An encouraging obligation? HFSS food and drink advertising and codes of conduct under the Audiovisual Media Services Directive

Posted on December 10, 2009 | Filed Under national regulatory authorities, events / publications 

One of the more recent arrivals on the scene of regulatory concern for audiovisual policymakers and supervisory bodies is the promotion of unhealthy foodstuffs to children which may have adverse effects on their physiological well-being and development. As one among several factors feeding the development of childhood obesity as part of a wider obesity epidemic (information from the World Health Organization), marketing practices have increasingly come under scrutiny and regulatory authorities as well as elected representatives have directed their attention toward the issue. In Europe, already before the process of revising the regulatory framework for television broadcasting had come under way, countries like the UK were therefore considering regulatory action to address the endangerment of public health by food and drink advertising notably of products that are high in fat or salt or sugar (HFSS) (for a summary of the evidence to which UK Government policy responded in 2003, see this note by the Parliamentary Office of Science and Technology; for recent UK evidence regarding child obesity, see here and here).

With the adoption of the Audiovisual Media Services Directive, the diverse initiatives at the national level were complemented by a general European framework provision on advertising of unhealthy food and drink set out in Article 3e (2) AVMSD [the ‘food provision’] stipulating that

Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communication, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended.

The obligation thus made incumbent on the Commission and the Member States is similar to that of Article 3c of the new Directive, which requires national authorities to encourage providers to increase accessibility of their services to users with a hearing or visual disability. While both provisions target very tangible characteristics of both linear and non-linear audiovisual media services, the nature of the obligations that they impose inevitably leads to questions about their likely effectiveness. Arguably, it has not been since the introduction of the famous practicability clause of the Directive’s quota regime in Article 4 that a formulation probing the bounds of enforceability and judiciability to a similar extent has entered into the audiovisual acquis. Not only is an obligation to encourage likely to leave a rather wide margin of appreciation to the addressees, but the object of encouragement itself is defined in a manner that does not have any immediate bearing on the behaviour to be influenced, i.e., the scheduling of commercial communication promoting HFSS food and drink and other products with adverse health effects (for convenience summarily referred to as ‘HFSS advertising’ below).

What, then, is one to realistically expect from this provision in terms of curbing undesirable advertising messages across the entire range of linear and non-linear audiovisual media services? In a somewhat dystopian, yet conceivable scenario, one might anticipate limited Member State involvement, justifying a lack of activity on their behalf by pointing to the Commission’s shared responsibility in this area, combined with the eventual development of a wide range of disparate codes by service providers leading, in turn, to a fragmentation of the standards applicable to food and drink advertising. From the perspective of those countries and service providers already having taken measures to tackle the issue of HFSS advertising, on the other hand, one might be tempted to ask what difference the new obligation is likely to make to already existing practices and how the latter might be aligned so as to ensure compliance without the need for additional activity or intervention.

In the spirit of kick-starting discussion about what will become an ongoing obligation after expiry of the transposition deadline later this month, the Information Society Directorate’s Audiovisual and Media Policies Unit invited stakeholders to a workshop on codes of conduct for audiovisual commercial communications of foods high in fat, sugar and salt to children on 7 December 2009. The programme divided the day into four sessions, three of which were dedicated to capturing existing efforts of those entities most closely concerned by the food provision: advertising bodies, media service providers and regulators, while the fourth session took stock of current policy initiatives at the international, European and domestic level. Judging from the content of the presentations delivered throughout the various sessions on the day (soon to be available on the workshop’s website here), the major challenge going forward as far as code development is concerned may not be a lack of willingness on service providers’ behalf to adopt appropriate codes, or of national authorities to facilitate their development in a variety of ways, but indeed the proliferation of competing and possibly incommensurate codes, and possible conflicts of interest over code ownership. All of the participating speakers whether from the advertising industry, public or private media service providers, or national regulatory authorities presented success stories based on the particular initiatives that they had initiated:

Speaking on behalf of the advertising business, Will Gilroy from the World Federation of Advertisers presented data from two studies monitoring compliance with two distinct sets of commitments undertaken by industry itself to promote responsible advertising. The first of these, the Framework for Responsible Food and Beverage Marketing Communications, has been developed under the auspices of the International Chamber of Commerce, and constitutes an annex to the ICC’s general Advertising and Marketing Code. The Framework, which has been promoted as a contribution to the fight against childhood obesity, is applicable across media platforms and implemented through national self-regulatory schemes that ensure conformity of application with national custom and circumstance. A monitoring of advertisements coming within the Framework’s remit in eight EU Member States since 2005 found an average compliance rate across media of 98 per cent, and a specific compliance rate for television advertising of 96 per cent; future revisions to the monitoring scheme are planned to expand their coverage from traditional print and broadcast media to also include online advertising. Further evidence as to the effectiveness of industry-led self-regulatory efforts came from an assessment of the EU Pledge, a commitment undertaken by eleven of the world’s largest food advertisers (Burger King, Coca-Cola, Danone, Ferrero, General Mills, Kellogg, Kraft, Mars, Nestlé, PepsiCo, Unilever) to (i) not communicate about their products in primary schools, unless asked to do so for educational purposes; and (ii) not to target advertising of products at children under 12 years of age unless they fulfil specific nutrition criteria based on accepted scientific evidence and/or applicable national and international dietary guidelines. The group generally defines “advertising to children under 12 years” as advertising to media audiences with a minimum of 50 per cent of children under 12 years, but several companies have chosen to apply lower thresholds on a voluntary basis (see the company pledges). A study of participants’ compliance with these principles published in September 2009> found with regard to the latter of the two compliance ratings of 99.8 per cent for television and virtually 100 per cent for print and online media in six European markets, and a 93 per cent compliance rate with regard to communication in primary schools in four jurisdictions. These comparative data were supplemented by presentations on national self-regulatory efforts by industry in Belgium and Denmark that struck a similar note.

From the viewpoint of media service providers, Renate Dörr spoke on behalf of Germany’s public service broadcaster ZDF, making a point of highlighting the often more rigorous advertising rules that PSBs are subject to. In the case of the ZDF, advertisements are allowed only on the main national generalist channel, but not on additional specialist channels forming part of their portfolio, or in conjunction with their online services. Even without specific restrictions on HFSS advertising, the operator generally does not accept advertising accompanying children’s programming and has committed itself to implement all relevant codes of conduct endorsed by the German Advertising Industry Federation, ZAW (see specifically the Federation’s 2008 publication “Kinder, Werbung und Ernährung”). Beyond seeking to ensure compliance with these standards, Dörr emphasized that media service providers had a wider range of means at their disposal to address the problem of unhealthy dieting habits such as topical integration into editorial content; the provision of additional online content without advertising; and participation in campaigns promoting healthy lifestyle choices such as “Germany on the move/Deutschland bewegt sich”. ProSiebenSat1 representative Heiko Zysk argued along similar lines emphasizing what he referred to as the holy trinity of statutory obligations, industry self-regulation and voluntary measures adopted by individual service providers. As examples of the latter, he cited a number of formats either produced by ProSiebenSat1 or used in the context of the group’s operations across Europe (“The Biggest Loser”, “Lazy Town”, and “Peb & Pebber”). On par with Dörr, he held that media service providers, as part of their wider social responsibility, would have to give equal consideration to specific code commitments and the broader editorial context in which decisions about audiovisual commercial communications were made.

The third session provided examples of regulators’ own involvement in the development of relevant codes, whether through drafting, authorization or lending support to industry-led efforts. On behalf of the French CSA, Christine Kelly presented the Nutritional Charter (“La Charte Alimentaire”), a five-year self-regulatory initiative facilitated by the regulator, under which television broadcasters and producers commit themselves to providing general programming about healthy lifestyle choices, drawing attention to informational offers provided by the national Ministry of Health, and furnishing between 340 and 470 hours of programmes about dieting and exercising specifically targeted at young people, with the exact number of hours to be determined according to the channel’s profile (youth, public, private). The CSA as a co-signatory fulfils a monitoring role under the Charter, guaranteeing regular evaluation of broadcasters’ undertakings and communicating its findings to the Ministries of Health and Sport, and of Culture and Communication. From the Broadcasting Authority of Ireland, Aoife Clabby spoke about the review of the BCI Children’s Advertising Code, which is soon to be replaced by a new set of codes for audiovisual commercial communications following public consultation (download the consultation draft). Despite the consultation’s focus on transposing the AVMS Directive, the specific topic of HFSS food and drink advertising in audiovisual commercial communications and of a possible prohibition did not form part of its remit, and will instead be subject to separate consultation at a later point in time. Finally, Peter Burton of the UK Office of Communications provided an overview of its co-regulatory relationship with the Advertising Standards Authority, who is currently in charge of enforcing advertising standards in relation to television broadcasts and will likely assume a similar role in relation to non-linear audiovisual media services in the future. He credited the application of the progressively phased new rules for HFSS advertising through the co-regulatory structure for almost completely eliminating HFSS advertising around children’s programmes without reducing overall ad spend on food advertising. A full review of the rules and their impact will be forthcoming in 2010, following Ofcom’s 2008 interim review.

Given the widespread positive assessment of a variety of ongoing and projected initiatives to address the issue of HFSS advertising – which on the side of public authorities regularly form part of a broader governmental effort to target the public health issues engendered by the products in question – the question about the obligation incurred by Member States under Art. 3e (2) remains. Would, for example, exclusive reliance on statutory instruments designed to regulate HFSS advertising in the same way as it has been done by Ofcom effectively constitute failure to implement Art. 3e (2) of the Directive? How can activities other than the development of codes of conduct addressing themselves to the problem of HFSS foods effectively be accounted for? And does it even make sense to encourage media service providers to develop codes of their own where food and advertising industry codes already exist? Particularly when the target is to limit rather than altogether eliminate HFSS advertising, the development of such codes might yield interesting perspectives on the broadcasting industry’s evolving scheduling practices, although, as demonstrated by the ZDF’s intervention, existing practices might already achieve the provision’s intended objective without relying on an explicit code. For this reason, an obligation to encourage might be interpreted so as to not require any actual changes of policy as long as its objectives are being met and addressees of the provision can demonstrate that they have not negligently failed to act on their obligation. If, as the Commission suggested in its opening statement, there is indeed such a thing as insufficient action that goes beyond simply doing nothing at all, it shall be interesting to see what criteria can be developed by which to make this assessment. While pragmatically it seems clear that the major challenges in terms of actual results are likely to concentrate on audiovisual commercial communications in non-linear services because of their distinct presentational characteristics as well as the sub-sector’s organisation, the economic consequences as well as the issue of compliance monitoring will require sustained attention across service categories going forward. Ultimately, the biggest challenge to bringing this provision to life might come from an entirely different direction: the development of reliable and accepted nutrient profiling schemes on which recommendations of food intake are to be based, and which will therefore be key in determining the food provision’s scope of application. At the European level, the topic continues to be the subject of collaborative efforts between the Directorates General for the Information Society and Health and Consumer Affairs.

About this Post
author: Oliver Fueg | Permalink | | Print This Article |


Comments

Leave a Reply