1 Directive 2010/13 on Audiovisual Media Services and its failure to contribute to an effective implementation of the WHO Recommendations

This section does not propose to rehearse in detail the legislative history of Directive 2010/13. This has been done elsewhere.Footnote ⁹ Suffice it to say, for our purposes, that Article 9(2) was inserted in 2007 as part of the EU’s obesity prevention strategy, thus recognising that food marketing contributes to the obesogenic environment responsible for growing childhood overweight and obesity rates.Footnote ¹⁰ Since then, Member States have adopted the EU Action Plan on Childhood Obesity 2014–2020 which further acknowledges that unhealthy food marketing is part of the problem of childhood obesity and must be addressed.Footnote ¹¹ However, the EU’s response to unhealthy food marketing to date has largely been ineffective.

The main provision of EU law purporting to address the exposure of children to unhealthy food marketing is Article 9(2) of the AVMS Directive, which provides:

Not only does this provision rely on the ineffective mechanism of self-regulation, as discussed more fully in the previous contribution to this Special Issue, but it also contains gaping holes that allow even more freedom to industry operators to define the scope of their codes of conduct narrowly, leaving a broad range of programmes, media and marketing techniques outside the purview of the EU. This should not be read as suggesting that the EU should regulate all forms of unhealthy food marketing; this would infringe the principle of conferred powers, as the EU painfully realised when the CJEU annulled the First Tobacco Advertising Directive in 2000.Footnote ¹² Rather, we are suggesting that the EU reflect on how it should regulate cross-border marketing for unhealthy food.

Article 9(2) and the AVMS Directive more generally fall short of implementing the WHO Recommendations in several respects, insofar as their scope is limited and cannot promote the comprehensive approach that Recommendations 2 and 3 call for. Firstly, by only referring to “audiovisual commercial communications accompanying or included in children’s programmes”, this provision is unlikely to significantly reduce (if at all) the overall exposure of children to unhealthy food marketing. As the UK case study below clearly shows, most of the television that children watch is outside children’s programmes; rather, they view programmes intended for mixed audiences. The fact that the proportion of children does not exceed 35% of the total audience, as per the EU Pledge, does not mean that many children in absolute numbers are not members of the audience. The research that the EU commissioned on the exposure of children to alcohol marketing strongly supports this assessment, in that it has shown that for children aged 4–14 the part of the day with the highest average hourly viewing rates was 17:00–20:59 in all nine selected Member States except Italy and Spain, where it was 21:00–23:59. The part of the day with the highest average hourly ratings was found to be the same for children 15–17 and for adults, namely 17:00–20:59 in the Czech Republic, Finland and the UK, and 21:00–23.59 in Austria, Germany, Italy, the Netherlands, Romania and Spain.Footnote ¹³

Secondly, many of the media that are used on a daily basis by children do not fall within the scope of the Directive. As we noted back in 2013, audiovisual commercial communications are defined in the AVMS Directive as “accompany[ing] or [being] included in a programme in return for payment or for similar consideration or for self-promotional purposes”.Footnote ¹⁴ Consequently, promotional messages appearing on social media platforms, corporate websites, and user-generated video publishing websites such as YouTube are not covered by the Directive, as they are not included in a “programme”,Footnote ¹⁵ excluding a number of promotional techniques that are increasingly used to promote unhealthy food to children.Footnote ¹⁶

Thirdly, the EU does not address marketing techniques that are particularly powerful at influencing children. In particular, no mention is made in the AVMS Directive of the use of celebrities, the use of licensed or equity brand characters, the offer of free toys...Footnote ¹⁷ Only the use of nutrition and claims made on food is addressed at EU level by Regulation 1924/2006 and requires prior-authorisation.Footnote ¹⁸

The fact that the EU has not defined some of the key notions it relies upon makes the effectiveness of Article 9(2) even more doubtful. Firstly, the EU has not defined the term “children”, thus leaving significant leeway to the signatories of the EU Pledge to define a child as less than 12 years of age. However, this definition does not recognise the growing research that demonstrates that teenagers’ food preferences and consumption patterns are also negatively influenced by unhealthy food marketing. The EU-funded I-Family Study, which concluded in February 2017, is unequivocal in this respect,Footnote ¹⁹ and adds to the research that the second contribution to this Special Issue has presented.

Moreover, by failing to adopt a nutrient profiling system, the EU has not provided any level playing field for the classification of foods into healthier or unhealthier categories. The question is left exclusively to the signatories of the EU Pledge (or to Member States that wish to exceed the minimum standard laid down by Article 9(2)). This failure does not come as a surprise, in that the European Commission never even fulfilled its legal obligation under Regulation 1924/2006Footnote ²⁰ to adopt a nutrient profiling scheme for the purposes of determining when nutrition and health claims can be made on food by the end of January 2009.Footnote ²¹ However, this failure is extremely problematic in light of the objective of the WHO Recommendations to restrict the marketing of unhealthy food to children, as opposed to any food.Footnote ²²

In 2012, the Commission published its First Application Report on the AVMS Directive.Footnote ²³ After recognising that “Member States must encourage audiovisual media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communications in children’s programmes [for unhealthy food]”,Footnote ²⁴ the Commission called for “more effort […] to create scale, support and best practice for codes of conduct on inappropriate commercial communications for [unhealthy food] targeting children. The effectiveness of such codes of conduct must be further assessed”.Footnote ²⁵ The starting point for the revision of the AVMS Directive had therefore been set very low indeed. Since then, however, one could have hoped that the issue would have gained some momentum following the adoption of the EU Action Plan on Childhood Obesity 2014–2020. The Plan acknowledges the “strong link between TV and screen exposure and adiposity in children and young people” and called on the food industry to review and strengthen its commitments. In particular, it noted that “these efforts to restrict marketing and advertising to children and young people should include not only TV but all marketing elements, including in-store environments, promotional actions, internet presence and social media activities”.Footnote ²⁶ Even though Member States recognise the limited scope of the EU Pledge, they did not envisage in the Plan the adoption of any legally binding rules – self-regulation remains the credo of the EU’s response to the harmful impact of unhealthy food marketing on children’s health. The gap between the global and unanimous commitment made by Member States at the World Health Assembly in May 2013 to halt the rise of childhood obesity by 2025 and what they seem to be prepared to do collectively at EU level has never seemed so wide. One can only deplore that this gap is most unlikely to be bridged any time soon.

2 Fading hopes to witness the adoption of EU-wide legally binding and effective restrictions on the marketing of unhealthy food to children

The Commission published a proposal for the revision of the AVMS Directive on 25 May 2016.Footnote ²⁷ Referring specifically to the WHO Regional Office for Europe’s nutrient profile model,Footnote ²⁸ the Commission noted that “Member States should be encouraged to ensure that self-and co-regulatory codes of conduct are used to effectively reduce the exposure of children and minors to audiovisual commercial communications regarding [unhealthy food]”.Footnote ²⁹ As one could have expected following the 2012 Application Report, this proposal falls short of what is required to effectively protect children from the detrimental impact that unhealthy food marketing has on their health.

Firstly, as far as Article 9(2) specifically is concerned, the Commission has not proposed to supplement the EU Pledge with any EU-wide legally binding provisions. Instead, it has proposed that its wording should be slightly amended to address “the exposure of children and minors” to unhealthy food marketing, thus moving away from the narrow concept of “children’s programmes”. As discussed above and in other contributions to this Special Issue, the focus on exposure is key. Nevertheless, without any binding EU-wide harmonising standard, the proposal to amend the wording of Article 9(2) is unlikely to change the approach that the signatories of the EU Pledge have adopted, requiring that at least 35% of the audience is made up of children. The stance of the Commission is most disappointing in light of existing research showing: (1) the limits of self-regulation in contributing to positive, durable health outcomes; and (2) the importance of adopting comprehensive restrictions to unhealthy food marketing to ensure that industry operators do not shift their investment from regulated to unregulated programmes or from regulated to unregulated media.

Beyond the provisions concerning food marketing specifically, the Commission also proposes to liberalise the provisions of the Directive on the placement of advertising. Two provisions are particularly relevant. Firstly, Article 23 would be amended to contain a daily limit on television advertising rather than an hourly limit as things currently stand: “1. The daily proportion of television advertising spots and teleshopping spots within the period between 7:00 and 23:00 shall not exceed 20%”. This means that a broadcaster will have more flexibility to decide when to insert advertising and teleshopping spots in television programmes within the limits set by the Directive. One could venture the hypothesis that this will lead to more marketing in programmes with high audience thresholds, and less in programmes with lower audience thresholds – with an overall increase in exposure to marketing. Apart from the impact that this provision could have on the quality of the overall experience of viewers across Europe who will have to potentially cope with more advertising breaks than ever before, one can legitimately fear that this provision, if adopted, will lead to more exposure to advertising, irrespective of the calls on industry operators to adopt codes of conduct to limit such marketing. This is all the more likely as the 20% limit does not apply to: (a) announcements made by the broadcaster in connection with its own programmes; (b) sponsorship; and (c) product placement. Exposure to various forms of marketing will therefore exceed 20% overall if programmes are sponsored and include product placement.

Secondly, Article 11 in the new version proposed by the Commission would further liberalise product placement. In the current version of the AVMS Directive, Member States have an option to ban product placement or not. It is true that the ban on product placement would remain in children’s programmes (as is currently the case) and would be extended to “programmes with a significant children’s audience”. This reflects the concern that children often are exposed to marketing even in programmes that are not classified as children’s programmes. Unfortunately, however, the notion of “significant” seems to lay down a high threshold, which will in turn allow industry operators to continue to promote unhealthy food to children. This is particularly insidious in light of the report published on 25 May alongside the proposed revision of the AVMS Directive that children are affected by embedded marketing (focus of the study on online games) even though they do not always recognise it and that they openly declare not to like it.

It is true that the Commission has recognised that “new types of content, such as short videos or user-generated content, gain increasing importance and new players, including providers of video-on-demand services and video-sharing platforms, are now well established”.Footnote ³⁰ However, the proposal also specifies that “social media services are not included, except if they provide a service that falls under the definition of a video-sharing platform”.Footnote ³¹ The scope of the AVMS Directive would therefore be slightly extended,Footnote ³² but would still contain significant gaps, leaving major sources of unhealthy food marketing to children uncovered, notwithstanding their inherently cross-border nature. Furthermore, the Commission’s proposal does not propose to ban unhealthy food marketing to children on video-sharing platforms. Rather, it merely refers to Directive 2005/29, which bans misleading, aggressive and otherwise unfair business-to-consumer commercial practices, defining the notion of “unfair” too narrowly as to be interpreted as supporting an EU-wide ban on unhealthy food marketing to children.Footnote ³³

Overall, therefore, the Commission has not taken on board all the evidence that has accumulated over the years on the exposure of children to alcohol and food marketing, including the evidence that it has commissioned itself. Its unshakeable, non-evidence based belief in the virtues of self-regulation is nothing short of “dogmatic”. The Commission’s reference to “effective enforcement” in the general provision it proposes to introduce on codes of conduct, “including when appropriate effective and proportionate sanctions”.Footnote ³⁴

The fact that “health” is hardly mentioned as a public interest worthy of consideration in the case supporting the Commission’s proposal is most concerning, not least in light of the EU’s duty to ensure a high level of public health protection in the development and implementation of all its policies. It is clear that the Commission has paid lip service to this obligation.Footnote ³⁵ This is particularly problematic for Member States that are keen to ensure that children’s exposure to unhealthy food marketing is significantly limited. Is it not worth highlighting that the right to health is not mentioned alongside the right of commercial operators to trade, to property and to expression? There is admittedly a brief mention of the right of the child but it is not fleshed out: despite claims that the Commission is going to take the best interest of the child as a primary consideration (as mandated by Article 24 of the EU Charter on fundamental rights), there is no evidence that this has indeed been the case in this instance.Footnote ³⁶

Civil society responded critically to the Commission’s proposal.Footnote ³⁷ Nevertheless, their voice does not seem to have been heard: despite its significant shortcomings, the Commission’s proposal is threatened to become even less effective in addressing unhealthy food marketing to children as the legislative process is unfolding. The final text that could ultimately be adopted at EU level may fall even shorter of evidence and be further diluted. “Cutting red tape”, even if it is to the detriment of our most vulnerable consumers, has become the sole concern of an ultra-liberal EU.

On 10 May 2017, the Committee on Culture and Education presented its report on the revision of the AVMS Directive to the European Parliament.Footnote ³⁸ Apart from the continued emphasis on self-regulation and the proposal to suppress any reference to the WHO Regional Office for Europe’s Nutrient Profiling model,Footnote ³⁹ the Culture Committee has suggested that the Commission’s proposal be amended to remove any reference to “programmes with a significant children’s audience” (and maintain the existing wording of “accompanying or included in children’s programmes”), as such notion is “neither clear nor legally sound, because programmes not initially targeting children, such as sport events or TV singing contests, may fall within this category”.Footnote ⁴⁰ Wasn’t the whole idea precisely to address the exceedingly limited scope of the AVMS Directive and ensure that children exposed to unhealthy food marketing during sports events or TV singing contests would be effectively protected from such exposure? This position is all the more difficult to grasp if read in light of the proposal to require that the codes of conduct on unhealthy food marketing “shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages”.Footnote ⁴¹ How does the Committee suggest that exposure will effectively be reduced if only children’s programmes are included in the scope of the EU Pledge? This is counterintuitive and flies in the face of existing evidence. Nevertheless, at its plenary session on 18 May 2017, the European Parliament gave a mandate to the Culture Committee to start discussions with the Council on the basis of the amendments it had proposed to the Commission’s proposal by 314 votes to 266 with 41 abstentions.Footnote ⁴²

The failure of the two rapporteurs of the Culture Committee, Sabine Verheyen and Petra Kammerevert, to act in light of the EU’s mandate to ensure a high level of public health protection is resounding. Even industry actors themselves, the supposed beneficiaries of the Commission’s mission to “cut red tape”, have called on the EU to do more in helping them determine what should be seen as healthier or unhealthier food. On 15 May 2017, several major food manufacturers wrote an Open Letter to First Vice-President Frans Timmermans and other Commissioners jointly with major public health and consumer umbrella organisations urging the EU to “take decisive action” and adopt an EU-wide nutrient profiling system for nutrition and health claims “without further delay”.Footnote ⁴³ Such a consensus is rarely seen in a policy area such as the regulation of food marketing where views have tended to be notoriously polarised.

Another curious feature of the legislative debate as it is unfolding at EU level is the divisions that seem to reign within the Commission itself. DG CONNECT is in the driving seat and its approach to the regulation of unhealthy food and alcohol marketing to children suggests that, despite the wide amount of evidence it has commissioned as part of the revision of the AVMS Directive, it still has very little understanding of the health issues at stake that call for an EU-wide response. By contrast, DG HEALTH AND FOOD SAFETY seems to understand the limits of self-regulation in policy areas where real or perceived conflicts of interest are unavoidable. The tensions are palpable. The Commission, however, is bound to speak with one voice; and in the current climate of neo-liberalism, DG HEALTH clearly does not have the loudest voice – if it has any voice at all!Footnote ⁴⁴

1 Implementing the WHO Recommendations may require the adoption of trade restrictive measures

The CJEU has broadly interpreted the scope of Articles 34 and 56 TFEU on the free movement of goods and services respectively, such that most restrictions on business practices that hinder or impede the free movement of goods or services – including many forms of marketing regulation – are likely to be caught.Footnote ⁴⁶ We must therefore carefully categorise the range of marketing measures that Member States could adopt, to establish which are likely to be caught by the Treaty and which are not. The Court’s case law has established four possible categories of measures:

– Measures that discriminate based on origin (for example, a ban on the marketing of certain products on the ground that they originate from other Member States), which always fall within the scope of the Treaty prohibitions and may only be justified in accordance with the derogations provided within the Treaties. Such measures are relatively rare and their justification places a high burden of proof on Member States because of their prima facie discriminatory nature.Footnote ⁴⁷ This would be the case if a Member State adopted a nutrient profile that would explicitly put its food manufacturers or producers at an advantage over other EU traders.

– Measures that do not explicitly discriminate but rather impose requirements that create a double regulatory burden for imported goods, which are always considered indirectly discriminatory and are therefore caught by the Treaty prohibitions.Footnote ⁴⁸ For example, marketing restrictions requiring changes in labelling or packaging,Footnote ⁴⁹ or which prohibit promotional content or giftsFootnote ⁵⁰ would fall within this category.

– Measures that place requirements on goods which are not discriminatory and which do not implicate cross-border movement in any way. These are measures that are outside the scope of the EU’s internal market harmonisation powers, such as the regulation of adverts on “posters, parasols, ashtrays and other articles used in hotels, restaurants and cafés, and the prohibition of advertising spots in cinemas”.Footnote ⁵¹ These measures fall outside the scope of the EU Treaties altogether and do not have to be justified by Member States to be deemed compatible with EU law.Footnote ⁵² For example, in Hünermund the CJEU concluded that a ban on advertising outside pharmacies would “not affect the marketing of goods from other Member States differently from that of domestic products”.Footnote ⁵³ In particular, Member States should be able to regulate in-school marketing without triggering their EU free movement obligations, thus implementing WHO Recommendation 5 that requires that “settings where children gather” should be free from unhealthy food marketing.

– The fourth category is significantly more difficult to define. It relates to the many marketing restrictions that do not impose any obvious barriers on intra-EU trade but nonetheless restrict market access. For example, if a country adopts television advertising restrictions, the question arises whether this measure – which seems to apply to all traders – does actually apply equally in law and in fact to them all or whether it puts foreign traders at a disadvantage. Regarding goods, even though a marketing measure may constitute a Keck selling arrangement and therefore fall prima facie outside the scope of Article 34 TFEU,Footnote ⁵⁴ it may still be caught on the basis that marketing restrictions can have an indirectly discriminatory effect on the free movement of goods, even if applied equally in law. Advocate General Jacobs observed in his Opinion in Leclerc-Siplec that:

Following this reasoning, the CJEU has concluded that “the possibility cannot be ruled out that to compel a producer to discontinue an advertising scheme which he considers to be particularly effective may constitute an obstacle to imports”.Footnote ⁵⁶ The position is similar for services. In Gourmet the Court held that a ban on advertising “even if it is non-discriminatory, has a particular effect on the cross-border supply of advertising space, given the international nature of the advertising market in the category of products to which the prohibition relates, and thereby constitutes a restriction on the freedom to provide services”.Footnote ⁵⁷ Therefore, marketing measures that only have a potential and indirect influence upon the free movement of goods and/or services might still fall within the scope of the EU Treaties and require justification.Footnote ⁵⁸

Thus, the position currently appears to be that the CJEU will assume that any marketing measure with cross-border implications should fall within the scope of either Article 34 or 56 TFEU. Recently the CJEU even seems to be applying a pure market access test to public health measures, holding that measures such as the minimum unit pricing measure in Scotch Whisky Footnote ⁵⁹ fall within the scope of the free movement provisions without even categorising the restriction in question.Footnote ⁶⁰ This adds further weight to the presumption that a broad range of marketing measures will be caught by the Treaty.Footnote ⁶¹

The significance of this for Member States wishing to implement the measures called for by the WHO Recommendations should not be understated. If a Member State’s marketing measure is caught by the Treaty prohibitions, the Member State must be prepared to explain why a restriction to free trade – even one that is only indirect and completely unintentional – should be tolerated, even if that restriction is created by the pursuit of public health objectives. This places the burden of proof on Member States to produce evidence to legitimise the regulatory choice that they have made.Footnote ⁶² This process is all the more burdensome given that the CJEU is devoting increasing attention to proof and evidence in its review of justifications,Footnote ⁶³ as discussed below.

In summary, the CJEU’s case law on the scope of Article 34 and 56 TFEU places Member States in a difficult position. On the one hand, they are expected to enact measures to restrict the marketing of unhealthy food to children (the WHO Recommendations). On the other, they are prohibited from enacting marketing measures that restrict intra-Union trade in goods and services (Articles 34 and 56 TFEU), except if they can explain how the measure’s public health objectives can justify its trade-restrictive effects, which may be highly burdensome.Footnote ⁶⁴ However, in the next subsection we argue that Member States should not be discouraged from implementing the Recommendations. The justification of a trade-restrictive marketing measure depends on the proportionality of a measure.

2 The proportionality of trade-restrictive controls on unhealthy food marketing to children

If a trade-restrictive measure pursues one of the legitimate objectives set out in Article 36 TFEU or the mandatory requirement/objectives of general interest doctrine, and is compliant with the principle of proportionality, it may remain in place as a justified restriction on intra-EU trade. If these conditions are not met, the measure will be unjustified, and the restriction on trade will have to be removed.

It is well established that measures which seek to restrict the marketing of goods or services on public health grounds pursue a public interest objective. The connection between advertising restrictions generally and the protection of consumers and public health was established in several cases, not least Commission v France (Loi Evin) Footnote ⁶⁵ and Gourmet,Footnote ⁶⁶ while the connection between food labelling requirements and the protection of consumer and public health was established in cases such as Van der Veldt Footnote ⁶⁷ and Solgar Vitamin’s.Footnote ⁶⁸ In light of the evidence base supporting the WHO Recommendations (as presented in the second contribution to this Special Issue),Footnote ⁶⁹ it should now be relatively uncontentious that national measures imposing restrictions on unhealthy food marketing to protect children’s health pursue a legitimate objective.

The Court’s case law recognises that Member States benefit from a broad margin of discretion as to how they pursue legitimate public health protection objectives, and that their discretion may be exercised “having regard to the particular social circumstances and to the importance attached by those States”Footnote ⁷⁰ to the public health objective.

This is not to say, however, that this discretion is unlimited. Even though Member States are primarily responsible for the health of their citizens, the fact remains that “the burden of proving circumstances justifying a derogation from the principle of the free movement of goods rests on [them]”.Footnote ⁷¹ Discharging this burden of proof requires that the Member State concerned establishes that the measure complies with the principle of proportionality.

To be proportionate, a measure must be “appropriate to secure the attainment of the objective which they pursue and not go beyond what is necessary in order to attain it”.Footnote ⁷² While several efforts have already been made at national level to regulate unhealthy food marketing to children, as discussed in this Special Issue, none have adopted broad statutory prohibitions on such marketing, which would amount to a comprehensive approach according to WHO Recommendations 2 and 3. As the CJEU has not had the occasion to examine the proportionality of national food marketing restrictions with the EU Treaty, we analyse relevant CJEU case law on marketing, food regulation, and the protection of children, to explore how such measures could be assessed.

The intensity of the CJEU’s proportionality review depends on the severity of the restriction placed upon trade. For total bans on advertising, the burden of proof resting on the Member States is high.Footnote ⁷³ However, the case law that deals directly with total advertising bans, as in Gourmet, does not indicate that such a measure can never be justified. Rather, these cases have simply indicated that the referring national court is to have the final say on proportionality, and that total advertising bans are not contrary to Article 34 “unless it is apparent that, in the circumstances of law and of fact which characterise the situation in the Member State concerned, the protection of public health against the harmful effects of alcohol can be ensured by measures having less effect on intra-Community trade”.Footnote ⁷⁴ While the Swedish court in Gourmet proceeded to hold that the impugned ban on alcohol advertising across a range of media was disproportionate, the most that this tells us is that the fate of a total ban on advertising is determined by the ability of the Member State to show, with evidence, that another measure would not achieve as effectively the public health objectives that are sought.

The Scotch Whisky litigation provides an excellent example – the Scottish government may not have framed its minimum unit pricing measure or presented its evidence as effectively as it could have done before the CJEU, resulting in an ambivalent decision on proportionality. Before the Inner House of the Court of Session, however, the Scottish government was given the opportunity to revise and renew its presentation of the evidence base, and as a result the Inner House delivered a judgment that rules that the measure was proportionate. Thus, for any stringent public health measure, whether it be total bans on advertising or setting price floors, the proportionality of measures is determined though engagement with evidence.

Where less stringent or partial prohibitions on advertising or labelling are at issue, the CJEU is more likely to find national measures to be proportionate. In Van der Veldt for example, the CJEU noted that “labelling is one of the means that least restricts the free movement of products within the Community”,Footnote ⁷⁵ and such measures fulfilled the obligation to be “not out of proportion to the desired result and … hinder as little as possible the importation of products”.Footnote ⁷⁶

Thus, one might tentatively conclude that the narrower in scope an advertising measure is, the more likely it is to be proportionate, although scope alone is not determinative of proportionality. It is apparent that there is a general trend towards a closer and more empirical evaluation of the proportionality of Member State public health measures.Footnote ⁷⁷ Elsewhere, and in relation to alcohol marketing, the CJEU tended to engage less rigorously with proportionality in its earlier public health case law,Footnote ⁷⁸ this appears to be the case for food marketing too – for example in the Douwe Egberts decision in 2004 the CJEU based its proportionality analysis partly on an “assumption” of the conceivability of the existence of risk.Footnote ⁷⁹ However as Shuibhne and Maci demonstrate, the “relevance of proof has clearly acquired enhanced significance in more recent free movement case law”.Footnote ⁸⁰ Their analysis, published in 2013, has been further strengthened by the CJEU’s decision in Scotch Whisky of December 2015, in which the CJEU engaged in some detail with the evidence submitted.

Member States wishing to implement the WHO Recommendations should pay close attention to the application of proportionality in Scotch Whisky. The Court appeared to ask whether minimum unit pricing (MUP) “offered anything more towards the achievement of the legitimate objective than the alternatives”,Footnote ⁸¹ rather than whether the alternatives would be as effective. This subtle shift in emphasis is important, as it appears to generate an evidentiary burden on Member States that is at odds with the margin of discretion doctrine that has been espoused by the Court in most of its previous public health case law.Footnote ⁸² Nevertheless, the CJEU did clarify that Member States do not have to “prove, positively, that no other conceivable measure could enable the legitimate objective pursued to be attained under the same conditions”,Footnote ⁸³ but rather must demonstrate that it “may reasonably be concluded from the evidence submitted”Footnote ⁸⁴ that the chosen measure is appropriate and necessary.

Member States should note that this does not necessarily mean demonstrating that advertising alone will reverse growing childhood obesity rates. This would be simply impossible, as there is no “magic bullet” able to solve the problem: effective strategies will need to be multi-pronged.Footnote ⁸⁵ The General Court showed in Dextro Energy that the EU judicial institutions are increasingly aware of the confluence of evidence supporting action on obesity prevention,Footnote ⁸⁶ and the Scotch Whisky decision showed that the EU judiciary is aware that public health strategies are often comprised of multiple interlinking policies.Footnote ⁸⁷ Member States should, however, ensure that they approach the justification of controls on unhealthy food marketing with a clear idea of what the precise public health objectives of said marketing controls are, and how the evidence base supports their adoption. Fortunately for Member States, an ideal starting point for this is provided by the WHO Recommendations themselves, and other WHO reports and strategies concerning childhood obesity, as other contributions in this Special Issue have highlighted.

Member States should be further encouraged by the way in which the CJEU has developed its jurisprudence on the proportionality of measures where the protection of children’s health is specifically at stake. In earlier public health and consumer protection case law, even that which specifically concerned measures designed to protect children, the CJEU paid little attention to the nature of the public health interest being pursued. For instance, in De Agostini the Court acknowledged that “the protection of consumers in general are overriding requirements of general public importance”,Footnote ⁸⁸ but declined to mention the protection of children specifically. In Muller, which concerned prohibitions on food additives, the CJEU noted evidence from the French government that children were major consumers of products likely to contain allegedly harmful additives, however, it went no further in factoring the protection of children specifically into its decision on proportionality.Footnote ⁸⁹ Even in its tobacco judgments at the turn of the century, the protection of children’s health was absent from the analysis of proportionality.Footnote ⁹⁰

However, the CJEU has given more attention recently to specific populations targeted by health protection measures. In Pillbox 38, the CJEU noted that “young people who are particularly sensitive to advertising”Footnote ⁹¹ would be exposed to fewer promotional messages as a result of a general ban on electronic cigarette advertising – an outcome that did not exceed the limits of what was necessary to protect public health. In Solgar Vitamin’s, a certain level of public health protection that is “appropriate for a specific group of consumers, such as children”, could be applied to the whole population as long as the measure is “limited to what is necessary to protect the health of the persons belonging to that group”.Footnote ⁹² Further tobacco case law reflects clear concern for the protection of children’s health.Footnote ⁹³ This more recent jurisprudence potentially indicates that measures specifically crafted to afford a high level of protection to young people might be more likely to be seen as necessary to protect public health.

3 Implications for the reconciliation of WHO commitments and internal market obligations

What are the implications of the foregoing analysis for Member States seeking to implement the WHO Recommendations? The Court’s case law establishes that Member States must demonstrate, through the use of evidence, that trade-restrictive marketing measures adopted to implement the WHO Recommendations are necessary and appropriate to achieve the legitimate objective of protecting public health, if they are to comply with EU free movement law. Furthermore, the more stringent the restriction, the heavier the burden of proof on Member States will be. Given that the Recommendations call for strong controls on marketing, Member States must be prepared to mount a rigorous defence of any such measures that they adopt. This is very likely to happen, despite the unanimous recognition by the World Health Assembly that such measures should be adopted: one can learn from the many challenges that tobacco manufacturers have mounted against the implementation by States of the Framework Convention on Tobacco Control. However, it is precisely this fact that should embolden Member States to implement the WHO Recommendations, and which should put them on the front foot when articulating the evidence to support their regulatory choices. The earlier they frame their policies in light of existing evidence, the more likely they are to succeed in defending industry-led challenges.

Member States should not, therefore, refrain from placing the strongest of restrictions upon unhealthy food marketing to protect children. The CJEU’s case law indicates that if Member States can provide evidence to demonstrate that their measures are necessary, then these measures will be proportionate and therefore compatible with the EU Treaties. Nothing in the CJEU’s case law indicates that the stringency of a measure alone will be fatal in determining its proportionality. Should Member States restrict unhealthy food marketing as comprehensively as possible in light of WHO Recommendations 2 and 3, the key issue for them will be supplying the CJEU with evidence that will demonstrate that preventing adults from being exposed to certain marketing messages for unhealthy food is necessary in order to protect children from the damaging effects that exposure to those marketing messages have on their health. Member States should, therefore, present the evidence base supporting the implementation of the WHO Recommendations as clearly and unequivocally as possible. Since Scotch Whisky, it is evident that the CJEU is willing to engage in closer proportionality reviews of national public health measures, placing more emphasis on evidence than it used to.

Finally, we might note with optimism that the CJEU has recently placed greater emphasis on the external public health commitments of the Member States. For example, in its recent case law upholding the validity of the Tobacco Products Directive, the CJEU made specific mention of the guidelines drawn up to support the implementation of the Framework Convention on Tobacco Control. It stated that while the guidelines are non-binding they are intended to assist the adoption of measures in accordance with the FCTC,Footnote ⁹⁴ and “are based on the best available scientific evidence and the experience of the Parties … and have been adopted by consensus”,Footnote ⁹⁵ and as such “are intended to have a decisive influence on the content of the rules adopted in the area under consideration”.Footnote ⁹⁶ This might be considered encouraging for Member States seeking to use the WHO Recommendations as a basis upon which to implement stricter marketing measures: while the WHO Recommendations are not, by nature, legally binding, they are nonetheless based on accumulated scientific evidence on the harmful impact of unhealthy food marketing on children, they have been adopted by unanimous consent, and they are intended to guide state action in the field of obesity prevention. Therefore, the potential role of the WHO Recommendations themselves in influencing the direction of the proportionality analysis should not be overlooked.Footnote ⁹⁷