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Food Marketing to Children in Sweden and Denmark: a Missed Opportunity for Nordic Leadership

Published online by Cambridge University Press:  21 July 2017

Katharina Ó CATHAOIR
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Abstract

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I Introduction

This contribution evaluates the rules in Sweden and Denmark on marketing of unhealthy food and non-alcoholic beverages to children in light of the WHO Recommendations. The countries are analysed in tandem as, despite similarities in their core legislation on marketing, they have pursued distinct approaches that provide policy makers with interesting insights. In the case of Sweden, one might expect a proactive approach. Sweden is, of course, well-known for its opposition to the commercialisation of childhood – having prohibited television advertising directed at children since the advent of commercial television in the 1990s.Footnote 1 Sweden also unsuccessfully campaigned for an EU-wide ban on television advertising to children.Footnote 2 Danish leadership on the issue is less likely; the country is known for more liberal health policies and laws than Sweden, emphasising individual choice rather than regulating the determinants of health. Footnote 3

However, neither neighbour has remained steadfast in its reputation. While Swedish law imposes restrictive limitations on broadcast advertising to children, it has not kept up to date with modern marketing techniques. Instead, the Swedish case illustrates the necessity of adapting regulations to match technological developments. Alternatively, although the Danish government has also avoided targeted regulation, Danish industry has designed a self-regulatory code to limit unhealthy food marketing to children. Accordingly, while neither country should be lauded for providing comprehensive protection to children, their approaches offer experts and advocates valuable insights into the respective strengthens and weaknesses of two distinct, yet interconnected, approaches.

The analysis examines Swedish and Danish laws and policies in light of the WHO Recommendations. The accompanying Framework for Implementing the Set of Recommendations (produced two years later to assist states in policy development, implementation, and monitoring, evaluation and research) is drawn on to elucidate the meaning of the Recommendations.Footnote 4

In section II, the prevalence of overweight and obesity in children in Sweden and Denmark is outlined. Section III analyses Danish and Swedish policy approaches to unhealthy food marketing as a modifiable risk factor of overweight and obesity. Section IV evaluates key issues in the regulatory regimes in both states with reference to criteria suggested in the WHO Recommendations. Section V analyses policy implementation with regard to the states’ roles and the sufficiency of existing enforcement mechanisms. In Section VI, the extent to which Sweden and Denmark monitor and evaluate their policies on unhealthy food marketing is assessed with reference to process, output and outcome indicators. Finally, suggestions are made for how both countries could better entrench the WHO Recommendations and thereby increase protection for children from unhealthy food marketing.

II Prevalence of overweight and obesity in Sweden and Denmark

While rates of childhood overweight and obesity are significantly lower in Sweden and Denmark than in other European states, their increased prevalence is a cause of concern for both the Swedish and Danish governments.Footnote 5 The number of children in Sweden and Denmark that are overweight and obese has risen over the last 30 years. While data is far from comprehensive, in 2013, the Danish Health Ministry estimated that 5–8% of 3–4-year-olds, 21% of 6–8-year-olds and 18% of 14–16-year-olds were overweight.Footnote 6 Sweden has better data on childhood obesity, having taken part in the WHO European Childhood Obesity Surveillance Initiative (COSI). The 2007/2008 results showed that 23.5% of boys and 22% of girls aged 7 years were overweight, with 6.8% of boys and 5.1% girls obese; in 8-year-olds rates of overweight and obesity in boys and girls were 26.3% and 23.5 %, and 9.7% and 6.8%, respectively.Footnote 7

III The role of unhealthy food marketing in Swedish and Danish obesity prevention policies

Health policies in Sweden and Denmark identify unhealthy diets as an important modifiable risk factor of overweight and obesity, as children’s diets in both countries do not match dietary recommendations. In Denmark, 80% of children eat too much fat and sugar, and consume too little fruit and vegetables when assessed with reference to the Ministry for Food Guidelines.Footnote 8 Children’s excessive sugar consumption from sweets and sugary beverages is a particular cause of concern.Footnote 9 Swedish children also consume large amounts of sugar: in 2013–2014, 46% of girls and 47% of boys aged 15 years of age reported eating sweets two to four times a week.Footnote 10 In order to address these concerns, both Sweden and Denmark have adopted national targets for obesity prevention and healthy eating. In 2014, Denmark set seven targets for improving Danish health, including two related to overweight and obesity: fewer children should become overweight and more should be active in daily life. The overarching national goal is to reduce the number of children aged 14–15 that are overweight by 10%, and to increase the number of physically active children between 11 and 15 years by 10%.Footnote 11 Although Sweden does not have a national policy on overweight and obesity, two of its national public health policy objectives are to promote healthy eating and increase physical activity.Footnote 12

With unhealthy eating in focus, health policies in both Sweden and Denmark have recognised food marketing as a factor that promotes overweight and obesity. The 2003 Danish National Action Plan on overweight asserts that there is probable evidence that heavy marketing of energy dense and fast food heightens the risk of overweight in children.Footnote 13 Accordingly, the Plan issued a non-binding recommendation to the government to introduce stricter rules on television advertising and marketing to children. The Plan further stresses that the public sector has a responsibility to shape norms and standards that encourage healthy food choices in children, young people and parents. This duty includes protecting children from marketing of soft drinks and candy, and increasing the competence of children and parents to resist marketing pressure.Footnote 14 However, clear benchmarks on how to achieve this are absent. While Sweden does not have a national obesity policy, municipalities have adopted individual plans. Stockholm’s regional policy finds that there is evidence that marketing of unhealthy food and drinks has a negative influence on good eating habits and is a causal factor of obesity, although no specific recommendations are made.Footnote 15

Yet, despite early recognition of the impact of marketing, neither country has established clear goals in relation to unhealthy food marketing and regulation is no longer an obvious priority. Instead, both states increasingly gravitate towards private action as an alternative to regulation. The latest Danish national report from 2014 has taken a different approach to the advice given in the 2003 Action Plan. Now, food marketing is only referred to in terms of a private sector responsibility. The report does not make any recommendations or set targets; instead, it simply states that companies have agreed to voluntary stricter agreements on marketing of unhealthy food.Footnote 16 The 2012 Swedish public health policy suggests a similar approach; it recommends establishing a national network for health promotion to limit obesity through collaboration with various partners. The food industry is highlighted as an important partner in limiting marketing, suggesting support for private sector rules.Footnote 17

Further, Sweden and Denmark co-operate regionally and internationally to reduce overweight and obesity, although they have not agreed on a binding governance regime to reduce marketing to children. Instead, at the regional level, the Nordic countries actively co-operate through multiple fora, such as the Nordic Council of Ministers and the WHO European Action Network on reducing marketing pressure on children. In its 2003 Plan of Action on better health and quality of life through diet and physical activity, the Nordic Council recognised that unhealthy food marketing impacts on children’s consumption and attitudes towards food, and emphasised that effectively regulating unhealthy marketing requires limitations at EU or international level.Footnote 18 However, no specific targets or pledges to revise regulation were adopted. The European Action Network (established in 2008) is not an intergovernmental group, but participants are usually representatives from the relevant national public health department or nominated by government.Footnote 19 The network has recently proposed Nordic monitoring of food marketing in the region, although details are not yet publicly available.Footnote 20

IV Key issues in regulating unhealthy food marketing

The WHO Recommendations call on states to limit unhealthy food marketing through developing targeted policy aims and objectives, and setting clear definitions in policy making. While states may pursue both stepwise and comprehensive policies, they should define important components of the rules: the age used to define children, the communications channels and techniques covered, when marketing is directed at children and what foods are regarded as healthy/unhealthy. In doing so, the Framework proposes that states conduct situation analyses on the extent of unhealthy marketing to children, and on the sufficiency of existing regulations.Footnote 21 This will provide states with evidence on whether new or updated regulations are necessary to limit the impact of unhealthy marketing on children.

1 What is unhealthy food?

When designing limits on unhealthy food marketing, WHO recommends that states use nutrient profiling to delineate between healthy and unhealthy food. As Swedish broadcasting law forbids all marketing directed at children under 12 years, no nutrient profiling is used. Although Danish state-led regulation does not classify foods, the Danish industry code has adopted its own nutrient profile. The Danish Code uses categories to delineate which food cannot be marketed to children. For instance, cakes and biscuits cannot contain more than 10g of fat or sugar per 100g; beverages cannot contain any sugar.Footnote 22 An independent evaluation found that the design of nutrient profiles has an important impact on what food can be advertised, with the Danish model ranked most restrictive when compared with four other nutrient profiles.Footnote 23 Accordingly, WHO Europe has adopted a nutrient profile to assist Member States in delineating food, which incidentally was inspired by the Danish nutrient model.Footnote 24

2 The aims and objectives of the marketing policies

Although the WHO Recommendations urge states to reduce the impact of unhealthy food marketing on children, neither Denmark nor Sweden has taken specific legal or policy action to enshrine this aim. A similar basic legal framework is in place in both states: broadcast advertising is governed by the Radio and Television Broadcasting Acts, while marketing is regulated by the Marketing Practices Act.Footnote 25 These laws have not been substantially updated to reflect the aims of the WHO Recommendations.

The Danish approach is stepwise: legislation provides a basic framework that is supplemented by self-regulation. While Danish law makes a brief reference to unhealthy food and beverage marketing (“advertisements for food such as chocolate, sweets, soft drinks, snacks, and similar products should not suggest that they may replace regular meals”), this is an isolated pronouncement.Footnote 26 Instead, Danish legislation is supplemented by an industry code – The Code of Responsible Food Marketing to Children (hereafter, the Danish Code).Footnote 27 The stated aim of the Danish Code focuses on the level of advertising directed at children, not children’s actual exposure to marketing and the power of marketing, as specified in the WHO Recommendations.Footnote 28 A further aim of the Code may be to avoid state-led regulation. In 2007 members of a Danish opposition party made a proposal to introduce a new law designed to limit the impact of unhealthy food marketing on children under 16 years.Footnote 29 Soon afterwards, the Forum was established and law reform was never pursued.

At the same time, although existing Swedish and Danish legislation does not seek to limit unhealthy food marketing specifically, it does aim to reduce children’s exposure to, and the power of, marketing to children generally. Firstly, the Swedish Broadcasting Act intends to limit exposure by prohibiting advertising directed at children under 13 years.Footnote 30 The Marketing Acts in both countries also provide children with protection from exposure to direct marketing. For instance, marketers in Sweden are prohibited from sending promotional mail directly to children under 16 years.Footnote 31 Swedish marketing law has been supplemented by a self-regulatory code, although it does not aim to limit unhealthy marketing, but to ensure that digital marketing meets international standards.Footnote 32

Secondly, both countries recognise children’s particular vulnerabilities to the power of certain harmful marketing techniques. The Marketing Acts place an obligation on economic actors to exercise “good marketing practice” for the benefit of consumers, other businesses and the public interest.Footnote 33 Danish law requires marketing directed at children under 18 years to have regard “to their natural credulity and lack of experience and critical awareness, as a result of which they are readily influenced and easy to impress”.Footnote 34 Pursuant to this law, the Danish Consumer Ombudsman has issued non-binding guidelines on children, young people and marketing, inspired by the International Chamber of Commerce’s Guidelines on Marketing to Children.Footnote 35 While the Swedish Marketing Act does not expressly identify children as a vulnerable group, the Market Court has interpreted “good marketing practice” to mean that companies must avoid using certain techniques when marketing to children. For example, internet games that urge children to “buy” and “buy more” have been considered an aggressive sales method and are therefore prohibited.Footnote 36

Accordingly, while Swedish and Danish legislation has not been amended to address the recommended policy aims, existing protections impose some limitations that restrain the content and frequency of marketing directed at children. In Sweden, children’s exposure to broadcast advertising is curtailed, and in both jurisdictions the power of marketing is curbed. Therefore, the impact of unhealthy food marketing on children is indirectly, albeit insufficiently, limited.

3 Age categories

The Swedish and Danish rules apply inconsistent thresholds to define children. Under Swedish broadcasting law, children are aged under 12 years, whereas the standard “good marketing practice” found in the Marketing Act has been interpreted by the Market Court to mean that children under 16 years should be protected from direct marketing.Footnote 37 In Denmark, self-regulation only protects children aged under 13 from direct exposure to marketing, whereas the provisions of the Marketing Act apply to children aged under 18 years.Footnote 38 The lack of standardised age thresholds may provide inconsistent protection for children and simultaneously prove confusing for marketers. Further, lower age limits like 12 and 13 years are of concern. There is an overlap between the media that appeals to children of similar ages, meaning that younger children may view marketing designed for older children. Therefore, upper age limits are more likely to provide comprehensive protection from the impact of marketing, as they will capture children falling near the edges of the age limits. Furthermore, research suggests that when regulation targets pre-teens, companies move their marketing practices towards the teenage and young adult markets instead.Footnote 39

4 Communication channels

Marketing is transmitted to children through a variety of mediums, including broadcast and non-broadcast. Still, under Swedish and Danish law, specific broadcast rules apply to television and radio advertising, while different rules apply to marketing through non-broadcast media. Conversely, the Danish industry code applies to some forms of both broadcast and non-broadcast marketing: television and radio programmes, company homepages, social media, comics and text messages.Footnote 40 Still, sponsorship, packaging or branded items, and outdoor advertising are excluded despite evidence that companies in some jurisdictions use these media to promote unhealthy food to children.Footnote 41 Therefore, different protections apply depending on the medium that marketers use to promote unhealthy food.

Further, with the explosion of digital marketing, advertising is not welded to one jurisdiction and can be transmitted from around the world.Footnote 42 However, under EU law, national restrictions only apply to broadcasts emanating from within the Member State.Footnote 43 Following the country of origin principle under the Audiovisual Media Services Directive, Member States cannot impose secondary restrictions on media broadcast from another Member State.Footnote 44 Further, Member States seeking to limit marketing of foreign products must comply with EU free movement law.Footnote 45

Under Swedish law there is some recognition of the borderless nature of modern media, however it is likely insufficient to address cross-border marketing. There are specific exceptions to the country of origin principle: if a TV broadcaster wholly or primarily directed at Sweden, established in another EEA state, transmits advertising directed at children to Sweden, the regulatory authority in Sweden will contact the relevant authority in the other state and request that it complies with Swedish law. If the broadcaster fails to comply, and in the event that he has established himself in order to avoid the stricter rules, the authority may take action after notifying the European Commission and relevant EU Member State.Footnote 46 Further, as the Danish Code is self-regulatory, there is scope for the Forum to create voluntary agreements with advertisers in other Member States to limit the cross-border impact of unhealthy food marketing on children without contravening EU free movement law.

5 Marketing directed at children

The regulatory systems in both countries use different criteria to assess whether marketing targets children. In Sweden, advertising in broadcast media may not be scheduled during, after or before children’s programming times, i.e. programmes designed for children under 13 years. The Swedish Market Court establishes compliance with the law through examining, inter alia, whether techniques to attract children’s attention are used.Footnote 47 Under the Danish industry code, television advertising is not allowed during children’s viewing times, i.e. when they watch television in the greatest numbers. Further, advertising should not appeal to children, which is assessed through examining the content of the advertisement, the presence of children in the advertising, the time of broadcasting, and expected/ actual users.Footnote 48 However, complaints decided by the Swedish Market Court emphasise that the mere fact that advertising appeals to children is not sufficient to render it inappropriate. Instead, if advertising takes place during family viewing times, it may be lawful as long as it does not appeal to children specifically. In one complaint, the fact that the advertiser used clay penguins to market ice-cream did not render the advertisement unlawful, i.e. directed at children.Footnote 49

Likewise, in the context of non-broadcast marketing, special protections only apply to media targeting children, for example, magazines or websites that offer content or promote marketing directly to children. Accordingly, marketing outdoors or on social media that does not primarily appeal to children is not restricted.Footnote 50 This leaves marketers free to advertise unhealthy food to parents using a wider range of techniques. Although it is outside the scope of this piece to discuss this in detail, this may place a heavy burden on parents. Also, it may mean that children are exposed to more advertising outside of their viewing times.

6 Marketing techniques

As discussed in section IV.2, Swedish and Danish marketing rules prohibit certain promotional techniques used by marketers to promote products to children. In both countries, product placement directed at children is prohibited.Footnote 51 Furthermore, Swedish broadcasting law proscribes advertisers using characters and celebrities featured in children’s programming to promote products to children on television, Teletext and on-demand commercials.Footnote 52 However, Swedish and Danish marketing rules do not specifically prohibit other promotional techniques used to market unhealthy food that may exploit children’s natural credulity and emotional attachment. Techniques such as use of premium offers, brand characters, advergames and gifts are not expressly prohibited.Footnote 53 Furthermore, Danish law does not prohibit using characters or celebrities in promotions. Still, these techniques may fall foul of “good marketing practice” under the Marketing Act. However, this has not been decided yet, as there have not been any cases centring on these techniques to date. Furthermore, while the Ombudsman has the power to instigate proceedings and issue guidelines on acceptable marketing techniques, she has not been proactive in addressing unhealthy food marketing.

Similarly, the WHO Recommendations stipulate that unhealthy food marketing should be limited in places where children gather, such as schools, day care and after-school activities. While neither Swedish nor Danish law prohibit marketing in child-specific settings, the various municipalities and individual schools can draw up rules to limit marketing in their sphere. For instance, the Danish overweight prevention policy calls on day care institutions to promote a culture of healthy eating and physical activity.Footnote 54 Therefore, it could be argued that in order to ensure such a culture, institutions should prohibit unhealthy food marketing.

Furthermore, the provisions of the Marketing Acts apply in school settings. The Danish Ombudsman considers that any form of marketing in schools is contrary to good marketing practice.Footnote 55 This is not specific to unhealthy foods; in one instance the Ombudsman ordered Cartoon Network to stop using fruit for promotional purposes. The company had sponsored a campaign whereby stickers from different characters were placed on children’s fruit in school, with the goal that the child would receive a gift after collecting 20 different stickers. Following the Ombudsman’s intervention, the campaign was stopped.Footnote 56 The Danish Ombudsman also encourages creating mandatory media skills courses in schools to enable children to mitigate the impact of marketing.Footnote 57

V Effective implementation

Robust policy cannot be effective without strong implementation procedures that enshrine government leadership and monitor compliance. Effective enforcement should include sanctions for non-compliance and compensation for victims where breaches are found.

1 State responsibilities

The WHO Recommendations are not prescriptive; states should choose what they consider to be the most effective regulatory design to reduce the impact of unhealthy marketing, including statutory regulation, industry rules or a mixture. Governments should be steered by what is the most effective approach in light of national circumstances. However, the Recommendations assert that regardless of whether regulation is statutory or not, governments should still act as stakeholders in implementation.

Despite early recognition of the potential for food marketing to contribute to child overweight and obesity, neither Sweden nor Denmark has acted as a key stakeholder in developing laws and policies to limit the impact of unhealthy marketing. Although both states have introduced strong legal frameworks that impose restraints on marketing, this statutory regulation does not address unhealthy food and beverage marketing specifically. While efforts have been made to achieve multisectoral engagement, the governments do not adopt leadership roles through steering national objectives. The Danish Code is a collaboration between industry partners such as advertisers, and food and beverage companies, led by Danish Industry – a private organisation funded by Danish companies. The only role that Danish government actors play in relation to the industry code is as an observer – a position that lacks teeth or implementation powers.Footnote 58 Other stakeholders, like civil society, academia and the public do not appear to play an overt role in monitoring food and beverage marketing or holding the government to account.

2 Enforcement mechanisms

There is a stark contrast between the systems that monitor statutory and industry regulation. Swedish and Danish marketing and broadcast legislation provide clear mechanisms for establishing violations, imposing sanctions and awarding redress. The Danish Radio and Television Board monitors broadcasting and has the power to withdraw a licence or provide for the temporary or permanent discontinuation of programme services if the licensee, inter alia, grossly or frequently infringes the Act.Footnote 59 Under the Danish Marketing Act, the Consumer Ombudsman monitors compliance with good marketing practice.Footnote 60 Similarly, under Swedish law, the Swedish Consumer Ombudsman ensures that industry does not direct advertising at children.Footnote 61 Such advertising is unfair and can be subject to a fine of between 5,000 and 5 million SEK, but not more than the advertiser’s annual turnover.Footnote 62 A broadcaster’s licence may be revoked where it has “materially contravened” the section.Footnote 63 The Court should have regard for the duration and gravity of the infringement in determining the appropriate sanction.Footnote 64

Despite the powerful sanctions available, the primary aim of an Ombudsman is not to punish, but to achieve enforcement.Footnote 65 Therefore, the Ombudsman initially negotiates with businesses to ensure that they voluntarily remove illegal marketing.Footnote 66 The Ombudsman can also provide an “advance indication” on planned marketing campaigns to avoid later conflict.Footnote 67 Furthermore, she has duties to empower the public through information on matters that are of general interest or importance to marketing law.Footnote 68 However, the Ombudsman can issue an enforcement notice, ordering a marketing campaign to be stoppedFootnote 69 and also instigate legal proceedings.Footnote 70 Therefore, multiple methods of enforcement are available depending on the specifics of the case.

In contrast, the Danish Forum applies a sporadic system of enforcement that rests on peer-to-peer monitoring. The Forum releases what are termed “annual” reports (although only irregularly on its website) where it evaluates members’ compliance with the Code. It is positive to note that the Forum reports that food commercials directed at children under 12 years have essentially disappeared from television directed at children.Footnote 71 However, TV2 is the only channel that follows the Code, as the only commercial channel to broadcast from Denmark.

The Forum’s monitoring of other forms of marketing is neither systematic nor transparent. The available monitoring reports do not outline a consistent methodology. A concrete list of the promotional materials reviewed by the Forum is not provided. Instead, members conduct “spot checks” on food advertisements in newspaper supplements and magazines aimed at children, on websites directed at children and websites of food and beverage companies. Also, the Forum does not review social media that is not directed at children under 13 years, such as Facebook, despite evidence that it is accessed by a large number of children under 13 years.Footnote 72 Finally, companies that contravene the Danish Code are not subject to sanctions for non-compliance. Although public complaints are possible through the Code’s website, member companies are not named and shamed, thus undermining the frequent claim that self-regulation can provide a reputational sanction.

VI Policy Monitoring and Evaluation

Lastly, the WHO Recommendations urge states to monitor and evaluate their policies on unhealthy food marketing. States are encouraged to measure effectiveness through defining indicators that measure process, output and outcomes.Footnote 73 While neither country reports using indicators to monitor unhealthy food marketing, a preliminary assessment of the rules in both states in relation to relevant indicators is conducted below.

Firstly, both Denmark and Sweden have regulatory processes in place to limit marketing. However, the regulatory frameworks do not expressly restrict some of the techniques that marketers of unhealthy products use to target children, or target children’s exposure to non-broadcast marketing. Furthermore, neither state seems to gather data mapping school or local government policies that limit food marketing to children.

Secondly, in terms of output, little independent data is available on the level of food marketing that children are exposed to, the power of the techniques employed and the effectiveness of existing regulations. The Danish Code only measures the absence or presence of advertising in certain media, not children’s actual exposure or the prevalence of techniques. Researchers can gather more coherent data through conducting content analyses of television advertising over a 48-hour period, including a week day and weekend to account for variations. This would establish what advertising is shown and when. While internet advertising is more difficult to comprehensively map, the Danish Forum seems to only review a very limited number of websites. Data collection could be usefully expanded through monitoring the websites that children frequently access, not only those designed for them.

Thirdly, a review of the publicly-available complaints to the relevant monitoring bodies was conducted to help to measure industry compliance and public awareness. Only two complaints with a link to unhealthy food marketing were found; both are decisions of the Danish Radio and Television Board.Footnote 74 This may mean that there is little advertising of unhealthy food products to children in these two jurisdictions. Alternatively, complaints may be limited due to a lack of awareness on the part of individuals and organisations, or the imprecision of current standards. Complaints made to the Danish self-regulatory system could not be evaluated as no data is made publicly available on the number of complaints or how breaches were decided. While the Forum’s 2014 report mentions finding violations – four in the case of websites – it does not provide the total number reviewed.Footnote 75

Finally, in relation to outcome indicators, both Denmark and Sweden collect data on eating habits and dietary patterns, as well as prevalence of overweight and obesity. However, neither state appears to systematically gather data on the prevalence and nature of food marketing over time.

VII Evaluation of Unhealthy Food Marketing Regulations in Sweden and Denmark

It is clear from the analysis that both Sweden and Denmark could better entrench the WHO Recommendations in their laws and policies. While the WHO Recommendations do not prescribe a particular approach, the fact that the countries have made little progress, while simultaneously pledging to end childhood obesity, suggests current regulation is insufficient. To better entrench the Recommendations, both governments should act as stakeholders in designing more targeted policies, laws and monitoring mechanisms.

In terms of policy rationale, both states could set a clear policy goal to limit the impact of unhealthy food marketing on children and develop indicators to measure compliance. Neither county has made firm commitments to limit the impact of unhealthy food marketing, despite recognising its effect on children’s relationship with food. In Sweden, this means business as usual, with no updates to the law, despite increases in obesity and the growth of online marketing. Sweden has not developed a clear policy to address broader unhealthy food promotion. While broadcasting law comprehensively limits marketing to children under 12 years on television and radio, this limitation does not apply to non-broadcast media. Even the Danish industry Code does not specifically aim to reduce the impact of unhealthy food marketing on children. The impact of the industry code could be strengthened should Danish ministries for health or food adopt a clearer stakeholder role, instead of merely acting as an observer. A first step would be for government bodies to bring the WHO Recommendations to the attention of the Forum and advise that it amend its aims to reflect international standards.

In order to develop effective policy, greater monitoring and evaluation is necessary. Monitoring bodies should gather, and encourage the collection of, better data on the impact of food marketing, including children’s direct and indirect exposure. A broad definition of child-directed marketing should be invoked to ensure that children’s actual exposure is catalogued. A variety of mediums and settings should be included in the definition of marketing, including but not limited to television, outdoor advertising, day care and online marketing. In order to develop a clear picture, marketing should also include packaging and in-store displays. Furthermore, the specific techniques used to target children should be studied.

Monitoring could be strengthened through multiple stakeholders gathering better data on the enforcement of the rules, including complaints received, and the manner in which they are adjudicated. A systematic methodology should be designed for monitoring non-compliance. From the perspective of government responsibility, this includes greater monitoring of industry, including through setting benchmarks and indicators. Further, the respective Ombudsmen could also pursue greater engagement with food marketing, including through developing specific standards that relate to unhealthy food marketing and performing a more pronounced monitoring role. Industry could show its commitment through releasing data on advertising expenditure and on marketing campaigns directed at parents and children. Additionally, the Danish Forum could commission an independent review of its Code, as other self-regulatory pledges have done.Footnote 76 Academics, civil society and individuals should assist in monitoring and advocacy.

While ultimately the respective legislatures are responsible for how they implement the Recommendations, there are both legal and pragmatic reasons for Sweden and Denmark to go further. Given that both countries recognise the gravity of obesity and the impact of unhealthy product marketing, it is in their interests to review their compliance with the WHO Recommendations, and strengthen protection for children accordingly. Further, although the WHO Recommendations are non-binding and states are not legally compelled to implement, they have persuasive weight, having been endorsed by the World Health Assembly.

Furthermore, Sweden and Denmark have undertaken legally-binding obligations to ensure children’s rights to the highest attainable standard of health and adequate food, having ratified the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. Under the CRC, states have obligations to combat disease, malnutrition, and epidemics, including through the provision of adequate food and clean water, and to develop preventative health-care. Under the ICESCR, states parties must take steps inter alia, to promote the healthy development of the child, and the prevention, treatment and control of epidemic, endemic, occupational and other diseases.Footnote 77 In order to ensure comprehensive fulfilment of their obligations to protect children’s rights, Sweden and Denmark should pursue effective implementation of the WHO Recommendations.

VIII Conclusion

This contribution mapped and evaluated the regulatory regimes that govern unhealthy food and non-alcoholic beverage marketing to children in Sweden and Denmark. Although both countries recognise children as vulnerable and in need of special protection from marketing, neither has fully embraced the standards set out in the WHO Recommendations. Given that both states aim to reduce childhood obesity and promote healthy diets, restricting marketing of unhealthy products should be an important component of their approach. Both states could go further through developing clearer objectives, greater mapping of unhealthy marketing and strengthening mechanisms for monitoring and evaluation. Both countries could look to past experiences of regulating the marketing of products such as tobacco, alcohol and breast milk substitutes for inspiration.Footnote 78

Footnotes

*

PhD., Law Fellow, O’Neill Institute for National and Global Health, Georgetown University. This article builds on research conducted as part of my PhD dissertation “A Children’s Rights Approach to Obesogenic Marketing”, which was funded by Governing Obesity, University of Copenhagen, katharina.o.cathaoir@jur.ku.dk.

1 The Swedish television advertising ban became well-known due to the case: Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB (C-34/95) and TV-Shop i Sverige AB (C-35/95 and C-36/95), EU:C:1997:344.

2 Renée Cordes, “Swedish call for ban on TV advertising to children faces defeat” (Politico, 2000) www.politico.eu/article/swedish-call-for-ban-on-tv-advertising-to-children-faces-defeat/, accessed 29 January 2017.

3 Vallgårda, Signild, “Addressing individual behaviours and living conditions: Four Nordic public health policies” (2011) 39 Scandinavian Journal of Public Health 6 .

4 World Health Organisation, “A Framework for Implementing the Set of Recommendations on the Marketing of Foods and Non-Alcoholic Beverages to Children” (WHO, 2012) p. 7.

5 Ahrens, W and others, “Prevalence of overweight and obesity in European children below the age of 10” (2014) 38 Suppl 2 International Journal of Obesity (2005) S99 .

6 Ministry for Health, Forebyggelsespakke: Overvægt (Prevention Package: Overweight) (2013) p. 8.

7 Wijnhoven, TM and others, “WHO European Childhood Obesity Surveillance Initiative 2008: weight, height and body mass index in 6-9-year-old children” (2013) 8 Pediatric Obesity 79 .

8 Ministry for Health and Prevention, Sundere liv for alle: nationale mål for danskernes sundhed de naeste 10 år (Healthier Lives for all – national targets for Danes health in the next ten years) (2014) p. 16.

9 Ministry for Health, Oplaeg til National Handlingsplan mod Svaer Overvaegt: forslag til loesninger og perspektiver (Outline for national action plan against obesity: proposals for solutions and perspectives) (2003) p. 9.

10 Svensson, A and others, “European children’s sugar intake on weekdays versus weekends: the IDEFICS study” (2014) 68 European Journal of Clinical Nutrition 822 .

11 Sundere liv for alle, supra note 8, pp. 16–19.

12 Ministry of Social Affairs, En Förnyad folkhälsopolitik (A renewed Public Health Policy) (Sweden, 2008).

13 Oplaeg til National Handlingsplan mod Svaer Overvaegt, supra note 9, p. 22.

14 Ibid, p. 26.

15 Health Administrator/County Council Stockholm, Så kan vi vända trenden: Handlingsprogram övervikt och fetma 2016-2020 (How can we reverse the trend: Action plan on overweight and obesity 2016-2020) (2015) pp. 60–61.

16 Sundere liv for alle, supra note 8, p. 21.

17 Ministry of Social Affairs, En Folkhälsopolitik med människan i centrum, regeringens skrivelse (Public health policies with people in mind: Government Communication) (Denmark, 2012) p. 20.

18 Nordic Council of Ministers, Nordic Plan of Action on better health and quality of life through diet and physical activity, 2006) p. 41.

19 Network on reducing marketing pressure on children, “Report from the 9th Meeting, Bern, Switzerland, 31 March – 1 April 2014” (Norwegian Directorate of Health, 2014).

20 World Health Organisation (Europe), Tackling Food Marketing to Children in a Digital World: Trans-Disciplinary Perspectives (Copenhagen, WHO, 2016) p. 22 .

21 A Framework for Implementing the Set of Recommendations on the Marketing of Foods and Non-Alcoholic Beverages to Children, supra note 4, p. 13.

22 Forum of Responsible Food Marketing Communication, Code of Responsible Food Marketing Communication to Children (Denmark, 2014).

23 Brinsden, H and Lobstein, T, “Comparison of nutrient profiling schemes for restricting the marketing of food and drink to children” (2013) 8 Pediatric Obesity 325 .

24 WHO Europe, WHO Regional Office for Europe Nutrient Profile Model (2015).

25 Sweden: Marknadsföringslagen (Marketing Act) (hereafer Swedish Marketing Act) SFS 2008:486; Radio- och tv-lag (Radio and Television Act) (hereafter Swedish RT Act) 2010:696; Denmark: Lovbekendtgørelse nr 1216 af 25/09/2013 om markedsføring, (Marketing Act) (hereafter, Danish Marketing Act), Lovbekendtgørelse nr 255 af 20/03/2014 om radio- og fjernsynsvirksomhed, (Radio and Television Broadcasting Act) (hereafter, Danish RT Act).

26 Bekendtgørelse nr 801 af 21/06/2013 om reklamer og sponsorering m.v. af programmer i radio, fjernsyn og on demand-audiovisuelle medietjenester samt indgåelse af partnerskaber (Order on advertising and sponsorship, etc. of programs on radio, television and on-demand audiovisual media services as well as entering into partnerships (hereafter: Order on advertising and sponsorship, etc.), s. 21, available (in Danish) at www.retsinformation.dk/forms/r0710.aspx?id=152695.

27 Code of Responsible Food Marketing Communication to Children, supra note 22.

28 ibid, p. 2.

29 The Danish Parliament, Forslag til folketingsbeslutning om forbud mod markedsføring af usunde føde- og drikkevarer til børn under 16 år (Proposal for a bill prohibiting the marketing of unhealthy foods and beverages to children under 16 years) (2007) 2006/1 BSF 151 (10-04-2007), available (in Danish) at www.retsinformation.dk/eli/ft/20061BB00151.

30 Swedish RT Act, supra note 25, ch. 8:3.

31 Swedish Marknadsdomstolen Dom (Market Court) (hereafter MD) 1999:26.

32 See Reklamombudsmannen, www.reklamombudsmannen.org.

33 Swedish Marketing Act, supra note 25, s. 5; Danish Marketing Act, supra note 25, s. 1(1).

34 Danish Marketing Act, supra note 25, s. 8(1).

35 Office of the Consumer Ombudsman, Børn, Unge Og Markedsføring Vejledning (Guidance on Children, Young People and Marketing) (Copenhagen, 2014).

36 MD 2012: 14.

37 Swedish RT Act, supra note 25, ch. 8:3.

38 Danish Marketing Act, supra note 25, s. 8(3).

39 Jennifer L Harris and others, Measuring Progress in Nutrition and Marketing to Children and Teens (Fast Food Facts, 2013) p. vii.

40 Code of Responsible Food Marketing Communication to Children, supra note 22, p. 7.

41 Ibid, p. 8.

42 Cairns, G and others, “Systematic Reviews of the Evidence on the Nature, Extent and Effects of Food Marketing to Children. A Retrospective Summary” (2013) 62 Appetite 209 ; Kathryn Montgomery and others, Food Marketing in the Digital Age: A Conceptual Framework and Agenda for Research (2011).

43 Judgment of the Court of 9 July 1997, Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB (C-34/95) and TV-Shop i Sverige AB (C-35/95 and C-36/95), EU:C:1997:344.

44 Directive 2010/13/EU of the European Council and the European Parliament of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services OJ L 95-1, Art. 4.

45 See further, Craig, P, EU Administrative Law (Oxford University Press, 2012) chs. 19 and 20.

46 Swedish RT Act, supra note 25, ch. 16:15.

47 MD 1993:13.

48 Code of Responsible Food Marketing Communication to Children, supra note 22, section 5.

49 Konsumentombudsmannen (KO) v Hemglass Sverige Marknadsdomstolen 2002:31, available at www.marknadsdomstolen.se/Filer/Avg%C3%B6randen/Dom02.31.pdf (in Swedish).

50 Børn, Unge Og Markedsføring Vejledning (Guidance on Children, Young People and Marketing), supra note 35, p. 12.

51 Danish RT Act, s. 85 prohibits product placement; product placement is restricted in Sweden with certain excepions (although these do not apply to programmes directed at children under 12 years) (see Swedish RT Act, supra note 25, ch. 6).

52 Swedish RT Act, supra note 25, ch. 8:8.

53 Jenkin, G and others, ‘A systematic review of persuasive marketing techniques to promote food to children on television’ (2014) 15 Obesity Reviews : an official journal of the International Association for the Study of Obesity 281 .

54 Forebyggelsespakke: Overvægt, supra note 6, p. 19.

55 Børn, Unge Og Markedsføring Vejledning, supra note 35, p. 12.

56 Consumer Agency, Forbruger Jura (Consumer Law) (Denmark, 2004) pp. 25–26.

57 Office of the Consumer Ombudsman, ‘Matematikbøger med billeder af mærkevarer (Maths books with pictures of brands), Case no. 2000-989/5-643 (Denmark, 2004), www.forbrugerombudsmanden.dk/Find-sager/Markedsfoeringsloven/Sager-efter-markedsfoeringsloven/boernogunge/matematikboeger?SC_itemid=97e7d493-000a-4891-8100-221e3eb836f6, accessed 30 January 2017.

58 Forum of Responsible Food Marketing Communication, Status of Forum of Responsible Food Marketing Communication 2014 (Denmark, 2014) p. 4, available at kodeksforfoedevarereklamer.di.dk/SiteCollectionDocuments/Forum%20for%20f%C3%B8devarereklamer%20folder%20UK_2014.pdf.

59 Lovbekendtgørelse nr 255 af 20/03/2014 om radio- og fjernsynsvirksomhed (Radio and Television Broadcasting Act), ss. 50(1), 50(2)(1), available (in Danish) at www.retsinformation.dk/forms/r0710.aspx?id=161625.

60 Denmark, MFL, supra note 25, s. 22(1).

61 Swedish RT Act, supra note 25, ch. 16:4.

62 ibid ch. 17:9, s. 31.

63 ibid ch. 18:2.1.

64 ibid s. 32.

65 Bo Madsen, Palle, Markedsret Del 2 (Vol 2) (5th edn, Denmark, Djøf, 2007) p. 25 .

66 Lovbekendtgørelse nr. 1249 af 25/11/2014 om regler for Forbrugerombudsmandens virksomhed (Order on the rules for Consumer Ombudsman), s. 1(3), available (in Danish) at www.retsinformation.dk/Forms/R0710.aspx?id=164810.

67 Danish Marketing Act, supra note 25, s. 29(1).

68 Rule for Consumer Ombudsman, supra note 66, s. 2.

69 Danish Marketing Act, supra note 25, s. 27(2).

70 ibid s. 27(1).

71 Status of Forum of Responsible Food Marketing Communication 2014, supra note 58, p. 6.

72 Livingstone, Sonia, Ólafsson, Kjartan, and Staksrud, Elisabeth, Social Networking, Age and Privacy (London, EU Kids Online, 2011).

73 A Framework for Implementing the Set of Recommendations on the Marketing of Foods and Non-Alcoholic Beverages to Children, supra note 4, p. 44.

74 Radio and tv board, complaint regarding advertisement for Coca-Cola aired on SBS NET (Radio-og TV-Nævnet, København, 26 March 2008 “Klage over tv-reklame for Coca-Cola sendt på SBS Net”); Radio and tv Board, Complaint regarding misleading television advertisement for Nutella aired on TV2 (Radio- og tv-nævnet, “Klage over Vildledende Tv-Reklame for ”Nutella” Sendt På Tv 2,” in Sagsnr.: 2011-023744 (3 april 2012).

75 Status of Forum of Responsible Food Marketing Communication 2014, supra note 58, p. 8.

76 EU Pledge, Monitoring Report 2015 (EU Pledge, 2016)

77 Art. 12 ICESCR.

78 For instance, Sweden strictly limits alcohol marketing, prohibiting advertisers from directing marketing at adults aged up to 25 years: Sweden, Alkohollag (Alcohol law), SFS 2010:1622, ch. 7:1.

* PhD., Law Fellow, O’Neill Institute for National and Global Health, Georgetown University. This article builds on research conducted as part of my PhD dissertation “A Children’s Rights Approach to Obesogenic Marketing”, which was funded by Governing Obesity, University of Copenhagen, .