Big Alcohol and COVID-19: industry rules fail. Again.

By Hannah Pierce, Kathryn Backholer, Sarah Jackson and Florentine Martino

Reposted from MJA Insights: https://insightplus.mja.com.au/2021/11/big-alcohol-and-covid-19-failing-self-regulation-again/

Image by Vova Drozdey (Unsplash)

WE know some people are more likely to drink – and drink more – during times of uncertainty and stress. Unsurprisingly, the alcohol industry is also aware of this.

The COVID-19 pandemic has illustrated how quickly and creatively the alcohol industry will adapt its marketing practices to appeal to people’s vulnerabilities. And in Australia, there are few rules in place to stop these predatory actions. This is despite the link between risky alcohol use and weakening of the body’s immune response to COVID-19; not to mention the long-established impacts that risky alcohol use has on the physical and mental health of individuals, families and communities.

Two studies released recently show just how deceptive the alcohol industry has been during the COVID-19 pandemic and why current industry marketing codes fall far short of protecting public health.

The extent and nature of COVID-19-washing through social media marketing

In a recent study led by the Global Obesity Centre at Deakin University and VicHealth, all COVID-19-related social media posts made by leading alcohol brands and delivery services on their official public accounts were audited over a 4-month period during the COVID-19 pandemic in Australia (February to May 2020). The study found that COVID-19-related marketing on Facebook, Instagram, YouTube and Twitter was highly prolific. Of the 26 alcohol brands and services audited, more than 400 social media posts were identified with up to a million plus “likes” or “shares” for a single post.

Sentiments of “community support” and “coping with stress” were most commonly used as a lure. For example, one brewery posted: “Connect with your mates online and we’ll get through this together, with a [beer brand] in hand”. One alcohol retailer promoted “wine” down time and another encouraged “knock off” drinks from home and “conference calls with colleagues to give you a sense of Knock Off Normality”.

Isolation activities involving consumption of alcohol were also heavily advertised. For example, one alcohol retailer posted videos with cocktail recipes, calling for #virtualhappyhour; organised online trivia nights using Facebook Events “with $300 in [retailer’s] eGift Cards (to help fund your next trivia night)”; gave away boxes of wine (valued at $100) in a competition where “community heroes” could be nominated; and organised virtual whisky tastings in collaboration with a popular brand of scotch.

Citing corporate social responsibility, donations of money and the production and donation of hand sanitisers were also common. By building goodwill, increasing company reputation, and thus insulating themselves from criticism, the alcohol industry may be creating an environment where further regulation of alcohol can be resisted, or worse, existing regulation may be weakened.

In our opinion it is clear that Big Alcohol is using the pandemic as an opportunity to sell more alcohol. But the question is whether there is a system in place that prevents companies from targeting vulnerable communities with harmful alcohol marketing.

Current controls on alcohol marketing in Australia

There are very few controls on alcohol marketing in Australia. Most alcohol marketing is covered only by the alcohol industry’s own rules in the Alcohol Beverages Advertising Code (ABAC) Scheme. This voluntary scheme is developed, managed and funded by the very same companies that spend millions of dollars every year promoting their alcohol products. A substantial body of research has examined the effectiveness of this system over the past 20 years and consistently concluded that the ABAC Scheme does not effectively protect children and young people from exposure to alcohol marketing.

Having observed the industry tactics during the early months of the COVID-19 pandemic, Cancer Council WA and Cancer Council Victoria saw an opportunity to examine whether the current ABAC Scheme was expansive or comprehensive enough to deter harmful promotion of alcohol during this time. To do this, 18 determination reports considering community complaints and other publicly available documents on the ABAC Scheme website that referred to COVID-19-related alcohol marketing were reviewed against a framework for evaluating the effectiveness of industry-based regulation. The report Giving the ok to “Stay In. Drink Up” outlines the result, highlighting five problems with relying on the ABAC Scheme during the pandemic:

  • the objective of the ABAC Scheme is inadequate and unsuitable, resulting in a system that fails to protect the community, and particularly those who are vulnerable, from harmful alcohol advertising;
  • key terms in the ABAC Code are not clearly defined, leading to the dismissal of complaints about promotions that encouraged drinking in the home during lockdown;
  • the ABAC Code provisions are too narrow to capture all the themes alcohol marketers are using during the COVID-19 pandemic;
  • there is no monitoring system, so it’s not possible to know how often alcohol companies are ignoring the rules — harmful promotions stay in market unless a community member goes out of their way to make a complaint that is then upheld; and
  • there are no meaningful penalties for advertisers who breach the ABAC Scheme, providing very little incentive for alcohol companies to avoid using harmful messages during the pandemic.

When assessing the complaints about alcohol ads that referenced the pandemic, the ABAC Panel appeared to give no consideration to the impact the pandemic was having on the Australian community. For example, one Facebook ad promoted a “14-day isolation pack”, which included nine bottles of wine to “help you through” 14 days of isolation. In the determination report, there was no mention of the significant amounts of stress and anxiety that many individuals and families in the Australian community were experiencing due to the pandemic. Instead, the ABAC Panel decided that promoting alcohol via an “isolation deal” was the same as referencing a “Christmas pack”. They believed that the post would not be understood as encouraging people to drink all nine bottles of wine in 14 days and so the complaint was dismissed. Similarly, alcohol ads including the phrases “Stay In. Drink Up”“survival kits”, and “all day every day” were all deemed acceptable.

In our opinion the ABAC Scheme has been inadequate at preventing harmful alcohol marketing during the pandemic. Previous research has focused on the ABAC Scheme’s ability to prevent the exposure of children and young people to alcohol marketing. This is because we know the more children are exposed to alcohol advertising, the more likely they are to start drinking earlier and more heavily. An effective regulatory system is crucial for protecting children from exposure to alcohol marketing.

In our opinion, the COVID-19 pandemic has left many more Australians vulnerable to influential marketing messages from the alcohol industry. The well recognised deficiencies of the ABAC Scheme have allowed the alcohol industry to bombard the community with harmful alcohol marketing at a time when they are most vulnerable.

The need for government regulation to protect Australians from harmful marketing practices

The management of the COVID-19 pandemic in Australia is an excellent example of the positive health outcomes we can achieve when decision makers listen to public health advice and implement evidence-based policies. These new publications mentioned above highlight once again that alcohol companies cannot be trusted to write the rules on alcohol advertising, and demonstrate the urgent need for the Australian Government to introduce legislation to protect the community from harmful marketing practices. It is time for the government to step up, listen to the public health evidence and advice, and put people before profits.

Hannah Pierce is an Alcohol Policy and Research Coordinator with the Alcohol Programs Team at Cancer Council Western Australia. Twitter: @hannahpierce01

Kathryn Backholer is a National Heart Foundation Future Leader Research Fellow and Associate Director of the Global Obesity Centre at Deakin University. Twitter: @KBackholer

Sarah Jackson is Senior Legal Policy Adviser at Cancer Council Victoria and leads policy for Alcohol Change Vic, a coalition of  organisations that campaigns for policy reform to prevent alcohol harm in Victoria.. Twitter: @SarsJackson

Florentine Martino is a Postdoctoral Research Fellow at The Global Obesity Centre (GLOBE) at Deakin University in Geelong. Twitter: @fp_martino

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.

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.

Promoting health goals in a self-regulating industry

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

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

Parliament House in Canberra, Australia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Party like it’s payday!” urges Diageo Australia (before your welfare cheque runs out?)

It looks like Diageo Australia is at it again.

No, this time they’re not advertising Bundy Rum to a 3 year old.

Instead, they’re urging Western Australians to “Party like it’s payday” – hoisting ads for Captain Morgan Original Spiced Gold Rum around the Perth suburbs, including right outside a Centrelink office.

Whatever were they thinking?  Party like it’s payday – before your welfare cheque runs out?

Here’s Hannah Pierce, Research Officer at the McCusker Centre for Action on Alcohol and Youth, Executive Officer of the Alcohol Advertising Review Board, and a Master of Health Law candidate at Sydney Law School.

Hannah’s blogpost is re-published with permission from Drink Tank.

Just when you thought the marketing techniques of alcohol companies couldn’t shock you any further, along comes an ad campaign that takes things to a whole new low.

Last month the Alcohol Advertising Review Board received a complaint about outdoor ads for Captain Morgan Original Spiced Gold Rum with the very prominent message, “Party like it’s payday”.

Understandably, the complainant was concerned about the tagline linking drinking and payday:

It makes me think of the people who spend their pay on alcohol and then don’t have much money left over for essentials like food and rent etc. There has been quite a lot of talk in the media of cashless welfare cards which can’t be used on alcohol or gambling so people use their money on food, clothing and bills. This is obviously a big problem in Australia, so it seems outrageous to have a very public alcohol advertising campaign that is actually promoting partying and buying alcohol around the payday theme.”

When notified of the complaint, Diageo Australia, the owner of Captain Morgan rum, declined to participate in the AARB process and confirmed their support for the self-regulatory system.

Given the sensitive issues the ad could raise, you’d think they’d be pretty careful where they put the ad, right?

Wrong.

The AARB received a second complaint about the ad, this time placed directly outside a Centrelink office on a Telstra payphone. The complainant said:

The sign says “Party like its Payday” conveniently out the front of Centrelink where people go to get their fortnightly welfare payment. This is highly insensitive considering Australia’s alcohol issues are highly prevalent amount those on welfare benefits […]”

Considering the substantial concerns about alcohol-related harms in Australia, including alcohol use among young people and vulnerable populations who are likely to visit Centrelink, the placement of this ad is blatantly inappropriate.

These complaints were reviewed and upheld by the AARB Panel. The Panel believed the tagline was irresponsible and encouraged excessive drinking, and that the ad attempts to establish that drinking Captain Morgan should take precedence over other activities, such as paying for accommodation and food.

The Alcohol Advertising Guidelines of the Outdoor Media Association (OMA), the peak national industry body that represents most of Australia’s outdoor media companies, note that its members “only accept copy for alcohol advertising that has been approved for display through the Alcohol Advertising Pre-vetting System”.

Evidently, the content of the Captain Morgan ad was actually approved by the self-regulatory system, highlighting serious concerns about its ability to ensure alcohol advertising is socially responsible.

In addition, the OMA has only one guideline relating to the placement of alcohol ads – that they cannot be placed within 150 metres of a school gate. Everywhere else is open slather.

So it appears neither the content of the “Party like it’s payday” rum ad nor its placement outside a Centrelink breach any codes in the self-regulatory system.

Despite this, the AARB has written to the OMA and Advertising Standards Bureau to seek their position on whether the content and placement of the Captain Morgan ad is consistent with the OMA’s commitment to “the responsible advertising of alcoholic beverages”.

The AARB has also written to Telstra to highlight our concerns about outdoor alcohol advertising and ask that they consider phasing out alcohol advertising on Telstra property, including pay phones.

The AARB was developed by the McCusker Centre for Action on Alcohol and Youth and Cancer Council WA in response to concerns about the effectiveness of alcohol advertising self-regulation in Australia.

This Captain Morgan ad is yet another example that highlights the need for this alternative complaint review system to support action on alcohol ads that the self-regulatory system deems acceptable.

If you see an alcohol ad that concerns you, we encourage you to submit a complaint to the AARB. Every complaint the AARB receives is further evidence of the need for strong, independent, legislated controls on alcohol advertising in Australia. Visit www.alcoholadreview.com.au and follow @AlcoholAdReview on Twitter to find out more.

Republished with permission from Drinktank.

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

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

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

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

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

Fairfax press reported on the issue here.

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

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

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

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

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

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

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

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

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

…Google thought you were an adult

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

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

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

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

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

…You were accessing an unauthorised or pirated video

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

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

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

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

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

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

The “other measures” comprise the following:

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

So what really happened?

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

Plugging the holes in the cheese

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

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

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

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

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

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

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

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

The bottom line

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

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

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

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

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

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

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

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Bundaberg Rum and Dora the Explorer: the reality of alcohol advertising in Australia

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A brief commercial break, then on with the show…

My 3-year old daughter loves Dora the Explorer.  She thinks that bossy little know-it-all, Dora, is really cool.  She used to be frightened of The Swiper, but that changed as she grew older.

Last night, I sat her down in front of a laptop and let her watch an episode of Dora on YouTube.  Right away an ad filled the screen for Bundaberg Rum.  Bundaberg Rum is a brand owned by Diageo Australia.  All of this happened mid-evening, before 9pm.

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This is the reality of alcohol advertising in Australia.  Liquor ads, bought and paid for by Australian drinks manufacturers, streamed online with children’s content.

It’s not unlawful.  It’s business as usual.

This is the kind of thing the Alcohol Advertising Review Board draws attention to in its latest report.

A product review by a 12 year-old for Vodka Cruiser Pineapple Passion Punch 2L, on the Dan Murphy website (owned by Woolworths). Johnny Walker and Smirnoff ads screened in cinemas  before “Minions” – an animated film, rated PG.  Alcohol ads plastered over bus stops outside schools (see p 17 of the report).  And so on.

If you don’t want your pre-schooler exposed to liquor ads while watching age-appropriate material online, what are your options?

First stop: The Alcoholic Beverages Advertising Code (ABAC).  According to ABAC, “The ABAC Scheme is the centrepiece of Australia’s quasi-regulatory system and is administered by a Management Committee which includes industry, advertising and government representatives.”

The ABAC Code and complaints scheme are not legally binding, but members of the Brewers Association of Australia and New Zealand, the Distilled Spirits Industry Council of Australia and the Winemakers’ Federation of Australia are signatories.

The ABAC Code places few real constraints on signatories, but it enables the alcohol industry to claim that alcohol advertising is regulated responsibly, at no cost to government.  Which would be great, if it were true.

The ABAC Code places no restrictions on the placement of an alcohol advertisement.

If you’re a drinks manufacturer who wants to advertise on the internet – including on websites that carry or are even devoted to children’s content – the ABAC Code has no problem with it.

For example, when Crown Lager ads appeared on a “Bratz” games website (and check out the URL to see what I mean ), the complaint was dismissed  because the ABAC Code was designed not to apply to the placement of alcohol ads.

An independent complaints scheme, the Alcohol Advertising Review Board, points out the limitations of the ABAC, and administers its own Codes, with help from a panel of lay members located around the country.

The Content Code is constructed from provisions in existing alcohol advertising codes from around the world.  The Placement Code, however, “features provisions by which the Board considers the placement of alcohol advertising should be governed”.

The Placement Code contains the following provisions:

1. Placement: General

Alcohol Advertisements should not be placed: (i) in places or at broadcast times where Young People are exposed or are likely to be exposed; or (ii) in connection with content that appeals to Young People.

8. Internet

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

As a parent, those constraints appear entirely reasonable to me.

By the way, you have to love the “Drink Wise” logo in the second screen shot above.  You probably missed it.  After all, it was designed to be missed.

For further comment on this in the Sydney Morning Herald and Fairfax press, click here.

A Fairfax video reporting on this blogpost, containing the images included in this post, has now been added to YouTube.

AdNews has reported that Diageo has suspended all media across the YouTube platform while it investigates the matters raised above.

This incident provides an interesting opportunity to test the limits or otherwise of the ABAC Code.  Accordingly, I have submitted a complaint.

Are you interested in studying health law?  For further information on Sydney Law School’s Master of Health Law and Graduate Diploma programs, follow this link.

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