II The failure of the WHO to tackle conflicts of interest in NCD prevention and control policies

There is a widely-held expectation among citizens that governments should serve voters, without bias toward the moneyed interests among them. This applies not just to law- and policy-setting, but also program development, and priority-setting in governments. The opportunities for conflicts of interest to cause problems are especially numerous in the realm of public policy because of its far-reaching potential impact on commerce, and in relation to NCD prevention and control more specifically, where the food, the tobacco and the alcohol industries have been identified as “vectors of disease”.Footnote ⁴

Mandating transparency about conflicts of interest is a necessary but insufficient safeguard. There is far more to dealing with conflicts of interests than merely recognising and disclosing them. Industry operators have fiduciary responsibilities to their shareholders to make profits whatever the health cost to consumers.Footnote ⁵ It therefore should be obvious that there are likely to be “significant limits to the compatibility of industry interests with public health”,Footnote ⁶ and that food business actors should not be entrusted with the development of public health policies:

Since its establishment in 1948, the WHO has projected its concern and resolved to safeguard against commercial conflicts of interest. Its Constitution articulates a commitment to establish the independence of the Director General and WHO staff from the narrow political interests of any one Member State or “other external authority”.Footnote ⁸ Similarly, the “Principles Governing Relations between the World Health Organization and Nongovernmental Organizations”, published as part of the WHO’s “Basic Documents” along with WHO’s Constitution, provided that “the main area of competence of the NGO shall fall within the purview of WHO. Its aims and activities shall be in conformity with the spirit, purposes and principles of the Constitution of WHO, shall centre on development work in health or health-related fields, and shall be free from concerns which are primarily of a commercial or profit-making nature.”Footnote ⁹

Certain WHO instruments take a clear stance on what would constitute a conflict of interest. Most notably, the Framework Convention on Tobacco Control (FCTC) contains a specific and unequivocal prohibition against the involvement of the tobacco industry in the development and implementation of tobacco control policies.Footnote ¹⁰ Similarly, the International Code of Marketing of Breast-milk Substitutes calls upon Member States to ban all commercial marketing of breast-milk substitutes in consideration of the special vulnerabilities of mothers to commercial influence.Footnote ¹¹

However, the WHO Strategy on Diet, Physical Activity and Health, which was adopted in 2004, is less clear on the role that it envisages for the food industry in the prevention and control of overweight and obesity. On the one hand, the main aim of the WHO strategy was to challenge the food and beverage sectors primarily in Europe and the USA to do far more to improve nutrition and help tackle obesity prevention. Led by both European and US sugar trade lobbyists, these powerful sectors had adopted confrontational positions; at a critical moment prior to the WHO Executive Board meeting in Geneva to consider the draft strategy, they appeared to have secured strong support from the US government. This was effectively disarmed in an open letter from Professor Kaare Norum, the Norwegian chair of the WHO’s strategy reference group.Footnote ¹² By the time health ministers had endorsed the strategy, the food and beverage trade group, Confédération des Industries Agro-Alimentaires de l’UE (CIAA) (now FoodDrinkEurope) and its US counterpart, the Grocery Manufacturers of America (GMA), issued terse statements purporting to support the WHO Strategy. On the other hand, however, the wording of the Strategy is ambiguous concerning the involvement it foresees for food companies and their associations. Not only does it explicitly encourage governments to consult stakeholders, including the private sector and the media, on policy, but it also encourages them to establish mechanisms to promote their participation in activities related to diet, physical activity and health,Footnote ¹³ thus formalising institutional conflicts of interest. Similarly, it provides that “[WHO] will hold discussions with the transnational food industry and other parts of the private sector in support of the aims of the Strategy, and of implementing the recommendations in countries”.Footnote ¹⁴ In other words, it starts from the premise that the food industry can play a positive role in the prevention and control of overweight and obesity worldwide, even though it has not defined in any specific terms what this role could be. Of course, hearing from industry is, of itself, not problematic. However, putting companies in a privileged position to shape opinions, advice, or standards upon which governments rely is an abdication of responsibility that is not in the public interest.

In January 2004, as the food industry furore over the WHO’s proposed global diet strategy mounted, the WHO Executive Board was asked to approve applications for formal WHO Official Relations by two international food industry associations, The International Council of Grocery Manufacturer Associations (ICGMA) and the CIAA renamed as FoodDrinkEurope in June 2011 on the recommendation of the WHO Standing Committee on Nongovernmental Organizations. A decision was deferred and at the subsequent Executive Board meeting in May 2004, some government delegates questioned the recommendation in view of both groups having links with the tobacco industry.Footnote ¹⁵ “The food industry is aggressively using its trade associations to influence international health policy”, complained the NGO INFACT (a prominent critic of the marketing of breast-milk substitutes) in a statement issued during the WHA in May 2004.Footnote ¹⁶ By the time the Executive Board met again in January 2005, the Board was still being invited to approve the two industry groups. It was only due to vigorous lobbying by NGO representatives, who distributed a statement pointing out that approval would mean WHO would be in violation of the “Principles Governing Relations between the World Health Organization and NonGovernmental Organizations” set out in its Basic Documents, the Agency’s formal Constitution, that both industry associations decided to ask that consideration of the proposal be further postponed, which was interpreted by public interest NGOs as a tactical retreat to avoid the embarrassment of rejection.Footnote ¹⁷

The food industry does have a positive role to play in ensuring that healthier products are available to consumers through product reformulation; however, companies and industry associations cannot be relied upon to voluntarily sacrifice profits to achieve public interest objectives. In particular; food companies have no incentive to voluntarily curb marketing for unhealthy food to children, except to foil efforts to enact potentially far-reaching legislation in this field. Indeed, the food industry has a vested interest in marketing its products to as broad an audience as possible in light of the fact that marketing increases preferences and purchase requests for unhealthy food. It is clear that the food industry has adopted strategic approaches to reconfigure and redirect their marketing to children following the implementation of Ofcom restrictions in the UK applicable to ads targeting children under age 16 and the voluntary industry commitment not to advertise to children under 12. Global market forecasts indicate that the confectionery trade within the food and beverage sector continues to project volume growth in per capita sales – inevitably ensuring that efforts to improve dietary health are undermined, particularly in target markets where populations are known to have a greater susceptibility to diet-related metabolic diseases.Footnote ¹⁸

The WHO recommendations on marketing to children, adopted six years after the WHO Global Strategy on Diet, Physical Activity and Health was approved, contain emphatic recognition of the deleterious impact of industry involvement. They expressly warn governments to be wary of conflicts of interest. Recommendation 4 clearly states that:

This is echoed in Recommendation 6, which put governments at the centre of the policy making process, urging them to act as:

If, as noted above, governments are indeed in the best position to set direction and overall strategy to achieve population-wide public health goals, the reference to the establishment of multi-stakeholder platforms may create more confusion than it provides solutions for complex issues such as NCD control and prevention. The confusion is further compounded by Recommendation 7, which invites governments, on the basis of the resources, benefits and burdens of all stakeholders involved, to consider the most effective approach to reduce the marketing of unhealthy food to children, specifying however that “any approach selected should be set within a framework developed to achieve the policy objective”.

In other words, the Recommendations seem to suggest that if the key parameters of a national policy on unhealthy food marketing to children should be set by governments, this does not preclude governments from involving food businesses in the implementation of these parameters.

The warnings that Member States should avoid conflicts of interest are echoed in the WHO Global Action Plan for the Prevention and Control of NCDs 2013–2020. This Action Plan, which urges Member States (among others) to halt the rise of diabetes and obesity worldwide by 2025, explicitly lists “the management of real, perceived or potential conflicts of interest” as one of its overarching principles. This is further defined as meaning that: “public health policies for the prevention and control of NCDs must be protected from undue influence by any form of vested interest. Real, perceived or potential conflicts of interest must be acknowledged and managed.” Less than a month after the adoption of the WHO Global Action Plan, WHO Director General Margaret Chan went so far as to state: “Efforts to prevent non-communicable diseases go against the business interests of powerful economic operators […] In the view of WHO, the formulation of health policies must be protected from distortion by commercial or vested interests [our emphasis].”Footnote ¹⁹ Dr Chan’s remarks reinforced earlier comments to health ministers which related to food and beverage industry lobbying and conflicts of interest.Footnote ²⁰

To date, however, efforts of WHO Member States to elaborate principles of institutional conflicts of interest related to food have generally lacked sufficient specificity to guide Member States in designing effective, evidence-based NCD prevention and control policies. The final report of the WHO Commission on Ending Childhood Obesity continues to send mixed messages:

Such ongoing ambiguity has been used by the food industry to support its claim that it is a credible “partner” in the fight against overweight and obesity, rather than an integral part of the problem. In particular, food businesses have made several “pledges” and “commitments” with a view to convincing public authorities that they can provide cost-effective solutions to the obesity epidemic. The next section focuses on the relevance of the EU Pledge in the implementation of the WHO Recommendations in EU Member States.

III The EU Pledge or the EU fudge?

The impetus of European health ministers, among the government representatives who voted to approve the WHO Global Strategy on Diet, Physical Activity and Health in May 2004, prompted the European Commission to consider its own response to the growing obesity epidemic. Its Directorate General for Health and Consumers followed up the adoption of the WHO Strategy with a series of informal obesity roundtable sessions involving some NGO and industry association representatives before it set up the EU Platform for Action on Diet, Physical Activity and Health in March 2005,Footnote ²² as envisaged within the WHO Strategy itself. However, neither WHO nor the European Commission addressed the issue of how to deal with “real, perceived or potential conflict of interest”.

The then Health and Consumer Protection Commissioner, Markos Kyprianou, warned that “binding measures” could follow if the food and beverage industries did not take adequate and rapid steps to address the obesity challenge.Footnote ²³ The main industry players, under pressure by constant media focus, lobbied hard against the concept of regulation and instead insisted that they should be given public plaudits for any small concessions they made. The implicit threat of any EU controls over the industry subsequently evaporated, and the Platform was stripped of the “Damocles Sword” of regulation.

By November the following year, the Commissioner’s softer stance drew criticism in the European Parliament, as well as from health NGOs on the Platform, expressing concern over conflicts of interest after DG SANCO itself convened a “name and praise” press conference to which it invited the leading European executives of several major corporations including Coca Cola, PepsiCo, McDonald’s and Unilever. The companies were allowed to promote their brands within the EU headquarters in Brussels, while Commissioner Kyprianou provoked adverse media coverage when he lauded what NGO members of the Platform felt were limited voluntary pledges inadequately addressing individual cases of reformulation, labelling or marketing to children.Footnote ²⁴

Only a few days later, health ministers met in Istanbul to ratify the European Charter on Counteracting Obesity, developed by the WHO Regional Office for Europe. The Charter included the following reference for business:

The Charter remained vague about what specific changes were needed to reduce consumption of unhealthy food, and made no reference to the conflicts of interests involved in dealing with businesses with a vested interest in promoting the consumption of such food. Instead companies were encouraged to expect “win-win solutions”, so that the upward childhood obesity trend could be reversed by 2015 “at the latest”.Footnote ²⁵

WHO’s policy guidance manual, linked to the Charter and published the following year, noted the emergence of the EU Platform as a model commenting:

The EU regulatory framework itself encouraged this unsatisfactory state of affairs by opting for a hands-off approach, on the basis that legally binding, compulsory measures were not welcomed by the wider industry in Europe. The wording of Article 9(2) of the Audiovisual Media Services Directive, which was then under discussion, is very revealing in this respect. It merely provides that “Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, of [unhealthy foods], excessive intakes of which in the overall diet are not recommended”.Footnote ²⁷ One cannot fail to note that this provision stands in stark contrast to the ban the EU has imposed on the marketing of tobacco products in all media whose regulation falls within the scope of its powers.Footnote ²⁸ As far as unhealthy food is concerned, the European Commission and EU Member States have only undertaken to “encourage” businesses to adopt their own pledges to restrict the marketing of such food to children.

Anticipating the adoption of the AVMS Directive, food businesses adopted a range of EU-wide pledges to restrict the marketing of unhealthy food to children. In particular, the Union of European Soft Drinks Associations (UNESDA), including Coca Cola and PepsiCo, made a range of public commitments in 2006, in particular claiming they would not market to children under 12 where they formed more than 50% of the audience (a very weak standard compared to the UK Ofcom rule, which applies to children under 16 and the Quebec Consumer Protection Act, which defines a children’s audience as having more than only 15% under age 13 and includes Internet, billboard and other types of advertising).Footnote ²⁹ This was followed by the adoption in 2007 of the EU Pledge whereby major food and beverage companies undertook not to promote their products to children under 12 on TV, print and Internet, “except for products which fulfil specific nutritional criteria based on accepted scientific evidence and/or applicable national and international dietary guidelines”. They also pledged not to put product materials in primary schools, unless requested to.Footnote ³⁰ Launched with 11 signatories in 2007, the EU Pledge now has 21 members which, together, account for over 80% of food and beverage advertising expenditure in the EU.Footnote ³¹

The EU Pledge was seen as one of the first significant stakeholder Platform commitments. The World Federation of Advertisers (WFA), a prominent Platform member, which officially supports the EU Pledge, described it as “a response from industry leaders to calls made by the EU institutions for the food industry to use commercial communications to support parents in making the right diet and lifestyle choices for their children”.Footnote ³² In particular, EU Pledge signatories have been challenged to adopt common criteria for defining products that should not be advertised, ending the practice of individual companies using their own standards to determine which of their products could be marketed to children under 12. The nutritional criteria which define products permitted to be marketed to children under 12 were published in the EU Pledge Nutrition White Paper.Footnote ³³

However, as has already been discussed elsewhere,Footnote ³⁴ the EU Pledge’s contribution to public health and obesity prevention is not sufficient to consider that the Pledge is an effective tool of childhood obesity prevention. Firstly, it has not been signed by all food businesses in the EU and remains a voluntary commitment. Secondly, it does not apply to all media. In effect, while given the appearance of a major industry concession, in reality by 2007 many companies had already adopted new strategies to switch their advertising spending from the media covered by the EU Pledge, not least television, to media falling outside its scope. In particular, it did not originally cover company-owned websites (only third-party websites), thus allowing food businesses to target children through the use of different advergames.Footnote ³⁵ This was addressed via the adoption of enhanced commitments in 2012 and 2014. The fact remains, however, that the EU Pledge still contains several loopholes, not least because it does not apply to all media (for example, it does not apply to product packaging). In the same vein, the caveat that Pledge signatories do not promote their products in primary schools, “except where specifically requested by, or agreed with, the school administration for educational purposes” is extremely cynical: in an age of austerity where education budgets are tightened, one can easily imagine how educational establishments may be lured into accepting the sponsorship of food businesses. As the WHO Recommendations explicitly point out, schools and other settings where children gather should be free of any form of unhealthy food marketing.Footnote ³⁶ Similarly, if the 2012 enhanced commitment reduced the audience threshold to 35% of children under 12 years, as opposed to 50% originally, the fact remains that this will still leave food businesses free to promote unhealthy food during popular family programmes which, if they are watched by a high number of children, are also watched by a large number of adults, thus making the proportion of children below 35%. Children do not stop being exposed to the impact of television advertising when adults are present. Some of these shortcomings have been exposed in the annual EU Platform monitoring reportsFootnote ³⁷ and have led the Commission to announce that it would “support the development of a definition of stricter age and audience thresholds for advertising and marketing and more consistent nutritional benchmarks across companies”.Footnote ³⁸ However, the ongoing debates relating to the revision of the AVMS Directive, discussed below, suggest that this may be difficult to achieve.

Furthermore, as far as the implementation of the EU Pledge is concerned, and despite claims that none of the EU Pledge member companies promote unhealthy food to children under 12, the EU Pledge monitoring report for 2015 suggested that the overall compliance rate for television advertising amounted to 98.6%, whilst compliance on company websites was lower at 97%.Footnote ³⁹ The difficulty of regulating children’s exposure on the internet was reflected in the EU Pledge’s lower compliance among corporate websites. The report acknowledged that monitoring since 2009 showed a downward trend in children’s exposure to television food advertising by EU Pledge member companies, but that children’s exposure to advertising for products that do not meet their self-determined nutrition criteria in all programmes was reduced only by 48% over all markets monitored in the past six years and that the reduction in exposure to advertising for all EU Pledge member companies’ products regardless of nutrition criteria was only 32%. However, the latest EU Pledge Monitoring Report, published in January 2017, claimed that children’s exposure to advertising for all company products had been reduced by nearly one third over six years, but that a much larger reduction (83%) had been achieved in curbing advertising of products not meeting nutritional criteria during children’s programmes. The switch of marketing focus to the internet and company websites may account for much of the reduction, but the report claimed that 95% of company sites complied with Pledge standards, acknowledging that one in 20 of the company sites breached the industry’s own code.Footnote ⁴⁰

An extension of the EU Pledge beginning in 2017 was outlined to the EU Platform for Action on Diet, Physical Activity and Health at its meeting on 9 March 2017. However, the criticism remains that caveats regarding limiting the application of the various elements of the Pledge to under 12s allows companies to significantly limit the scope of the Pledge irrespective of existing evidence that teenagers are also negatively affected by unhealthy food marketing. A procedure to allow public complaints about breaches of EU Pledge commitments is under development and is due to be ready by the end of 2017. Companies are also promising to introduce common nutrition criteria, which will include salt and sugar reductions, mostly by the end of 2018.Footnote ⁴¹

The criticism remains that not only are EU Pledge commitments insufficiently broad in their coverage (both in terms of products, companies, media and ages covered), but the food and beverage industries have yet to fully implement the Pledge. However recently Dame Fiona Kendrick, Chair and CEO of Nestlé UK & Ireland, broke ranks to support a call for regulation of the industry, acknowledging that:

While EU Pledge members may be challenged to deliver food and beverages that measure up to the benchmarks of “healthy”, and address the shortcomings that have been highlighted in the Pledge coverage, they should also be challenged to consider the context in which their brands, rather than specific products, are promoted. Coca Cola and McDonald’s sponsorship of the Olympics faced criticism for achieving significant brand exposure to young children at a time when the companies pledged not to advertise directly to them.Footnote ⁴³ The issue of sports sponsorship requires careful consideration by EU Pledge members if they are serious about fulfilling the spirit of their commitments to help reverse obesity. It is true that the WHO Recommendations refer to the marketing of products and services; they do not refer explicitly to the promotion of brands (as distinct from products and services). Nevertheless, as certain brands and organisations are clearly associated with products or services whose marketing could fall within the scope of the Recommendations, efforts to restrict marketing in this area also needs to consider how brands are marketed, in line with the spirit of the Recommendations.Footnote ⁴⁴

Despite its many shortcomings, the EU Pledge is portrayed by the European Commission as one of the Platform’s success stories.Footnote ⁴⁵ Yet such acclaim ignores the overall impact that ubiquitous brand awareness achieves. More fundamentally, 12 years after the EU Platform was established, the EU has failed to acknowledge, let alone address, the questions of conflicts of interest and undue influence at the very heart of unhealthy food marketing self-regulation.