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The UK Rules on Unhealthy Food Marketing to Children

Published online by Cambridge University Press:  21 July 2017

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Footnotes

*

University of Liverpool, agarde@liverpool.ac.uk.

References

1 Health Survey for England 2010–2012, Welsh Health Survey 2012, Scottish Health Survey 2013 and Health Survey Northern Ireland 2010/11: obesity analysis.

2 Health Survey for England 2010–2012.

3 “Tackling Obesities: Future Choices – Modelling Future Trends in Obesity and Impact on Health” (Foresight, Government Office for Science, 2007).

4 Health and Social Care Information Centre, www.hscic.gov.uk/ncmp.

5 “Child Measurement Programme for Wales 2013–14” (Public Health Wales NHS Trust, May 2015); National Child Measurement Programme data source: Health and Social Care Information Centre, www.hscic.gov.uk/ncmp.

6 G Hastings et al., “Review of Research on the Effects of Food Promotion to Children” (University of Strathclyde, 2003). This review has been regularly updated. The most recent update has been prepared for the WHO: G Hastings et al., “The Extent, Nature and Effects of Food Promotion to Children: A Review of the Evidence to December 2008” (WHO, December 2009), available at www.who.int/dietphysicalactivity/Evidence_Update_2009.pdf.

7 For information on Ofcom and its activities, see www.ofcom.org.uk.

8 Sonia Livingstone produced three reports for Ofcom on the effects of food advertising (February 2004, May 2004 and January 2006). They are all available at www.ofcom.org.uk. Her findings are summarised in Livingstone, S, “Does TV Advertising Make Children Fat: What the Evidence Tells Us?” (2006) 13 Public Policy Research 54 CrossRefGoogle Scholar. For a different interpretation of existing evidence, see Buckingham, D, “The Application of Science: The Role of Evidence in the Making of Regulatory Policy on Children and Food Advertising in the UK” (2009) 15 International Journal of Cultural Policy 201 CrossRefGoogle Scholar.

9 Department of Health, Making Healthier Choices (Cm 63740, 2004), para. 58, available at www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4094550.

10 Details can be found on Ofcom’s website: www.ofcom.org.uk/consult/condocs/foodads_new/.

11 “Television Advertising of Food and Drink Products to Children: Final statement” (Ofcom, 2007) para. 1.9, available at www.ofcom.org.uk/consult/condocs/foodads_new/statement/.

12 “Annex 7 – Impact Assessment: Annex to Consultation on Television Advertising of Food and Drink to Children” (Ofcom, 2006) para. 2.5, available at stakeholders.ofcom.org.uk/binaries/consultations/foodads_new/annexes/ia.pdf. Paragraph 2.5 continues as follows: “Children are affected by advertising at all ages. Surprisingly little is known of how media affect children differently at different ages, though it is commonly assumed that younger children are more influenced. Empirical studies of the effects of television advertising on children’s food choice were re-examined according to the age of the sample. Contrary to widespread belief, this did not show that young children, being more vulnerable, are more readily affected than more media-literate teenagers. Instead, findings of effects are rather mixed for younger children and more clear-cut for older children and teenagers. It is argued that all age groups are affected by advertising, both because different persuasion processes operate at different ages and because, presumably as a consequence, each age group is targeted by age-specific forms of advertising.”

13 At para. 2.7.

14 The ASA is the UK’s regulator of advertising across all media. For more information on the ASA, see www.asa.org.uk.

15 See section 13 of the UK Code of Broadcast Advertising: www.cap.org.uk/Advertising-Codes/Broadcast-HTML.aspx.

16 Details can be found on Ofcom’s website: www.ofcom.org.uk/consult/condocs/foodads_new/.

17 Supra note 11, para. 1.9.

18 The Audiovisual Media Services (Product Placement) Regulations 2010 were adopted on 18 March 2010 and entered into force on 16 April 2010. They amend Section 9 of Ofcom Broadcasting Code on commercial references featuring within television programming. Ofcom has subsequently published guidance on these rules, which entered into force on 28 February 2011. The Guidance is not binding, as explicitly confirmed at para. 1.1. For the Code and the Guidance, see stakeholders.ofcom.org.uk/broadcasting/broadcast-codes/broadcast-code/commercial-references-television/.

19 On the AVMS Directive, see the contribution below.

20 Art. 11 of Directive 2010/13/EU, OJ 2010 L 95/1.

21 The AVMS Directive merely prohibits the placement of tobacco products and medicinal products or medical treatments available only prescription (see Art. 11(4)). On the regulation of product placement on UK television, see Garde, A, “Towards the Liberalisation of Product Placement on UK Television?” (2011) 16 Communications Law 92 Google Scholar.

22 On the UK nutrition profiling model, see www.gov.uk/government/publications/the-nutrient-profiling-model.

23 Member States must ensure compliance with international trade rules, and more specifically the requirement under WTO law that they shall not discriminate against imports. See McGrady, B, Trade and Public Health: Diet, Tobacco and Alcohol (Cambridge University Press, 2011)CrossRefGoogle Scholar.

24 “HFSS Advertising Restrictions: Final Review” (Ofcom, 26 July 2010), stakeholders.ofcom.org.uk/binaries/research/tv-research/hfss-review-final.pdf.

25 Adams, J et al, “Effect of Restrictions on Television Food Advertising to Children on Exposure to Advertisements for “Less Healthy” Foods: Repeat Cross-Sectional Study” (2012) 7(2) PLoS ONE e31578 CrossRefGoogle Scholar.

26 Boyland, E et al, “The extent of food advertising to children on UK television in 2008” (2011) 6 International Journal of Pediatric Obesity 455 CrossRefGoogle ScholarPubMed.

27 Academy of Medical Royal Colleges, “Measuring up report: The medical profession’s prescription for the Nation’s obesity crisis” (AMRC, 2013).

28 Supporting national and regional organisations include the British Heart Foundation, the Association for the Study of Obesity, the British Dietetic Association, the Children’s Food Campaign, the Family and Childcare Trust, the Faculty of Public Health, the Royal College of Paediatrics and Child Health, Heart of Mersey, and the UK Health Forum. The loopholes in the UK regulatory framework have been criticised by a broad range of NGOs, other actors of civil society and parliamentary committees. See in particular: the report commissioned by the government and published by the National Heart Forum (now the UK Health Forum) in June 2011: www.heartforum.co.uk/our-work/policy/nutrition/marketing-food-and-drink-to-children/. See also (listed in chronological order): The House of Lords’ Science and Technology Committee Report, “Behaviour Change” (London, 2011), www.publications.parliament.uk/pa/ld201012/ldselect/ldsctech/179/179.pdf; Sustain’s Report “The Obesity Games – Junk Food Sponsorship of the Olympic Games” (London, 2012), www.sustainweb.org/publications/?id=237; The House of Commons’ Environmental Audit Committee Report on “Sustainable Food” (London, 2012), www.publications.parliament.uk/pa/cm201012/cmselect/cmenvaud/879/879.pdf; Which? Consumer Report, “A Taste for Change?” (London, 2012), www.which.co.uk/documents/pdf/a-taste-for-change---which-briefing---responsibility-deal-305379.pdf; Academy of Royal Medical Colleges’ Report “Measuring Up: The Medical Profession’s Prescription for the Nation’s Obesity Crisis” (London, 2013), www.aomrc.org.uk/publications/statements/doc_download/9673-measuring-up.html; Sustain’s Report “Through the Looking Glass: A Review of Topsy-Turvy Food Marketing Regulations” (London, 2013), www.sustainweb.org/publications/?id=273. See also J Landon, “Regulations and voluntary codes controlling food and drink marketing to children in the UK: an analysis of gaps and weaknesses” (2013) Appetite.

29 Supra note 24.

30 It is true that business actors have made some voluntary commitments to limit the negative impact of the marketing of unhealthy food to children. Nevertheless, the threshold adopted is generally too low for these measures to be effective. In any event, one may question whether self-regulation should be seen as the way forward in this field, as discussed in the contribution above.

31 A Nairn and H Hang, “Advergames, it’s not child play” (Family and Parenting Institute, 2012) p. 15.

32 Scientific Advisory Committee on Nutrition, “Report on Carbohydrates and Health” (July 2015).

33 Public Health England, “National Diet and Nutrition Survey 2014” (14 May 2014).

34 For a more detailed discussion of the sponsorship of sports events by food business actors, see Garde, A and Rigby, N, “Going for Gold – Should Responsible Governments Raise the Bar on Sponsorship of the Olympic Games and Other Sporting Events by Food and Beverage Companies?” (2012) 17 Communications Law 42 Google Scholar. See also Sustain’s Report on “The Obesity Games – Junk Food Sponsorship of the Olympic Games” (London, 2012), available at www.sustainweb.org/publications/?id=237.

35 Framework Implementation Report, p. 9: “The Recommendations refer to the marketing of products and services. They do not refer explicitly to the promotion of brands (as distinct from products and services); however, as certain brands and organizations are clearly associated with products or services whose marketing could fall within the scope of the Recommendations, efforts to restrict marketing in this area also need to consider how brands are marketed”.

36 “Responsibility Deal” (March 2011).

37 “Healthy Lives, Healthy People” (October 2011).

38 ibid.

39 J Landon and Y Gritschneider, “An analysis of the regulatory and voluntary landscape concerning the marketing and promotion of foods and drinks to children” (National Heart Forum, 2010).

40 “Department of Health abandons plans to restrict unhealthy food promotions”, The Grocer (19 April 2014), www.thegrocer.co.uk/home/topics/health/dh-abandons-plans-to-restrict-hfss-food-promotions/356616.article.

41 The issue of conflicts of interests is discussed in a previous contribution above.

42 See for example, “DH wants new Responsibility Deal measures to tackle unhealthy promotions”, The Grocer (18 January 2014).

43 Industry groups quoted in The Grocer (5 October 2013).

44 “Supporting Healthy Choices. A framework for voluntary action” (The Scottish Government 2014).

45 Adams et al., supra note 25; www.bbc.co.uk/news/uk-scotland-17414707.

46 “A Fitter Future for All. Progress Report 2012–14” (DHSSPS, 2014).

47 See for example: “DH wants new Responsibility Deal measures to tackle unhealthy promotions” The Grocer (18 January 2014).

48 “Sugar Reduction – the evidence for action” (Public Health England 2015).

49 House of Commons Health Select Committee, Childhood obesity— brave and bold action, First Report of Session 2015–2016, HC 465, 30 November 2015: www.publications.parliament.uk/pa/cm201516/cmselect/cmhealth/465/465.pdf.

50 “Childhood Obesity: A Plan for Action” (August 2016), available at www.gov.uk/government/uploads/system/uploads/attachment_data/file/546588/Childhood_obesity_2016__2__acc.pdf

51 House of Commons Health Select Committee, Childhood obesity: Follow-up, Seventh Report of Session 2016-2017, HC 928, 27 March 2017: www.publications.parliament.uk/pa/cm201617/cmselect/cmhealth/928/928.pdf.

52 For information on the review process, see www.gov.uk/government/collections/review-of-the-nutrient-profiling-model.

54 A three-month transitional period will apply to advertisers who can demonstrate to the ASA that the media space in question was booked prior to CAP’s announcement on 8 December 2016: see Regulatory Statement, at p. 26.

55 The EU Pledge is discussed in the contribution on conflicts of interests.

56 For guidance on how to identify brand advertising that has the effect of promoting unhealthy food product, see CAP Consultation: food and soft drink advertising to children, Regulatory statement: Annex A.

57 Evidence submitted by the Children’s Food Trust to the House of Commons Health Select Committee, at para. 61 of the Committee’s Report.