II Existing rules on the marketing of unhealthy food to children

Prior to the introduction of the Ofcom restrictions, controls over marketing of foods to children relied on the self-regulatory codes, the Code of Advertising Practice (CAP) and the Broadcasting Code of Advertising Practice (BCAP). The content dealt largely with misleading advertising rather than any limits on marketing of food because of potential health consequences. Concern about rates of obesity, particularly in children, as well as diet-related diseases more broadly, prompted calls for more specific restrictions to protect children. The food industry challenged the legitimacy of food marketing restrictions, claiming that marketing did not, as such, contribute to childhood obesity and that any impact on preferences worked at a brand level, rather than affecting overall consumption.

To address this contention, UK public authorities commissioned an independent systematic review of the evidence to determine the influence that food marketing had on children’s choices, preferences, consumption and behaviour. In 2003, the Food Standards Agency commissioned a report that concluded that television advertising led to an increase in consumption not only of the product of a given brand, but also of all the products of the category in question and that the advertised diet contradicted the recommended one.Footnote ⁶ In other words, not only will children prefer Coca-Cola to Pepsi if they see an advertisement for the former, but they will also increase their consumption of fizzy sugary drinks to the detriment of other categories of drinks such as water or milk. This review itself was challenged in a critique commissioned by the Advertising Association and so put to further peer review by the FSA, confirming its validity. In 2003, the Secretary of State for Culture, Media and Sport asked Ofcom, the independent regulator for the UK communication industries,Footnote ⁷ to consider the need for proposals for strengthening the rules on television of food advertising aimed at children. In response, Ofcom commissioned its own research into the role played by television advertising in influencing children’s consumption of unhealthy food. The report that followed concluded that advertising had a modest, direct effect on children’s food choices and a larger but unquantifiable indirect effect on children’s food preferences, consumption and behaviour.Footnote ⁸ On this basis, while noting the multiple factors accounting for childhood obesity, Ofcom acknowledged that there was a case for proportionate and targeted action in relation to television advertising to address this public health issue.

In November 2004, the UK Health Department published the White Paper “Making Healthy Choices Easier”, which aimed to set out the key principles and areas for action for the Government and food industry to support the public to make healthier and more informed choices with regard to their health. On the basis of existing evidence linking food marketing to children’s food preferences, it warned the food industry that it would introduce legislation if it failed to change the nature of its advertising campaigns:

The UK Government subsequently mandated Ofcom to take action. In November 2006, following an extended period of analysis and consultation, Ofcom announced scheduling restrictions and tightened content rules. These included a ban on the scheduling of unhealthy food advertising in or around programmes made for children (including pre-school children), in dedicated children’s channels or in or around programmes likely to be of particular appeal to children aged 4 to 15.Footnote ¹⁰ These scheduling restrictions were introduced in order “to reduce significantly the exposure of children under 16 to unhealthy advertising, as a means of reducing opportunities to persuade children to demand and consume unhealthy products”.Footnote ¹¹ To minimise the impact of these restrictions on business actors, the scheduling restrictions were phased in from 1 April 2007 to 1 January 2009, when all unhealthy advertising was excluded from children’s channels. In the impact assessment accompanying the rules, Ofcom engaged with the proportionality of the restrictions: in particular, drawing on the research it had commissioned on the effect of food advertising on children, it decided to impose restrictions to protect all children of less than 16 years old on the ground that “the ability to distinguish between advertising and programming and to understand its commercial intent did not equate to immunity from the persuasive effect of advertising”.Footnote ¹² It concluded that it did seem realistic to assume that even if children between 10 and 15 years of age were able to discern the commercial intent of advertising, it still had the capacity to influence their consumption decisions and that these eating patterns, once developed, had long-lasting effects.Footnote ¹³

Alongside the scheduling restrictions, the Advertising Standards Authority (ASA)Footnote ¹⁴ introduced certain restrictions on the content of advertisements for unhealthy food through its BCAP.Footnote ¹⁵ It banned the use of advertising techniques that are particularly effective with pre-school or primary school children. These techniques include promotional offers such as free toys, nutritional and health claims, licensed characters and celebrities. These rules are in addition to those which apply to all food advertising to children under 16 years of age: that advertisements should not encourage excessive consumption of any food and drink product; that they must ensure that the portion sizes shown are relevant; and they cannot appeal to emotions such as pity, fear, loyalty or self-confidence or suggest that having the advertised product somehow confers superiority, for example making a child more confident, clever, popular or successful.Footnote ¹⁶ These content-related rules apply to advertisements aimed at pre-school or primary aged children and were introduced to “reduce children’s emotional engagement with unhealthy advertisements, and reduce the risk that children and parents may misinterpret product claims, and to reduce the potential for pester power”.Footnote ¹⁷

Subsequently, the UK banned product placement on television in children’s programmes as well as product placement for unhealthy food in any programming.Footnote ¹⁸ These rules derive from a series of three consultations, held between 2005 and 2009, on how the UK should implement the Audiovisual Media Services Directive (also referred to as the AVMS DirectiveFootnote ¹⁹ ), which grants a broad margin of discretion to Member States of the EU regarding how far they would like to allow product placement in certain programmes.Footnote ²⁰ By banning the placement of unhealthy food in all British-made television programmes, the UK has therefore used the discretion that the Directive has granted all EU Member States to increase the minimum level of protection it provides.Footnote ²¹

These measures were a significant step in the right direction and particularly noteworthy for at least three reasons. Firstly, they addressed two related problems which the WHO has identified as a concern in the fight against childhood overweight and obesity: the problem of excessive exposure to unhealthy food advertising (how much advertising?), as well as the problem of the power of certain specific advertising techniques that have been found to be particularly effective with children (what kind of advertising?).

Secondly, the UK rules on food marketing to children set clear mechanisms to classify food into different categories.Footnote ²² Determining what constitutes unhealthy food requires that food be categorised on the basis of its nutritional value and its contents of fat, salt and sugar. In the absence of such categorisation of food, it will be impossible to determine the healthiness of each food and determine whether it should be subjected to marketing restrictions. When reflecting on a food categorisation system, countries must ensure that it is evidence-based, objective and independent from industry’s vested interests.Footnote ²³ Relying on an independent, well-established and uniformly-applied nutritional profiling model, as the UK has done, allows food business actors to promote the food within their portfolios that does not fall within the unhealthy food category. This may in turn increase competition between food business actors and provide them with incentives to innovate or reformulate some unhealthy food into healthier food.

The rules were adopted after long periods of consultation and stimulated a vigorous public debate about the impact of food advertising on children. In some limited regard this has led to the adoption of tighter restrictions than the government initially proposed, for example the ban on product placement for unhealthy food in all TV programmes and the application of some of the advertising restrictions to programmes for children aged 4–15 years (rather than originally 4–9 years).

III The loopholes contained in the UK regulatory framework

Nevertheless, several loopholes remain in the UK regulatory framework. First of all, the definition of children’s programmes confirms that children are still exposed to high levels of unhealthy food marketing. A range of programmes may be watched by a high number of children without being covered by the prohibition: the definition therefore allows for a shift of investment from children’s to adult airtime. This has been acknowledged by Ofcom itself. In July 2010, it published a final review of the effectiveness of these rules restricting unhealthy food advertising. It noted the high compliance rate of broadcasters with both the letter and the spirit of the scheduling restrictions, and it noted that between 2005 and 2009, children saw at least 37% less unhealthy food advertising (52% for children aged between 4 and 9 years’ old and 22% for children aged 10 to 15 years’ old). It also noted that exposure fell in all day parts before 9pm and by 25% between the peak hours of 6 and 9pm. Nevertheless, Ofcom found that the volume of unhealthy food advertising aired throughout the day had increased, and children only saw 1% less unhealthy food advertising overall in adult airtime.Footnote ²⁴ The relatively high threshold adopted by Ofcom is therefore still too low to ensure that children are adequately protected from unhealthy food advertising. Other research findings even suggest that children’s exposure to unhealthy food advertising has increased. For example, researchers from Newcastle University found that children were exposed to the same level of unhealthy food advertising as they were before the entry into force of Ofcom rules, confirming that children are still being exposed to unhealthy food adverts during programming that is not specifically aimed at them.Footnote ²⁵ Similarly, researchers from the University of Liverpool concluded that despite regulation, children in the UK were exposed to more television advertising for unhealthy than healthy food items, even at peak children’s viewing times and that there remained scope to strengthen the rules regarding advertising of unhealthy food around programming popular with children and adults alike, where current regulations do not apply.Footnote ²⁶ A range of stakeholders, not least the Academy of Medical Royal Colleges, representing 200,000 members, called for a tightening of the rules, arguing that a 9pm watershed would be a more proportionate response to the problem of childhood overweight and obesity in that it would more effectively limit the exposure of children to unhealthy food advertising than existing rules do at present.Footnote ²⁷ Others have highlighted the need to address the nature of advertising during family and early evening viewing times, while also ensuring that restrictions reflect the evolving and fluid way in which TV and TV programmes are now viewed by children, on-demand.Footnote ²⁸

Secondly, certain marketing techniques that are extremely popular and effective with children are left out of the content-related rules. In particular, many food business actors use brand-equity characters to promote their products across a range of media (i.e. characters created by advertisers, which have no separate identity and which are designed to appeal to young children, such as characters promoting breakfast cereals). Brand-equity characters differ from licensed characters, in that the latter are covered by the content-related rules in force in the UK, whereas the former are not. This difference therefore entails a high risk that advertisers use brand-equity characters more extensively than they previously did. Ofcom has found that there had been a 58% increase in the number of food and drink spots featuring brand-equity characters between 2005 and 2009, though it also noted a 56% reduction in children’s exposure to food and drink commercials featuring a brand-equity character during the same period.Footnote ²⁹

Thirdly, Ofcom rules only apply to broadcasting activities, which leaves several media or settings where children gather unregulated. The ASA did review its “non-broadcast” CAP Code at same time as the review of the BCAP Code linked to the Ofcom restrictions. The changes at the time were, however, more limited. Key principles that Ofcom was able to insist on were reflected to a certain extent within BCAP, such as distinguishing unhealthy food and protecting children up to 16. However, these were not followed through within the CAP changes. The industry rules therefore only distinguish fruit and vegetables (healthy food) and only apply to younger children up to the age of 12. The CAP Code also has no jurisdiction over more traditional media such as packaging and sponsorship, leaving advertisers free to promote unhealthy food through cartoon characters, giveaways and augmented packaging. This is particularly problematic as children engage with more media, at a younger age, and advertisers respond to these trends by adopting integrated strategies. The boundaries between socialising, entertainment and marketing (through the use of advergames as well as games on company-owned websites) are becoming increasingly blurred. This is particularly worrying as immersive marketing techniques have become more common and are likely to operate at a sub-conscious level. As a result, many of the marketing techniques to which children are exposed fall outside the scope of existing rules on food marketing.Footnote ³⁰ For example, the proven power of advergames to change children’s eating behaviour was not reflected. This loophole has been further exploited in that television adverts that would not be allowed on children’s television are now available on food marketers’ websites so that children can see them at any time and watch them as many times as they like.Footnote ³¹ The situation is likely to change when the new CAP rules discussed in section IV below become enforceable on 1 July 2017.

Fourthly, doubts should be expressed as to the coherence of the overall obesity prevention strategy adopted. Many food companies have a significant presence in sports sponsorship, linking unhealthy food with sport and fitness and giving a positive image to the food industry as a major partner in the fight against childhood obesity. For example, McDonald’s, Coca-Cola and Cadbury were all official sponsors of the London 2012 and Rio 2016 Olympic Games. Coca-Cola was also a major sponsor of the FIFA 2014 World Cup. PepsiCo also used the tournament and its stars to promote its products, including through packaging and social media. This is now particularly incongruous in view of the UK’s Scientific Advisory Committee on Nutrition’s recommendation to minimise consumption of sugar sweetened beveragesFootnote ³² and evidence from the National Diet and Nutrition SurveyFootnote ³³ (NDNS) that 30% of teenagers’ consumption of free sugars comes from soft drinks. In the continuing struggle for coherence in a global strategy on diet, health and obesity prevention, the food and beverage sector has sought to sway, if not divert completely, public health policy towards an exaggerated emphasis on increased exercise (by supporting participation in sport) rather than towards consuming fewer calories. Reinforcing sport’s links with specific brands and the food sector as a whole, serves only to undermine public health messages and confuse consumers. It also facilitates the promotion of certain brands that have otherwise pledged to refrain from targeting children, in ways that will undoubtedly have a major impact on children.Footnote ³⁴ When implementing the Recommendations, countries should look not only at the letter but also the spirit of the Recommendations so that their full effectiveness is ensured.Footnote ³⁵

IV From the “Responsibility Deal” to the Childhood Obesity Plan

The previous Coalition Government launched a Public Health Responsibility Deal in March 2011,Footnote ³⁶ aimed at securing action through voluntary industry pledges, followed by the White Paper on Obesity in October 2011.Footnote ³⁷ In this latter document, it states “We will see a focus on voluntary agreements and supporting people in making healthier choices, rather than reducing choice”.Footnote ³⁸ The work plan included food promotion as an area for voluntary action. A mapping and stakeholder analysis by the National Heart Forum (now UK Health Forum) was commissioned by the Department of Health and identified gaps in current regulatory and voluntary controls, which could be fruitful areas of action for the Responsibility Deal.Footnote ³⁹ These include point of sale marketing, marketing on digital media, sponsorship and in-school marketing. However, the food companies and retailers engaged with the Responsibility Deal failed to agree any collective pledge on promotions and marketing, saying the approach would not work on such a “commercially sensitive” issue.Footnote ⁴⁰ Conflicts of interests are indeed particularly stark when dealing with marketing and promotion: the main motive of food business actors is generally to increase their profits by maximising the sale of their food and catering services.Footnote ⁴¹ Thus, while the Responsibility Deal has managed to encourage action by some companies on certain issues, such as salt reduction and out of home calorie labelling, the scope of action and sign-up overall was limited. There has been little appetite for further action in the area of marketing, despite ministers stating that they expected more action.Footnote ⁴²

In 2013, the Scottish Government tried to drive action through the development of a publicly available specification or standard, working with the British Standards Institute. The intention was to define best practice for the responsible marketing of food and drink products including wider promotions. However, the main food industry and advertising trade bodies pulled out of the initiative, arguing that the plans were “prescriptive and unworkable” and would set a dangerous precedent of government control.Footnote ⁴³ Since then the Scottish Government has published a framework for voluntary action with the food industry, akin to the Responsibility Deal, which does not include any specific actions to limit food marketing to children. Instead the Scottish Government committed to convening a working group of stakeholders to “build on existing practice on the responsible marketing of food and drink high in fat, salt and sugar in order to reduce children’s exposure to messaging”.Footnote ⁴⁴ The Scottish Government has also asked the UK Government to consider strengthening the television advertising rules to a pre-9pm watershed ban, in the light of research from Newcastle University which suggested that children were exposed to the same levels of unhealthy advertising as before the introduction of the Ofcom rules.Footnote ⁴⁵ The Government in Northern Ireland has also made a similar request to the Westminster Government as this level of regulation is a reserved matter.Footnote ⁴⁶