The ‘Commercial’ Approach to HFSS Food Advertising Regulation Explained: Economic Interests and Health at the European Level

By Dominique Mollet, University of Groningen, s.d.mollet student.rug.nl

Based on my previous column, it is safe to say that the Netherlands approaches HFSS food advertising regulation from a commercial perspective, rather than from the health- and human rights-based approach described in Part I of this series. In this column I argue that the European trends regarding HFSS food advertising constitute a possible factor that may have influenced the adoption of this stance. Previously, I pointed out a number of deficiencies within the Dutch self-regulatory instrument, and here I will connect two of these aspects to the existing European trends: the adherence to self-regulatory schemes and the commercial attitude to HFSS food advertising regulation.

It is important to note that under EU law there seem to be no significant obstacles for Member States to adopt HFSS food advertising regulation.[1] Even more, the EU has acknowledged the high prevalence of obesity and has recognized the importance of responding to this accordingly. It even has a somewhat integrated obesity prevention strategy. In the first decade of this century, the European Commission adopted the Strategy on nutrition, overweight and obesity-related health issues.[2] This strategy includes a wide range of policies encompassing different policy areas and aims to improve nutrition and prevent overweight and obesity. The EU platform for action on diet, physical activity and health constitutes one of the main tools of the Strategy.[3] Among its members are food business operators, consumer organisations, public health NGOs and scientific and professional associations. Members make voluntary commitments to support the Member States in achieving a number of goals, including the reduction of children’s exposure to the marketing of foods. This indicates that, unlike in the Netherlands, the marketing of HFSS food is explicitly recognized as an effective part of obesity prevention strategies at the EU level.

Nevertheless, although the recognition of the importance of an NCD-prevention policy is valuable, the EU initiatives do not necessarily promote compliance with the international standards. For example, as I explained in Part I of this series, self-regulation is discommended for regulating HFSS food advertising. Contrary to this, the Audiovisual Media Services (AVMS) Directive states that Member States shall foster self-regulatory schemes or encourage co-regulatory schemes ‘regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended’.[4]

Although the AVMS Directive recommends co-regulatory schemes, which is in conformity with the international guidelines, self-regulation should not be fostered. This is aggravated by the fact that, outside the formal scope of EU law, an over-arching self-regulatory advertising authority at the European level exists: the European Advertising Standards Alliance (EASA).[5] With regard to HFSS food advertising, the EASA monitors compliance with the EU Pledge, a voluntary initiative by a number of leading food and beverage companies. In this pledge, 23 companies, including McDonalds, Kellogg’s and Burger King, have combined their efforts to change food advertising to children. The structure of this platform demonstrates that at the European level, States can find support in their self-regulatory efforts, rather than strong discouragement as suggested by the international standards. Thus, the Dutch adherence to a self-regulatory scheme can potentially be explained by the European trend to (at least) not discommend self-regulation, and facilitate self-regulatory schemes.

Lastly, the commercial interpretation of HFSS food advertising regulation in the Netherlands can be explained by the Unfair Commercial Practices (UCP) Directive.[6] As described above, the AMVS Directive explicitly mentions health interests. Contrary to this, the UCP Directive protects consumers’ economic interest, but can still be crucial for HFSS food advertising regulation. The Directive prohibits aggressive and misleading forms of advertising, and as such it regulates with an eye on consumer protection. Consequently, this Directive can be invoked to prohibit certain forms of HFSS food advertising misleading consumers, based on grounds not related to health.[7] This approach also prevails in decisions of the Reclame Code Commissie, where it dismissed claims based on public health grounds, and assessed the complaints under the provision prohibiting misleading commercial practices.[8]

All the above is not to say that the European trends do not allow European States to address obesity through food advertising regulations. It is even of great importance that at the European level, obesity- and overweight-related problems are recognized, and that advertising regulation is recognized as an efficient policy tool. Nevertheless, the European trends promote HFSS food advertising regulation from an economic/commercial standpoint, rather than from a human rights-based and health-based approach. This is problematic in the sense that as such Member States are not sufficiently stimulated to adhere to the human rights-based approach suggested in part I of this series. In my next column, I will assess how other States go about this difference between the international standards and the European trends.

[1] Oliver Bartlett and Amandine Garde, ‘The EU’s Failure to Support Member States in their Implementation of the WHO Recommendations: How to Ignore the Elephant in the Room?‘ (2017) 8 EJRR 251, 261-2.

[2] ‘Strategy on nutrition, overweight and obesity-related health issues’ (European Commission) < https://ec.europa.eu/health/nutrition_physical_activity/policy/strategy_en> accessed 6 November 2020.

[3] ‘EU Platform for action on diet, physical activity and health’ (European Commission) <https://ec.europa.eu/health/nutrition_physical_activity/platform_en> accessed 6 November 2020.

[4] Directive 2018/-1808 Audiovisual Media Services Directive, Art 9(4).

[5] ‘European Advertising Standards Alliance (EASA)’ (European Economic and Social Committee) <https://www.eesc.europa.eu/en/policies/policy-areas/enterprise/database-self-and-co-regulation-initiatives/88> accessed 6 November 2020.

[6] Directive 2005/29/EC UCP Directive, Arts 5-9.

[7] For a more elaborate discussion, see Amandine Garde, EU Law and Obesity Prevention (Kluwer Law International, 2010) 221-6.

[8] See, for example, 2014/00422 (Reclame Code Commissie, 1 September 2014) <https://www.reclamecode.nl/(...)n-2014-00422/139102/> accessed 25 October 2020.