By Anouk Wams, LLM Student International Human Rights Law, University of Groningen

The worldwide media coverage of Max Verstappen’s Formula 1 world championship, in a team owned and sponsored by Red Bull, exemplifies the need for a comprehensive regulatory framework on the advertisement of foods and beverages high in sugar, fat or salt, in other words, unhealthy food products according to the WHO.

Globally, 41 million people die of noncommunicable diseases (NCDs) each year, responsible for 71% of all deaths worldwide.[i] The risk of NCDs is increased through so-called modifiable risk factors, including tobacco use and unhealthy diets. As such, it is estimated that dietary risks accounted for 7.9 million deaths in 2019.[ii] The advertisement for unhealthy food products and beverages high in fat, sugar, or salt contributes to the proliferation of this risk factor.[iii] Various advertising methods exist, ranging from the more mainstream methods such as television advertisement to the sponsoring of events or sports teams.[iv] A case in point is the Formula 1 team ‘Red Bull Racing’, whose driver Max Verstappen became world champion. He was sponsored by Red Bull from tip to toe, helmet to car, generating a lot of attention for him and consequently, for Red Bull.[v] In this opinion piece, I argue why the Netherlands should try to lower the incidence of NCDs through the regulation of advertisement for unhealthy food products and beverages, especially when it is directed at children.

This issue touches upon the right to health and the right to food established in the International Convention on Economic, Social and Cultural Rights (ICESCR).[vi] The right to health encompasses “the prevention, treatment and control of epidemic, endemic, occupational and other diseases”.[vii] Moreover, the Convention on the Rights of the Child (CRC) also recognizes the right to health and mentions explicitly that disease should be combatted through “the provision of adequate nutritious foods”.[viii] Next to this, the right to food regulates its availability, accessibility, acceptability and quality. Further, the CRC emphasizes the importance of adequately nutritious food. The CRC is important because children are particularly vulnerable to the effects of unhealthy food marketing and, therefore, .[ix] In addition, children are not yet able to understand the paradoxicality of unhealthy food producers that sponsor sports teams, thereby conveying a positive association between their product and health and sports. This is acknowledged by the Committee on the Rights of the Child in General Comment 15, where the Committee states that “the marketing of these substances [i.e. ‘fast foods’] should be regulated”.[x]

The above rights create obligations on the Netherlands that has ratified both the ICESCR and the CRC.[xi] Nevertheless, the Netherlands has not adopted any legislation to regulate the advertisement of unhealthy food products, following the example set by EU law. Instead, consumers are left in the hands of industry self-regulatory initiatives at both the European- and national level, namely, the EU Pledge and the Dutch Code for Advertisement (NRC, for its Dutch abbreviation of ‘Nederlandse Reclame Code’). These initiatives lack effective enforcement mechanisms.[xii] Further research shows that self-regulation fails to achieve the desired effect and that comprehensive regulation is more likely to have a positive impact than a step-by-step approach.[xiii]

However, there exists a pertinent difference between tobacco control and dietary regulation, namely, tobacco is inherently bad for your health whereas food only has adverse effects on your health when it is high in fat, sugar or salt and does not meet nutritious quality standards.

Following the example of the FCTC, the Netherlands should adopt a mandatory regulatory framework for the marketing of unhealthy food products and beverages with adequate enforcement mechanisms, especially concerning marketing directed at children. Furthermore, the Netherlands should advocate for the progressive development of international human rights law through the adoption of a framework convention on dietary regulation. This convention is needed to effectively implement the right to health established in the ICESCR, as well as the CRC. I am aware of the fact that a rigid ban on the advertisement of unhealthy food products might appear as highly invasive for some. However, it must be emphasized that not so long ago, tobacco advertisement trough the sponsoring of sports teams and events was normal, while currently, the younger generation cannot imagine that this was once normal. Therefore, we have to take this progressive step now, for future generations to wonder how it was ever possible that Red Bull could sponsor a sports team.

[i] ‘Noncommunicable Diseases’ (World Health Organization, 13 April 2021) <https://www.who.int/news-room/fact-sheets/detail/noncommunicable-diseases> accessed 30 December 2021.

[ii] ‘Global Burden of Disease Compare | Viz Hub’ (Institute for Health Metrics and Evaluation, 2019)  <http://ihmeuw.org/5ayy> accessed 30 December 2021.

[iii] Frederick J Zimmerman and Sandhya V Shimoga, ‘The Effects of Food Advertising and Cognitive Load on Food Choices’ (2014) 14(1) BMC Public Health <https://doi.org/10.1186/1471-2458-14-342> accessed 30 December 2021, 8.

[iv] World Health Organization (WHO), ‘Set of Recommendations on the Marketing of Foods and Non-alcoholic Beverages to Children’ (2010) < http://apps.who.int/iris/bitstream/handle/10665/44416/9789241500210_eng.pdf?sequence=1> accessed 29 December 2021, 7.

[v] Lennart Bloemhof, ‘Max Verstappen achterhaalt Lewis Hamilton in laatste ronde en grijpt wereldtitel in Formule 1’ de Volkskrant (12 December 2021) < https://www.volkskrant.nl/sport/max-verstappen-achterhaalt-lewis-hamilton-in-laatste-ronde-en-grijpt-wereldtitel-in-formule-1~bfd3127a/> accessed 10 January 2022.

[vi] International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976), 993 UNTS 3 (ICESCR).

[vii] ibid art 12.

[viii] Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC) art 24(2)(c).

[ix] Amandine Garde et al., ‘A Child Rights-Based Approach to Food Marketing: A Guide for Policy Makers’ (UNICEF, April 2018) (https://sites.unicef.org/csr/files/A_Child_Rights-Based_Approach_to_Food_Marketing_Report.pdf) accessed 30 December 2021, 16-19.

[x] UNCRC ‘General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24)’ (17 April 2013) CRC/C/GC/15, para 47.

[xi] ‘Ratifictaion Status for Netherlands’ (UN Treaty Body Database) <https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=123&Lang=EN> accessed 30 December 2021.

[xii] Emma Calvert, ‘Food Marketing to Children Needs Rules with Teeth: A snapshot report about how self-regulation fails to prevent unhealthy foods to be marketed to children’ (The European Consumer Organisation, September 2021) < https://www.beuc.eu/publications/beuc-x-2021-084_food_marketing_to_children_needs_rules_with_teeth.pdf> accessed 30 December 2021.

[xiii] S Galbraith-Emami and T Lobstein, ‘The Impact of Initiatives to Limit the Advertising of Food and Beverage Products to Children: A Systematic Review’ (2013) 14(12) Obesity Reviews; WHO, ‘Set of Recommendations’ (n5) 9.

[xiv] Framework Convention on Tobacco Control (adopted 21 May 2003, entered into force 27 February 2005) 2302 UNTS 166 (FCTC).

[xv] Formula Money and Vital Strategies and Stopping Tobacco Organizations and Products, ‘Driving Addiction: F1 and Tobacco Advertising’ (2020) <https://exposetobacco.org/wp-content/uploads/Tobacco-Sponsorship-in-Formula-One.pdf> accessed 30 December 2021.