Conclusions and Recommendations

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

Today’s column presents the last in the series on HFSS food advertising regulation. Over the past few weeks I have examined several aspects related to HFSS food advertising regulation. I started off by arguing that States, in certain circumstances, have obligations arising from ‘the right to adequate nutrition’ under international human rights law to regulate HFSS food advertising. This was followed by a column shedding light on some shortcomings of the Dutch system, including its self-regulating character. In the subsequent column, I presented European trends emphasizing a commercial approach, rather than a health- and human rights-based approach. These trends may account for the Dutch regulatory approach.

In my previous column, I gave a non-exhaustive overview of different approaches adopted in other European States, indicating that not all States that have adopted statutory regulation have done so for specific health- and human rights-purposes – but, rather, commercial interests have also been motives for regulation.

What can we take away from these columns? First of all, I think it is important to emphasise that there is still significant room for improvement in the field of HFSS food advertising regulation. Similarly, the fact that there are many different approaches to HFSS food advertising regulation illustrates that there is no clear pan-European approach. Awareness for policies preventing obesity is increasing, thereby revealing that this field is still developing, and we will hopefully see further progress in the future.

There are also several specific recommendations to be made concerning the substance of regulations – I have picked three points that stand out for me. As I pointed out previously, HFSS food advertising regulation mainly concerns advertising targeted at children. This can be explained by the fact that adults are considered to be ‘advertising-literate’ (i.e. that they can correctly interpret advertisements), whereas children have not acquired this skill yet and, as such, must be protected.[1] However, there are (at least) three points that – in my opinion – plead for the need for extension of regulation to adults. First of all, adults (parents) play a decisive role in what their children consume: through ‘pester powers', children may convince parents to purchase unhealthy products.[2] Secondly, obesity rates are considerably higher among adults than among children.[3] Lastly, drawing inspiration from the field of tobacco control, the argument that adults are ‘advertising-literate’ and as such do not need protection can be legally invalidated by the generally well-accepted ban on tobacco advertising. Several legal instruments accept the principle that ‘tobacco advertising, promotion and sponsorship increase tobacco use and that comprehensive bans on tobacco advertising, promotion and sponsorship decrease tobacco use’.[4] If the banning of tobacco products advertising is recognized as a useful tool for reducing tobacco consumption, advertising-literacy should not be too easily accepted as an argument against HFSS food advertising regulation.

Furthermore, efforts to regulate social media advertising require extra attention. Social media regulation is an important point of concern, as technological innovations develop quicker than policies can be adjusted and adopted. This concern is aggravated especially in light of the current pandemic, which has been estimated to increase social media usage globally by 21 per cent.[5] This is problematic for a number of reasons, including the fact that social media influencers can influence our lives with hardly any ‘filters’. The Netherlands has recently taken action in this regard, and included the application of the Mediawet to Youtube, Instagram and TikTok.[6] This means that actors active on these mediums now also have to abide by legally binding advertising rules, and can be fined if they fail to do so. Although health was not necessarily the decisive factor here – but it rather concerns a tool protecting commercial interests –further clarification is needed as to the scope of application of the law ratione personae. This development is an important first step to further regulating social media platforms.

Lastly, a reoccurring theme in my columns, as well as in the literature is that of self-regulation. Self-regulation should not be sustained in this field, as the public interest is insufficiently protected. As an alternative, for example, co-regulatory systems as well as statutory regulation have been proposed.[7]

All of the above points present structural problems. A health- and human rights-based approach is necessary for the correct interpretation and implementation of regulatory policies. The added value of human rights law in this specific field lies in the fact that it provides for interpretative tools and, as such, can provide guidance concerning the implementation of policies. Therefore, the inclusion of HFSS food advertising regulations in prevention policies is of great importance for the full realization of the right to adequate nutrition.

This column presents the last in the series on HFSS food advertising regulation, hopefully having provided readers with a clear and complete introduction into the field.

[1] For a further discussion on the advertising-literacy of children, see, for example, ‘Tackling food marketing to children in a digital world: trans-disciplinary perspectives – Children’s rights, evidence of impact, methodological challenges, regulatory options and policy implications for the WHO European Region’ (WHO Regional Office for Europe, 2016) 15-16; ‘Children and Parents: Media Use and Attitudes Report’ (Ofcom, 29 November 2017) < https://www.ofcom.org.uk/__data/assets/pdf_file/0020/108182/children-parents-media-use-attitudes-2017.pdf> accessed 6 December 2020, 150-157.

[2] Bridget Kelly and others, ‘A Hierarchy of Unhealthy Food Promotion Effects: Indentifying Methodological Approaches and Knowledge Gaps’ (2015) 115 American Journal of Public Health 86, 87; for a simplified representation of the model, see Emma Boyland and others, Evaluating implementation of the WHO Set of Recommendations on the marketing of foods and non-alcoholic beverages to children: Progress, challenges and guidance for the next steps in the WHO European Region (WHO Regional Office for Europe 2018), 9.

[3] According to the WHO, it is estimated globally that in 2016, 39% of all adults had overweight and 13% was obese, whereas approximately 18% of all children had overweight and 7% of all children was obese in 2016, ‘Obesity and Overweight’ (WHO, 1 April 2020) < https://www.who.int/news-room/fact-sheets/detail/obesity-and-overweight> accessed 30 November 2020.

[4] Guidelines for implementation of Article 13 of the WHO Framework Convention on Tobacco Control (Tobacco advertising, promotion and sponsorship), para. 3(a); the third recital of the Tobacco Advertising Directive seems to this premise, stating that ‘the legislation of the Member States to be approximated is intended to protect public health by regulating the promotion of tobacco […], thereby avoiding a situation where young people begin smoking at an early age as a result of promotion and become addicted’, EU Directive 2003/33/EC OJ L 152/0016, recital 3. Note, however, the difference in levels of addictiveness between tobacco products and HFSS food.

[5] Amy Watson, ‘Media consumption increase due to the coronavirus worldwide 2020, by country’ (Statista, 18 June 2020) < https://www.statista.com/statistics/1106766/media-consumption-growth-coronavirus-worldwide-by-country/#statisticContainer> accessed 8 July 2020.

[6] ‘Strengere regels voor influencers, maar wie eronder vallen is nog onduidelijk’ (NOS, 11 November 2020) < https://nos.nl/artikel/2356088-strengere-regels-voor-influencers-maar-wie-eronder-vallen-is-nog-onduidelijk.html> accessed, 30 November 2020.

[7] For an elaboration on the role of the government in this regard, see Set of Recommendations on the Marketing of Food and Non-Alcoholic Beverages to Children (World Health Organization 2010), Recommendation 6.