II Genesis of the Recommendations

In May 2007, the WHA endorsed Resolution WHA 60.23 on the Prevention and Control of Noncommunicable Diseases: Implementation of the Global Strategy. This resolution requested the Director-General

Considering the request in resolution WHA 60.23, the WHO worked towards the development of such a set of recommendations that provided advice, guidance and technical support to Member States on how they could achieve the aim of reducing the impact of the marketing of non-alcoholic beverages and foods high in saturated fats, trans-fatty acids, free sugars, or salt (unhealthy food) on children’s food consumption.

In order to support the Secretariat in drafting the Recommendations, an Ad-Hoc Expert Group on Marketing of Foods and Non-alcoholic Beverages to Children was appointed by the Director-General.Footnote ² The first meeting of the Group was held in December 2008. The Group was requested to provide technical advice to the WHO in the following three core areas:

1. - Policy objectives: what should be the objectives of Member States policies on marketing of food and non-alcoholic beverages to children?

2. - Policy options: what are the evidence-based or currently applied policy options available on marketing of foods and non-alcoholic beverages to children?

3. - Monitoring and evaluation: what are the feasibility and mechanisms required to monitor and evaluate recommended policy options?

Before convening the Ad-Hoc Expert Group, the WHO held two dialogues both with representatives of the international non-governmental organisations, and with representatives of the food and advertising industries, in response to Resolution WHA60.23(6), which required that the Recommendations on Marketing Foods and Non-alcoholic Beverages to Children should be developed “in dialogue with all relevant stakeholders, including private-sector parties”.Footnote ³ These two dialogues enabled participants to inform the Secretariat of relevant work being undertaken by their organisations in the area of marketing of foods and non-alcoholic beverages to children. Reports of the dialogues were presented by the Secretariat to the Ad-Hoc Expert Group Meeting.Footnote ⁴ The Group also reviewed the results of an update (2006–2008) of the systematic review of the literature commissioned by WHO in 2006 (Hastings et al.) as well as other background documents that were provided by the Secretariat. The group submitted their report and evidence-based recommendations to the WHO in February 2009.

Regional consultations with Member States on the Draft Set of Recommendations on the Marketing of Food and Non-alcoholic Beverages to Children were held during the second half of 2009. A “Working paper”, developed by the Secretariat, provided a framework for Member States consultations on the development of the Recommendations. Sixty-six Member States submitted a response to the consultations which served as an important platform for refining and agreeing on the full text of the Recommendations. Additional inputs were sought by the Secretariat through two dialogue meetings, one with the global food and non-alcoholic beverage industry and the global advertising industry in August 2009, and the other with international non-governmental organisations in September 2009. A public electronic web-based consultation followed, to allow groups that had not been reached via the other mechanisms to provide their comments to the Recommendations.

It was clear from the consultations that Member States viewed marketing of foods and non-alcoholic beverages to children as an international issue and that the private sector needed to market its products responsibly. The consultations also showed that policies then in place in Member States varied in their objectives and content, approach, monitoring and evaluation practices, and the ways in which stakeholders were involved. Approaches ranged from statutory prohibitions on television advertising for children of predefined foods, to voluntary codes by certain sections of the food and the advertising industries. Several Member States indicated that they would need further support from the Secretariat in the areas of policy development, monitoring and evaluation, mainly due to the limited national evidence available and the lack of specialist resources in this field.

As a result of all these consultations, the Secretariat finalised the Recommendations, which were subsequently submitted to the WHO Executive Board in January 2010. The Board discussed the Recommendations and agreed to submit them for the approval of the 63^rd WHA. The Recommendations provide guidance on three main areas: (1) policy development; (2) policy implementation; and (3) policy monitoring and evaluation, and research. In May 2010, WHO Member States unanimously endorsed the Recommendations through Resolution WHA63.14. The Recommendations call for national and international action to reduce the exposure of children to marketing messages that promote unhealthy food, and to reduce the use of powerful techniques to market such food to children.

III The content of the Recommendations

The Recommendations clearly acknowledge the relationship between food marketing and children’s food preferences, purchase requests and consumption patterns, and call on Member States to restrict the marketing of unhealthy food to children. In May 2012, the WHO published a framework implementation report in order to provide technical support to Member States in implementing the Recommendations and in monitoring and evaluating their implementation. In particular, the framework implementation report is designed to draw their attention to key issues arising at the different stages of the policy cycle, from policy development to policy implementation, policy monitoring and policy evaluation.Footnote ⁵

Four key points are highlighted in this section.

Firstly, the Recommendations are evidence-based. The WHO commissioned an independent systematic literature review in order to establish whether, and if so the extent to which, restrictions on unhealthy food marketing to children were warranted.Footnote ⁶ The review first noted that food marketing to children was primarily for unhealthy food, in sharp contrast to dietary recommendations. It then highlighted that food marketing had become a global phenomenon and tended to be pluralistic and integrated, using multiple messages in multiple channels. The review then focused on the impact of unhealthy food marketing on children and concluded that it had the following effects:

1. - it undermines food knowledge and confuses children as to what is healthy and unhealthy food;

2. - it stimulates a preference for unhealthy food;

3. - it encourages the purchase of, and pestering for, unhealthy food; and

4. - it makes children more likely to consume unhealthy food. This unhealthy eating is directly linked to the recent increases in childhood obesity and weight gain, and related health-harms.

Importantly, it found that food marketing 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. In other words, not only will children prefer one brand of fizzy sugary drinks to another if they are exposed to marketing for the former, but they will also increase their consumption of fizzy sugary drinks to the detriment of other categories of healthier drinks, such as water and milk.

Several studies have since confirmed that food marketing contributes to childhood obesity. The research underpinning the Recommendations and some of their policy implications are discussed more fully in the next contribution.

Secondly, the Recommendations call on Member States to restrict unhealthy food marketing to children as comprehensively as possible, tackling both the exposure to and the power of marketing as the two components of its effectiveness. To ensure the broadest possible coverage and therefore a high level of public health protection, they adopt a particularly extensive definition of the notion of “marketing”. Indeed, “marketing” means “any form of commercial communication or message that is designed to, or has the effect of, increasing the recognition, appeal and/or consumption of particular products and services. It comprises anything that acts to advertise or otherwise promote a product or service”.Footnote ⁷ This definition includes advertising as well as other forms of promotion. This should be welcome, as the definitions of “advertising” have varied significantly: when used in a broad sense as a persuasive technique, the notion of advertising largely overlaps with the notion of marketing;Footnote ⁸ however, when defined more narrowly, “advertising” amounts to one form only of marketing.Footnote ⁹ The key is that marketing is intended to promote the consumption of particular products and services: it is provided on a voluntary basis by business actors to highlight the positive attributes of their products, services and brands. As such, it is not unbiased and should be distinguished from the information which business actors are required to disclose by States to inform consumers.Footnote ¹⁰

The Recommendations call on Governments to set clear definitions so as to eliminate the loopholes which have been identified in existing regulatory frameworks. The definitions should include: the age group for which restrictions shall apply; the communication channels, settings and marketing techniques to be covered; what constitutes marketing to children according to factors such as product, timing, viewing audience, placement and content of the marketing message; and what food falls within the scope of marketing restrictions (i.e. what constitutes unhealthy food). In particular, Member States are specifically requested to define settings where children gather and ensure that they are free from all forms of unhealthy food marketing.Footnote ¹¹ As Recommendation 5 states, these settings include, but are not limited to, nurseries, schools, school grounds and pre-school centres, playgrounds, family and child clinics and paediatric services (including immunisation programmes), and during any sporting and cultural activities that are held on these premises. However, there are many additional settings – which may vary significantly from one State to another – where children commonly gather, such as public playgrounds, swimming pools, summer schools and programmes, afterschool programmes, and sporting events. They also include temporary displays or gathering points for children, such as activity areas created for children in airports, community centres, places of worship and shopping malls… Finally, and as the Framework Implementation Report points out, the areas surrounding “settings where children gather” are worth considering, for example where food business actors use highly-prominent billboards to promote their goods and services very near schools.Footnote ¹²

Furthermore, the Recommendations recognise that a comprehensive approach is more effective than a stepwise approach, which is by definition more selective in nature in that it prioritises some categories of unhealthy food marketing to children, leaving others unregulated by targeting certain media or certain marketing techniques that are particularly popular with children. A stepwise approach leaves some gaps in the regulatory framework in place. As the specific country case studies discussed below vividly show, such gaps allow food business actors to shift their investment away from regulated programmes, media and marketing techniques to unregulated programmes, media and marketing techniques. Such a piecemeal approach necessarily reduces the effectiveness of the restrictions in place. Hence the explicit (and logical) preference expressed in the Recommendations for a comprehensive approach restricting all unhealthy food marketing to children as a more effective form of regulatory intervention.

This is not to say, however, that a comprehensive approach mandates the imposition of a complete ban on all forms of all food marketing or on all forms of marketing to children. On the contrary: a comprehensive approach must also be proportionate. The principle of proportionality is a general principle of law, which requires that the means used to achieve a specific objective, such as public health, must be tailored to the objective in question. This implies, firstly, that the measures adopted must be suitable to achieve the objective(s) they pursue and, secondly, that they must be necessary to that end, i.e. they should not exceed what is required to achieve the objective(s) in question. Rules do not exist in a vacuum; they must take account of a range of competing concerns and strike an appropriate balance between them. Thus, rules on unhealthy food marketing must not only take into account the need to ensure a high level of public health protection, but they must also consider the impact that these rules will have on different actors of society – including food and advertising business actors – and restrict negative impacts wherever possible. This is why impact assessments have an important role to play: they allow for the consideration of different options and will help determine which option of the ones proposed is the most proportionate. When considering costs and benefits, a broad view should be taken to include economic but also social and environmental costs and benefits. These issues are discussed more fully in the contribution on the regulation of cross-border advertising and the contribution arguing for a children’s rights approach to the prevention of childhood obesity prevention.

Thirdly, the Recommendations emphasise that governments have a duty to protect public health and avoid conflicts of interests.Footnote ¹³ The question of conflicts of interests and the role of the private sector in the prevention of childhood obesity (and NCDs more generally) is highly-charged politically and continues to give rise to controversial debates. It is discussed more fully below in a specific contribution.

Fourthly, in light of the concerns that several Member States had expressed at the consultation stage, the Recommendations recognise the importance of tackling cross-border marketing to ensure that the effectiveness of national policies is not reduced.Footnote ¹⁴ Many countries, including those with restrictions in place, are exposed to food marketing in their country from beyond their borders. This is particularly the case when countries have close cultural ties and share a common language, as would be the case for Ireland and the UK; for Austria and Germany; for France, Belgium and Luxembourg, etc. This issue is all the more salient in the European Union (EU), as EU membership requires that its Member States comply with EU law and the Treaty provisions on the establishment and functioning of the internal market.Footnote ¹⁵ In particular, EU Member States are bound by Article 9(2) of Directive 2010/13, which deals specifically with food marketing to children in audiovisual media services, including television, the internet and video-on-demand services. The regulation of cross-border marketing at EU level is dealt with more fully below.

The Recommendations emphasise the importance of distinguishing the three main stages of the policy cycle as they relate to their implementation: (1) policy development, but also (2) policy implementation, and (3) policy monitoring, evaluation and research.Footnote ¹⁶ This Special Issue focuses above all on policy development, not least because rather little progress has been made towards the adoption of sufficiently comprehensive national (let alone regional) measures on unhealthy food marketing to children. However, some contributions also focus to some degree on the other stages of the policy cycle.

IV The implementation of the Recommendations

There is a broad consensus that the data on the prevalence of childhood overweight and obesity requires immediate and effective action from Member States if they are to reverse current trends. However, a review of actions taken to date in Europe and beyond to restrict the impact of unhealthy food marketing on children shows that no country has yet implemented the comprehensive approach the WHO Recommendations call for to protect children from the detrimental effects to their health of the marketing of unhealthy food.