cases, the government could even prosecute companies that “engaged in serious forms of noncompliance.” The agency would regularly analyze and write reports about the progress of reducing children’s exposure to unhealthy food marketing.
Reeve anticipates that this type of government intervention would be viewed as intrusive and would face industry resistance. The industry’s response might suggest that this type of intervention is not practical. But, Reeve believes the threat of this intrusive government intervention will motivate the industry to comply with the softer regulations that should be put in place first. Such a threat will also provide the government with greater bargaining power for implementing more effective voluntary and co-regulatory policies.
According to Reeve, the Australian food marketing industry has a real opportunity to upend the rate of childhood obesity, but only if the industry puts the public’s health interests before its own private interests.
However, according to Fairfax Press, Dr Nabarro has “stepped into the ring to slap down calls for sugar taxes, saying there is not enough evidence on what drives over-eating to justify blunt levies on the ingredient”.
According to Fairfax Press, Dr Nabarro cautioned against “blunt regulations” like a sugar tax and noted that the state should only intervene where the intervention has a proven effect in changing behavior.
Well that would depend on the rate of the tax. A growing body of research – examples here, and here – argues that dietary taxes could both raise revenue and improve health outcomes. In ways that subsidised gym memberships, education, personal responsibility and good intentions are unlikely to.
Dr Nabarro also distinguished between contagious epidemics, which engage the “pure health sector” and non-communicable diseases, which require inter-sectoral responses across a number of sectors.
The suggestion is that special caution is warranted with non-communicable diseases.
I’m not sure I take the point. Outside of sub-Saharan Africa, the world overwhelmingly dies from non-communicable diseases.
People are not less dead, and prior to death they are not less disabled because the condition crept up on them slowly, due to lifestyle factors that have multiple determinants.
So can we put this down to WHO politics, or is Dr Nabarro foreshadowing a softer line on “big food” and “big soda” if he is elected Director-General?
These are questions he may be asked when he is in Australia later this month.
By the way, in a recent report the Australian Institute of Health and Welfare has estimated that 7% of the burden of disease in Australia is attributable to overweight and obesity (63% of which is fatal burden). Overweight and obesity are responsible for 53% of Australia’s diabetes burden, and 45% of the burden of osteoarthritis.
Recently, Cancer Council NSW published a study finding that food industry self-regulation in Australia has not been effective in reducing children’s exposure to unhealthy food marketing. Australian children still see, on average, three advertisements for unhealthy foods and beverages during each hour of prime time television they watch. This figure remains unchanged despite the Australian food industry introducing two voluntary codes on food marketing to children in 2009.
I undertook an in-depth analysis of the terms and conditions of the two food industry codes on marketing to children. I also analyzed the processes of administration, monitoring, enforcement and review established by the self-regulatory scheme.
My analysis drew on the code documents themselves, monitoring reports from the food industry, existing independent research, and a sample of advertising complaint determinations from the Advertising Standards Board. I also considered the revisions made to the codes in 2014 (following an independent review of the scheme), and asked whether these revisions make the codes more likely to protect children from exposure to unhealthy food marketing.
My key finding is that the substantive terms and conditions of the codes contain a series of loopholes which leave food companies with a variety of techniques they can use to market unhealthy products to children. These loopholes include:
A weak definition of “media directed primarily to children” which excludes general audience programs that are popular with children
A weak definition of “advertising directed to children,” made weaker still by the Advertising Standards Board’s interpretive approach; and
The exclusion from the codes of key promotional techniques such as company-owned characters (e.g., Ronald McDonald), brand advertising, product line advertising, and product packaging and labelling.
The processes used to administer and enforce the codes also contain a series of flaws, undermining the codes’ efficacy, transparency and accountability. These include:
A lack of consultation with, or participation by, external stakeholders in the development of the codes, e.g., consumer or child representatives, government, or public health groups;
A lack of independent, systematic monitoring of the codes; and
The limited availability of enforcement mechanisms for non-compliance.
These loopholes and limitations help to explain why food industry self-regulation has not been effective in improving children’s food marketing environment. Further, the revisions to the codes made in 2014 appear to have done little to improve the self-regulatory scheme, and are unlikely to lead to lead to reductions in children’s exposure to unhealthy food marketing.
My article sets out a “responsive” or step-wise approach for strengthening regulation of food marketing to children, by closing off the loopholes in the substantive terms and conditions of the codes, and strengthening regulatory processes, including monitoring and enforcement. Most importantly, I argue, regulation of food marketing to children needs strong government leadership and an approach to protecting children from unhealthy food marketing that doesn’t just rely on voluntary food industry action. There are a range of regulatory options available, even if government is unwilling to introduce new statutory controls on food marketing to children.
The Grattan Institute report estimates that such a tax would reduce the consumption of sugary drinks by about 15% and generate up to half a billion dollars that could help to pay for a broad array of obesity-related programs.
Imagine! A public health policy that fights obesity, diabetes and tooth decay AND generates revenue.
The National Party hate the idea. Deputy Prime Minister and Leader of the Nationals, Barnaby Joyce told reporters:
“If you want to deal with being overweight, here’s a rough suggestion: stop eating so much, and do a bit of exercise. There’s two bits of handy advice and you get that for free. The National Party will not be supporting a sugar tax”.
Well that’s what he said.
But here’s what I heard: “We know that obesity and diabetes are out of control. But we have ideological objections to being part of the solution”.
The same day that Minister Joyce shared these thoughts with reporters, the Australian Food and Grocery Council issued a press release saying that it was seeking a “constructive response to obesity”.
“Obesity is a serious and complex public health issue with no single cause or quick-fix solution”, explained the AFGC, but “it is not beneficial to blame or tax a single component of the diet”.
With most complex issues, you start somewhere. You come up with evidence-informed policies and you try them out. You rigorously evaluate their performance, and learn by doing.
But not with obesity. “Complexity” is the new enemy of action. Since the causes of obesity are complex, every “single” policy advanced in response can be dismissed as a dangerously simplistic solution to a complex problem.
Welcome to obesity, the problem we’re not allowed to start to fix.
Except with personal responsibility, of course.
Personal responsibility…the answer to obesity, traffic accidents, terrorism, Zika virus, perhaps everything?
In a limited sense, Barnaby Joyce is right.
The only cure for personal obesity is personal responsibility.
But personal responsibility has turned out to be a spectacularly poor solution to “societal obesity”.
By societal obesity, I am referring to the trend towards overweight and obesity that has arisen over the past few decades and now affects the majority of adult men and women (and more than one in four children).
Since each of us is an individual, and because we live in a culture that prizes individual autonomy, it’s easy to fall into the trap of believing that individual effort, personal motivation, is the solution to the world’s ills.
But just as the global epidemics of obesity and diabetes were not caused by a catastrophic, global melt-down in personal responsibility, personal responsibility is equally unlikely to provide the magic solution.
That’s where public policies come in.
Governments know all this, but with the exception of tobacco control, they seem reluctant to apply their knowledge in the area of preventive health.
The fact is, from road traffic accidents to terrorism, smart governments:
acknowledge the complexity of the factors that contribute to societal problems;
They acknowledge that multiple interventions are needed, in many settings;
They acknowledge that possible solutions need to be trialled now, under conditions of uncertainty, instead of handing the problem to future generations.
They monitor the actions they take, because healthy public policy is a dynamic, ongoing process; and finally
They give a damn. Meaning that they recognise they are accountable to the community for helping to solve difficult, societal problems, and for the performance of the public policies they administer.
Imagine if Australia’s government took that approach with obesity.
The debate about a sugary drinks tax is here to stay: it will never go away
A tax on sugary drinks will get National Party politicians in trouble with sugar producers, and Liberal Party politicians in trouble with big food.
Despite batting it away, a tax on sugary drinks is on the public agenda, and it’s here to stay. I don’t see the sugary drinks industry winning on this issue indefinitely.
Partly because Australian health researchers will keep it on the agenda.
It will come back, and back. Especially as evidence of its success accumulates overseas.
One conversation worth having is how revenues from a sugary drinks tax might support agricultural producers in rural Australia, helping to cushion them from the adverse effects (if any) of the tax and creating incentives for the production of a sustainable and healthy food supply.
In the meantime, Australian health advocates need to broaden their base.
Advocacy for public policy action on obesity needs to become more closely integrated with advocacy on food security. And advocacy in both areas needs to be linked more closely to action on reducing health inequalities.
But enough about all that. You really came here for Barnaby, didn’t you?
The UK tax on soft drink and Jamie Oliver’s call to action
TodayBritain announced that from 2017 it would levy a tax on soft drinks containing more than five grams of sugar per 100 millilitres, as part of efforts to contain rising levels of childhood obesity. The announcement prompted Jamie Oliver to post a video on Facebook encouraging other governments to follow suit, and telling Australia and other countries to “pull your finger out” on soft drink taxes.
Should Australia introduce a sugary drinks tax? Would a tax be an effective obesity prevention measure? Or would it just be a slow and costly way of raising the ire of the food industry?
Australians drink a lot of soft drink
Around one third of Australians drink about a can of soft drink a day, making Australia one of the top ten soft-drink consuming countries in the world. Soft drink consumption among young people is particularly concerning, with around 47% of children (aged between two and 16 years) consuming sugar-sweetened beverages (SSBs) every day.
Why is soft drink bad for our health?
A large number of studies show that soft drink consumption increases the risk of obesity, diabetes, heart disease and dental caries, and soft drink consumption has been linked to approximately 184,000 deaths per year globally.
Soft drink has a large of amount of added sugar (when it’s not artificially sweetened), making it a key source of added sugar in our diets. Drinking soft drink displaces the consumption of healthier beverages, and we tend not to compensate for the calories we drink by reducing our food intake. Drinks that are high in sugar have been shown to reduce appetite control, which also contributes to weight gain.
Around 60% of Australian adults and 25% of children are either obese or overweight and obesity has overtaken smoking as the leading cause of preventable death and illness. Reducing soft drink consumption could be one way of reducing the burden of obesity and chronic disease, and its impact on Australia’s health care system.
Soft drink taxes are gaining momentum
Public health experts recommend soft drink taxes as one component of a comprehensive obesity prevention strategy, and a number of countries have taken this recommendation on board.
In September 2013 the Mexican congress passed an excise tax on SSBs of one peso per litre – a price increase of approximately 10%. Mexico also introduced an ad valorem tax of 8% on a defined list of non-essential energy-dense foods.
The US city of Berkeley passed a one cent per ounce excise tax on SSBs in November 2014, becoming the first US city to levy a targeted health-related tax on soft drink.
Since January 2015 Chile has levied an 18% ad valorem tax on drinks with a sugar content of more than 6.25 g of sugar per 100 mL, including energy drinks and sweetened waters. Sugary drinks with less than 6.25 g of sugar per 100 mL are taxed at 10%.
These are just a few examples of jurisdictions with soft drink taxes; others include France, Mauritus, and Barbados. Countries are also experimenting with taxes on other unhealthy food products, or on specific nutrients such as fat or salt, often in tandem with taxes on sugary beverages.
Are soft drink taxes effective?
Soft drink taxes are a relatively new initiative, meaning that there’s not much ‘real world’ evidence of their impact. However, modelling studies suggest that tax increases are effective in reducing consumption of SSBs, and a recent evaluation of Mexico’s soft drink tax provides more concrete evidence of the effectiveness of taxes in shifting consumption patterns. The study found that the average volume of taxed beverages purchased monthly was 6% lower after the tax was implemented, with reductions accelerating over time, and reaching a 12% decline by December 2014.
The effects of soft drink taxes on diet-related health are less certain, but there is some evidence for this relationship too. One review of the evidence found a statistically significant association between “substantial” food taxes and weight outcomes, particularly in relation to children, adolescents, low socioeconomic status populations, and those at risk for overweight.
Other studies are more equivocal, but keep in mind that this a recurring problem in public health – the difficulty of showing that one initiative in isolation will lead to significant weight reductions. Experts agreed that a number of complementary measures will be required if we are to see meaningful reductions in obesity and overweight.
What are some of the criticisms of soft drink taxes?
One of the main concerns about soft drink taxes is that they are regressive. In theory, SSB taxes have a larger impact on lower socioeconomic groups, given that such groups pay a higher proportion of their income towards soft drink purchases. However, the evaluation of Mexico’s soft drink tax found that reductions in soft drink purchasing were greatest among low SES households (averaging 9.1%), suggesting that low SES groups were the most price elastic and thus benefited the most from the tax.
Governments can also take steps to offset the regressive nature of soft drink taxes, for example by targeting subsidies for healthy foods and beverages to low-income households, which could be paid for using the revenue generated by soft drink taxes. Alternatively, tax revenue could be used to address disparities in health or socioeconomic status more broadly.
The effectiveness of an excise tax in reducing SSB consumption hinges on the extent to which the tax is passed on to consumers in the form of higher retail prices. Distributors or retailers may “under shift” the tax by absorbing its cost, thus lowering their profit margins, but sustaining sales. Lower than expected price increases may undermine the tax’s public health benefit. However, evaluations of SSB taxes in Berkeley and Mexico find that manufacturers and distributors have mostly passed on the costs of the taxes to consumers, suggesting that these taxes will have the desired effect.
What’s the situation in Australia?
Australia’s GST exempts many foods that are a core component of a healthy diet, such as fresh fruits and vegetables. Sugary drinks are subject to the GST, meaning that there is a kind of differential tax on soft drinks. However, the GST is not intended for this purpose and operates differently to a specific, health-related soft drink tax.
In 2008 the National Preventative Health Taskforce recommended that the government commission a review of economic policies and taxation systems, and use economic incentives to decrease the production and consumption of unhealthy foods and beverages. It cautiously recommended a soft drink tax, given the uncertain impact of these taxes on consumer health.
In its response to the Taskforce, the then federal Labor Government stated that it had already commissioned an independent review of the Australian taxation system, i.e., the Henry Tax Review in 2010. This review did not recommend health-specific taxes on foods and beverages (despite recommending tax hikes for tobacco and alcohol) and the Government said that it would not consider another review. Instead, the Government pointed to voluntary food reformulation efforts taking place through the Food and Health Dialogue.
Should Australia introduce a soft drink tax?
Jamie Oliver’s right. The Australian government does take a “weak, pathetic” approach to obesity prevention, and we could do better.
The evidence shows that an SSB tax could have a real impact on Australian’s soft drink consumption habits, as does the effectiveness of tobacco taxes and other food taxes such as Denmark’s tax on saturated fat. Soft drink has no nutritional value, making it one of the more uncomplicated food products to tax.
As well as shifting consumption patterns, soft drink taxes could prompt companies to reformulate drinks to reduce their sugar content, or to introduce new, healthier products. Taxes could also generate significant revenue for health promotion activities, preferably targeted at the most vulnerable populations.
The health outcomes of SSB taxes need further research, but this should not stop the Government from “pulling its finger out” as suggested by Jamie Oliver, and introducing a tax on soft drink, as many other countries are doing. An SSB tax would send a clear message that the government is committed to protecting the health of Australians, even if it means taking on the powerful multinational companies that dominate the beverage industry.
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.
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.
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.