1 The 2004 Public Health Act and the imposition of compulsory health messages in food adverts

Even though several legislative proposals have been made to this effect, France has not restricted the marketing of unhealthy food to children: instead, it has limited itself – with the adoption of the Public Health Act of 9 August 2004 – to mandate the insertion of health messages in all advertisements promoting processed food or non-alcoholic beverages with added sugar, salt or artificial sweeteners.Footnote ⁵

The parliamentary debates that led to the adoption of the Act illustrate existing tensions. During the first reading in Senate (the second chamber of the French Parliament), advertisers were offered an alternative: they could either decide to include a health message in their food adverts broadcast during children’s programmes, or if they decided not to broadcast this information themselves, they could instead finance a health message that would be broadcast on the same channel and would last for the same amount of time. During the second reading in the National Assembly (the first chamber of the French Parliament), the text was modified, stating that “television advertising for food products whose composition may be harmful for children or teenagers if consumed in excess should finance the realisation and broadcast of a nutritional information message”. The novelty resided in the introduction of the notion of nutrient profiles: the measure was intended to require the insertion of health message in adverts promoting unhealthy food only. Finally, in the second reading in Senate, the advertisers were offered a choice: they could opt for the insertion of a health warning in their advert, or pay a contribution to the budget of the INPES (Institut National de Prévention et d’Education pour la Santé, the French National Institute for Health Education and Prevention), which will have to develop and broadcast appropriate health messages. This amounts to an implicit recognition of advertisers’ responsibility and can thus be compared to the application of the “polluter pays” principle often used in environmental law and policy. However, the food industry has overwhelmingly opted in favour of inserting the health message, rather than the alternative solution of making a financial contribution to the health prevention budget of the INPES.

The measure finally adopted, which the Governments supported, was codified in Article L 2133-1 of the Public Health Code. However, it was strongly criticised by the members of Parliament who were hoping for the introduction of unhealthy food marketing restrictions in youth-oriented television programmes.Footnote ⁶

Article L 2133-1 of the Public Health Code mandates that “commercial communications for drinks with added sugar, salt or sweeteners, or for processed food, must contain a health message. For commercial communications on the Internet, on television or on the radio, this obligation only applies to messages broadcasted from the French territory and received on this territory. The same obligation of information imposes itself to any promotion, aimed at the public, by print copies and publications edited by the producers or distributors of these products.” The aim of this provision is to limit the influence of commercial advertising by reminding consumers of the importance of a healthy diet and physical activity for their health.Footnote ⁷

The 2004 Public Health Act was made operational with the adoption of delegated legislation laying down the specific requirements pertaining to the health messages and their use. Article L 2133-1 of the Public Health Code took effect on 1 March 2007.Footnote ⁸

The notion of “processed food” has not been defined in law, but it is accepted that it should be interpreted broadly to cover all food that has undergone a process of transformation.Footnote ⁹ The provision does not apply to infant food, the marketing of which is prohibited except in printed publications specifically designed for health professionals.Footnote ¹⁰ It does not apply to alcoholic beverages either, which are subject to specific rules.Footnote ¹¹

Four main health messages are listed:

1. - “For your health, eat at least five portions of fruit and vegetables a day”;Footnote ¹²

2. - “For your health, engage in regular physical activity”;Footnote ¹³

3. - “For your health, avoid eating too much added fat, sugar or salt”;Footnote ¹⁴

4. - “For your health, avoid snacking between meals”.Footnote ¹⁵

However, these messages may vary slightly depending on the food, the media and the audience concerned. For example, they can be shortened on the radio; or they can be more informal if they are intended for a child audience (using “tu” rather than the more formal “vous” form).

Advertisers must ensure that the four main health messages rotate: they must use them all equally in each of their campaigns so that one message – for example the message relating to physical activity, which may be seen as preferable from the point of view of food manufacturers – does not appear disproportionality to the detriment of the other three. Advertisers must also ensure that the health messages appear clearly and can easily be distinguished from the commercial message they accompany, and that they cover at least 7% of the advertising surface covered or – for radio advertising – they must be broadcast immediately after the advert.

The scope of application of Article L 2133-1 of the Public Health Code is relatively wide. It applies to television, cinema, radio, print and internet advertising, including both third-party websites and the websites of food business actors themselves. However, it does not extend to all forms of marketing. In particular, in the absence of advertising campaigns falling within the scope of Article L 2133-1, it does not apply to packaging, which means that consumers are not exposed to the message at point of sale. It also does not apply to brand advertising and sponsorship arrangements, even though such arrangements are popular with food advertisers who have been associated with major international and national sports events over the years (e.g. the Olympic Games, international and national football and rugby tournaments, the “Tour de France”…).Footnote ¹⁶

Requiring that consumers be provided with specific information is a regulatory technique that has enjoyed considerable popularity in the development of EU and French consumer and health policies, not least because the “information paradigm” places the onus on consumers to decide what is good for them and their families, expecting them to read the information and process it whilst taking their personal circumstances into account. Applying this rationale to food choices, the assumption is that if consumers are aware of the health risks involved in adopting unhealthy diets or in being physically inactive, they should be trusted to apply their knowledge and make appropriate choices.Footnote ¹⁷ Such rationale, which assumes that consumers see, understand and act upon the information conveyed to them,Footnote ¹⁸ differs from the rationale underpinning the imposition of marketing restrictions designed to protect children from the exposure to such marketing.

2 The Nutrition and Physical Activity Charter: a very limited voluntary initiative

In 2009, the food and advertising industries signed this Charter and undertook to facilitate the promotion of a healthy diet and physical activity in the programmes and advertisements broadcast on television. In particular, they agreed:

1. - to offer preferential rates for the broadcast of public health prevention campaigns;

2. - to increase the space available for nutrition and physical activity education;

3. - to develop short programmes promoting the objectives of the PNNS and referring to its “manger et bouger” (“eat and move”) website;Footnote ¹⁹ and

4. - more importantly for our purpose, to improve the “quality” of the content of food adverts.

The debates that led to the adoption of the Charter are also symptomatic of the profound divisions that exist both within and beyond government on how food marketing should be regulated in France. Following years of campaigning by l’UFC Que Choisir, France’s main consumer organisation,Footnote ²⁰ then Secretary of State for Public Health and Sport, Roselyne Bachelot, announced on 4 February 2008 that she would lead discussions with a view to eliminating the marketing of unhealthy food aimed at children on French television.Footnote ²¹ She indicated that she would start by promoting self-regulatory measures, and if the food and advertising industries failed to make meaningful commitments by May 2008, she would propose legislation. In the first instance, the food and advertising industries boycotted the discussions by adopting an “empty chair” policy. However, the food industry became less antagonistic. This caused major concern for the French audiovisual industry, which vigorously lobbied the Ministry for Culture and Communication, Christine Albanel, against the adoption of a food marketing ban.Footnote ²² The basis of their argument was the economic loss they would suffer if unhealthy food marketing was banned.Footnote ²³ The public and acrimonious clash between the Health Secretary of State and the Cultural and Communication Minister resulted in an unsatisfactory compromise: the adoption of the Charter,Footnote ²⁴ notwithstanding the clear support that health and nutrition learned societies had expressed in favour of more robust and meaningful regulatory restrictions.Footnote ²⁵

The Charter’s primary objective is the promotion of a healthy diet and physical activity. To fulfil this objective, the Charter insists in particular on the necessity to “strengthen responsible food marketing practices”. The Charter therefore recognises that food marketing has an influence on food choices, and in particular children’s choices – as described in the earlier contribution to this Special Issue on the evidence base justifying the imposition of unhealthy food marketing restrictions. However, the commitments that the French food industry has been prepared to make to protect children from its harmful impact fall short of existing evidence.

The Charter was subsequently revised in November 2013, and renewed for a five-year period.Footnote ²⁶ The 2009 version was originally signed by two government departments: the Ministry of Health and the Ministry of Communications. Four have been added to the list: the Ministry of Agriculture, the Ministry of National Education, the Ministry of Overseas Territories (to reflect the fact that the scope of application of the Charter has been extended to these territories), and the Ministry of Sports and Youth. The Charter now applies to 36 channels, as opposed to 19 in 2009, including digital terrestrial, overseas territories and local channels. The material scope of the Charter has also been broadened to cover not only linear television programmes but also internet and on-demand television programmes, and the total volume devoted to the promotion of a healthy diet and physical activity has increased from between 340 and 470 hours to a minimum volume of between 587 and 753 hours. The revised Charter has also entrusted the CSA (Conseil Supérieur de l’Audiovisuel, the French Audio-Visual Authority), which is one of its signatories, with the monitoring and the evaluation of the pledges it contains.

However, as far as the marketing of unhealthy food to children is concerned, the Charter is neither binding nor innovative and clearly falls short of the WHO Recommendations. Firstly, the Charter rests on a voluntary approach that, as argued in another contribution in this Special Issue focusing specifically on conflicts of interest, is most unlikely to effectively address the harmful impact of unhealthy food marketing on children. The Charter involves the industry as a health policy actor. In particular, it refers to the codes of conduct of the ARPP (Autorité de Régulation Professionnelle de la Publicité, the French Advertising Self-Regulatory Association). In 2013, advertisers pledged to update, within six months, the code of conduct the ARPP had adopted in 2010 on Food Behaviour with a view to better delineating the general principles it laid down on: the need for a healthy diet, excessive consumption, snacking, nutritional comparisons, societal values relating specifically to food waste, diversity and physical activity, advertising involving children and/or directly targeting children.Footnote ²⁷ One cannot help but notice how general these rules are, and how little they add to what already existed.Footnote ²⁸ It is very clear that the pledges are not intended to reduce the exposure of children to unhealthy food marketing or the power that such marketing has on them. Even though signatories have pledged to promote healthy diets, the fact remains that in terms of concrete commitments, little meaningful progress has been achieved since the Charter was first signed in 2009. The renewed Charter insists on the fact that waste and unsustainable developments should be avoided. It also raises the question of the use of equity brand characters and licenced cartoon characters often accompanying the marketing of unhealthy food, for instance cartoon characters included in fast food children’s menus; but it does not propose to ban their use. However, the ARPP codes of conduct do not ban such techniques, even though research has established that, if associated with unhealthy food, they contribute to increased intake and preference of such food, as discussed in the chapter reviewing the relationship between unhealthy food marketing and childhood obesity. Rather, the ARPP’s Food Behaviour code of conduct requires that advertising using imaginary characters known by children and inciting them to eat a food should never promote unhealthy food whilst condoning excessive consumption. In other words, licensed or equity brands characters can be used to promote unhealthy food, provided that such marketing does not condone excessive consumption – whatever the notion of “excessive consumption” means in practice. In case the reader would have any doubt as to the leeway the ARPP Food Behaviour code grants advertisers, it adds: “The use in advertising of humour, the use of exaggerated statements, or the reference to fantasy worlds is allowed provided that it may not mislead children into believing that the consumption of the food in question could lead to certain achievements”.

The contrast with the WHO Recommendations could not be starker, and we argue that the Charter cannot, and should not, be seen as an implementation of the WHO Recommendations.

Interestingly, the discussions surrounding the regulation of food marketing in France do not refer at all to the WHO Recommendations. Yet, as it is contended throughout this Special Issue, the WHO Recommendations should provide the yardstick against which national policies should be developed, implemented, monitored and evaluated.

As discussed in the first contribution to this Special Issue, the objective of the WHO Recommendations is to alleviate the commercial pressure on children, in two ways that should be combined to ensure the maximum effectiveness of the national policies implementing them:

1. - Reducing children’s exposure to food marketing (how much advertising do children watch? Quantitative assessment): the broader the coverage of the rules, the more likely they are to protect children. They should not only cover television advertising, but other advertising in other traditional media (e.g. radio, print, billboards), advertising in digital media (not least the Internet, smartphones and tablets), and other forms, as well as other forms of marketing, beyond advertising to include sponsorship, product placement, advergames, etc. The scope of application of the Charter, even though it has been somewhat extended, remains particularly narrow, and only calls on advertisers to improve the quality of their unhealthy food advertising campaigns, without restricting their use, even in children’s programmes.

2. - Reducing the power of particularly effective marketing techniques in all media (what are the techniques that are more likely to encourage children consumption of unhealthy food? Qualitative assessment): the aim is to restrict the use of these powerful techniques rather than make their use conditional on ensuring that they are not used to promote excessive consumption.

One can only hope that learned societies, consumer associations, other civil society actors, and of course parliamentarians will be able to reclaim some control over the debate.

The concerns are all the more acute as the limited pledges contained in the Charter are explicitly subject to the Government’s commitment that the legislative and regulatory framework relating to the marketing of unhealthy food to children will remain unchanged as of the day the Charter was signed and throughout its duration (until 2014 for the first version of the Charter, and until 2019 for the second one). In other words, the pledges would become obsolete in their entirety if the French Parliament legislated with a view to implementing the WHO Recommendations and thus decided to protect children from the negative impact that unhealthy food marketing has on their health. By promising to improve the quality of unhealthy food marketing to children – as opposed to suppressing it altogether – the French advertising and food industries have succeeded in obtaining guarantees that amendments to the existing regulatory framework would not be readily forthcoming.

The question remains why the CSA (Conseil Supérieur de l’Audiovisuel, the French Audio-Visual Authority) has consistently failed to support the effective implementation of the WHO Recommendations, even though the WHO Recommendations are based on robust evidence. It seems to have invoked two main arguments against the regulation of unhealthy food marketing in France.

Firstly, the CSA has argued that a ban on the advertising of unhealthy food would have damaging effects on the French audio-visual sector, and could negatively affect the sustainability of many television networks. The basis for such an argument is unclear: unlike what happens in the United Kingdom, for instance, it is extremely difficult in France to have access to impact assessments. As a result, the lack of transparency is notorious, and the opportunities to have an informed public debate necessarily more limited. When Ofcom (the Office of Communications in the UK) banned the marketing of unhealthy food to children,Footnote ²⁹ it relied on an impact assessment and a public consultation, as a basis for its decision,Footnote ³⁰ whose results are publicly available on its website. It is indeed remarkable that the CSA does not feel the need to specify the sources it has used to conclude that the regulation of unhealthy food marketing would endanger French television networks. It is all the more staggering that the CSA does not seem to have considered in its assessment the significant costs of overweight and obesity for the French national health service and French society more generally. The CSA did not address either what would be in the best interests of the child, notwithstanding the fact that one of its main roles is to ensure that these interests are effectively protected and, in line with the UN Convention on the Rights of the Child, “upheld as a primary consideration”. It is, of course, necessary to take economic issues into account in an overall assessment of existing policy options. Nevertheless, the sustainability of the French audiovisual model would arguably be protected by the fact that the marketing of other products could replace food marketing; or that the marketing of healthy food could replace the marketing of unhealthy food. The introduction of unhealthy food marketing restrictions could provide an incentive for the industry to reformulate the food they offer so that they have a healthier nutrient profile and can in turn be promoted. At no point does the CSA mention existing studies that establish a direct relationship between unhealthy food marketing and childhood obesity. The fact that more and more United Nations institutions invoke the necessity to regulate food marketing to children, in order to protect their fundamental rights (in particular the right to food and the right to health), does not seem to be a concern for the CSA.Footnote ³¹

The second reason that the CSA has given to dismiss the prospect of adopting a marketing ban on unhealthy food to children rests on the fact that the examples of countries that have implemented such a ban would be “inconclusive”. The CSA has not identified any specific country, and it is therefore difficult to assess its sweeping claim. However, in a document originating from the CNA (Conseil National de l’Alimentation, the French National Food Council), one can find some indications of what the CSA may have had in mind. The fact remains that the references lack precision.Footnote ³² A closer look at the CSA’s proposed “analysis” raises concerns. Indeed, in order to dismiss these “inconclusive” examples, the CSA invokes the multi-factorial nature of overweight and obesity (“knowing that overweight and obesity have multifactorial causes”). It is clearly established that overweight and obesity are the outcome of the complex interaction of a wide range of factors (genetic, cultural, social, environmental…).Footnote ³³ No intervention alone can be sufficient to effectively solve this problem. One should not conclude that countries suffering from high levels of childhood overweight and obesity have developed ineffective policies on the marketing of unhealthy food to children specifically. The CSA’s approach is deeply flawed, and it seems rather paradoxical that it would have reached this grossly over-simplistic conclusion by asserting the complex nature of obesity.

The Charter is not a fatality. The standstill clause should not prevent the adoption of robust, evidence-based, legally binding marketing restrictions. There are encouraging signs that France is not as categorically opposed to the imposition of marketing restrictions as the discussion may have suggested so far.

1 Towards the regulation of television advertising to children?

Notwithstanding the lack of meaningful progress on the implementation of the WHO Recommendations since 2009, André Gattolin MP submitted a legislative proposal in July 2015 on the reduction of the exposure of children to television advertising for consideration by the French Parliament. This proposal was presented without Government support and resulted in an alliance of convenience between the Green Party, sponsors of the draft, and the right-wing Republican Party. The Socialist government’s opposition to this proposal derived from the fact that the advertising ban was designed to apply exclusively to public television channels. It therefore feared the risk of revenue loss for France TélévisionsFootnote ³⁴ and the consequences that such loss would have on the French animation industry. Indeed, France Télévisions is the main funder of animation programmes in Europe: it invests an average of €30 million per year in the production of (often high quality and diverse) films and series.Footnote ³⁵ In 2015, the share of French production in the total supply of animation broadcast on television was 45%. Another argument that the Government put forward related to the voluntary commitment of France Télévisions not to broadcast advertising during television programmes for children aged between three and six years old, including programmes available on the internet.Footnote ³⁶ However, at the second reading stage in Senate, the socialist members of Parliament abandoned the idea of voting against the text and merely abstained. The Government had anticipated the adoption of André Gattolin’s legislative proposal and signed an agreement with France Télévisions with a view to off-setting the cost of the foreseeable loss of advertising revenue of €20 million for 2016–2020.

Act 2016-1771, which was finally adopted on 20 December 2016, requires, in particular, that programmes from public television produced primarily for children under 12 years of age shall not contain commercial advertising messages.Footnote ³⁷ Health education and promotion messages do not fall within the scope of the prohibition, as they are not regarded as commercial advertising. The ban targets both television advertising and advertising in programmes available on the websites of public channels. Furthermore, the Act also requires that the CSA shall submit a yearly report to the Parliament, assessing the commitments taken by the editors and advertisers to protect young children and teenagers and making recommendations to improve the self-regulatory commitments of the advertising industry. Bearing in mind that the CSA has not issued any report on the application of the Charter since 2012,Footnote ³⁸ the Parliament will therefore be in a position to monitor and evaluate the effectiveness of voluntary commitments – though the question remains whether it will actually and effectively do so.Footnote ³⁹

Despite its limited scope, this text is significant in light of the fact that France had up to this point consistently refused to ban television advertising, even in children’s programmes. By legislating in this area, it allows for a partial implementation of the WHO Recommendations, in that the advertising ban it imposes applies to all goods and services, including unhealthy food.Footnote ⁴⁰ It is all the more noteworthy as it was adopted despite the vocal opposition of the ANIA (Association Nationale des Industries Alimentaires, the French Food Industry Association).Footnote ⁴¹

If that reform is a first step towards a limitation of the exposure of children to unhealthy food marketing, the fact remains that its impact is likely to be very limited. First of all, it only concerns television advertising (including on-demand television) on public channels. How could we therefore speak of a “ring-fenced” restriction whilst the restriction does not apply to private channels, irrespective of whether they are general or children’s channels? If we consider the ranking of channels in terms of audience share of children aged between 4 and 10 years old, the first public channel is only in fifth position, the first four being private channels.Footnote ⁴² In reality, public channels have less than 15% of audience share, which will unavoidably and significantly lessen the impact of the new law.Footnote ⁴³ Furthermore, advertising investments made by advertisers on the websites of eight television channels aimed at childrenFootnote ⁴⁴ were estimated at €3.4 million in 2012, representing 32% of all-sector investments on these channels’ websites, which shows the importance of on-demand television as a medium for food marketing. Secondly, it is legitimate to ask whether it is efficient to regulate television without restricting all other media (internet, VoD, Youtube…) marketing unhealthy food, despite the fact that such media increasingly affect children. Thirdly, by only targeting programmes aimed at children under 12, the regulatory framework excludes family-oriented programmes from the scope of the prohibition and does not effectively protect children, both under 12 and teenagers, from the harmful effects unhealthy food marketing has on them, notwithstanding the fact that an increasing number of actors have argued for more far-reaching restrictions.

2 Ongoing voices arguing in favour of robust unhealthy food marketing restrictions

Voices have begun to call for France to finally take into consideration the impact of food marketing on children’s eating behaviour, and to meet its international commitments.

Firstly, in a report to the State Secretary for Health published in January 2014, Serge Hercberg argued for the regulation of unhealthy food marketing, emphasising the international consensus on the matter.Footnote ⁴⁵ In his report, Serge Hercberg suggests, among others, that France should regulate food marketing on the basis of nutritional quality. As the objective is to reduce marketing pressures that encourage children (including teenagers), as particularly vulnerable consumers, to eat food of lesser nutritional quality, and to promote the consumption of healthier food, he urges industry to reformulate its products. In stark contrast with the CSA, the report highlights that the experience of other countries that have regulated food marketing have been useful as part of national obesity prevention strategies. In particular, the arguments often raised to challenge the effects of unhealthy food marketing restrictions are discussed to demonstrate that the problem is not so much the regulation of such marketing, but rather the scope (which media…) and content of the restrictions thus adopted. In this context, Serge Hercberg recommends not relying exclusively on self-regulatory measures (such as the Charter), which are insufficient to reduce the impact of unhealthy food marketing.Footnote ⁴⁶ He suggests instead the imposition of a watershed on the marketing of all food with an unhealthy nutritional profile on television and the internet between 7am and 10 pm. He also recommends that advertising on radio and in print (posters, newspapers) should be accompanied by information on the food’s nutrient profile.Footnote ⁴⁷

The INPES also commissioned a report, completed in September 2014, which summarised the state of scientific evidence on the impact of marketing on children’s food preferences, purchase requests and eating behaviours and argued that France should implement the WHO Recommendations.Footnote ⁴⁸ This report showed in particular the existence of extensive literature written in English, and the paucity of research in French on the matter. This can probably be explained by the less noticeable presence in France of academic research on social marketing and, more generally, by the limited funding available for social sciences research on public health. The INPES itself carried out some research on how food was marketed to children (including teenagers), which looked at the media and the marketing techniques used, marketing investments, the food categories promoted, the impact on children’s food preferences and purchase requests, and parents’ perception of regulating food marketing.Footnote ⁴⁹ This report established that three quarters of food advertising investment (72%) in children’s programmes, representing €29.7 million, was for unhealthy food.Footnote ⁵⁰ The study also showed that among the food advertising investments (including drinks and catering) on the websites of the eight children’s channels studied, “those for [unhealthy] food amounted to €2.8 million in 2012, representing 82% of food investments in total by advertisers on the websites of these channels[…] The high pressure for fast food should be noted, with McDonald’s in the first position as advertiser for this type of products on children’s channels, with an investment of €1.43 million.Footnote ⁵¹ Facing this abundance of advertising for products with a lesser nutritional quality, the INPES sought the views of 934 parents of children aged between 4 and 17 on the possible introduction of restrictions or even a total ban on unhealthy food marketing. The results showed that 74% would support a law banning unhealthy food marketing to children.Footnote ⁵²

Finally, and more recently, an interdisciplinary expert group undertook a collective study led by the INSERM (Institut national de la santé et de la recherche médicale, the French National Institute for Health and Medical Research), which assessed the decision of France to impose health messages rather than restrict unhealthy food marketing, particularly to children.Footnote ⁵³ The study clearly and convincingly demonstrates that the health messages introduced in 2007 are ineffective. The expert group argued that, even though the messages are generally known by French consumers, they may nonetheless lead to a saturation effect. Furthermore, an exploratory study using eye trackers was carried out in parallel with the expert group study on a sample of 51 participants. It showed that the participants exposed to the health messages inserted in television food adverts paid hardly any attention to these messages.Footnote ⁵⁴ Demonstrating the inefficiency of the mechanism set up by the 2004 Public Health Act, the expert group have begun to refocus the debate on the role that nutrition information can play in French nutrition policy, as well as its limits. The group argues that only a multisectoral policy, designed to improve the food environment, as opposed to a policy based exclusively on the individual responsibility of consumers, can effectively improve eating behaviours in the long term. In particular, they argue that the improvement of the health messages should not preclude France from adopting a legally-binding framework banning the marketing of unhealthy food, particularly to children, in line with the international commitments that France has undertaken. They also emphasise the weaknesses of the self-regulatory mechanisms intended to limit the impact of unhealthy food marketing (Charter from 2009), giving further weight to the similar recommendations contained in the Hercberg and INPES reports.