Part I – HFSS Food Advertising Regulation in the Netherlands
|Date:||12 October 2020|
Do States have obligations to regulate unhealthy food advertising under IHRL?
By Dominique Mollet, University of Groningen, firstname.lastname@example.org
Whenever we open our Facebook-, or Instagram-app or turn on the TV, we are often targeted by advertising efforts promoting the consumption of products detrimental to our health, such as ‘unhealthy’ food (food high in saturated fat, trans fatty acids, salt and sugar, HFSS food). Some States have regulated such advertising to some extent, while others mainly leave it unregulated. But do States actually have obligations under international human rights law to regulate this?
Several human rights treaties, including the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC), provide the right to health and the right to food. As the right to (adequate) food is considered an underlying determinant of health, the aforementioned rights are inherently intertwined and connected. Initially, the content of these rights was more tailored towards food security (i.e. combatting hunger). However, the Committee on Economic, Social and Cultural Rights (CESCR) has clarified that contemporary obstacles, such as the global obesity epidemic, to the realization of the right to health need to be taken into account as well. Similarly, the interpretations presented in General Comments of the CESCR and the Committee on the Rights of the Child indicate that the rights to health and food also include a right to adequate nutrition.
In this regard, the CESCR has emphasized the importance of ‘the prevailing situation in the countries concerned’ and the existing obstacles to the full realization of the right to adequate food. Therefore, in States with a high obesity- and overweight-rate, the aforementioned rights encompass a right to adequate nutrition, and the State obligations arising from said rights should be tailored accordingly. Such an interpretation should apply in, for instance, the Netherlands, where more than 50% of all adults suffer from overweight and 15% are obese.
Human rights law imposes obligations on States to respect, fulfil and protect. The latter two are relevant in assessing whether the right to adequate nutrition also brings about State obligations to regulate HFSS food advertising. Under the obligation to fulfil, States have to take positive action in order to enhance the enjoyment of the rights concerned. This can be interpreted as an obligation to support individuals in making healthier choices, for instance, through raising awareness of the health detriments of excessive HFSS food consumption and preventing the creation of an “obesogenic” environment. This could be carried out, for example, by requiring health warnings attached to HFSS food advertisements.
Furthermore, the obligation to protect holds that States must protect individuals from interferences with their rights by third parties and the broader food environment. This can be interpreted to impose upon States an obligation to protect individuals from the marketing efforts carried out by the HFSS food industry, which may indirectly be detrimental to the enjoyment of their right to adequate nutrition.
Several Special Rapporteurs on the rights to health and food and the Committee on the Rights of the Child have submitted far-reaching interpretations on the role of States in restricting HFSS food advertising. The Committee on the Rights of the Child has emphasized that obesity in children is a health concern and is directly connected to their exposure to fast food. This illustrates that under the obligation to protect, States in which obesity is a health concern should protect individuals from the influences of third parties, (i.e. the marketing influences of the HFSS food industry) and of the broader environment (i.e. an obesogenic environment created by HFSS food advertising) on the enjoyment of their right to health and food. Similarly, former Special Rapporteur Anand Grover has stated that in order to fulfil their obligations under the right to health, ‘States should put in place national policies to regulate advertising of unhealthy foods’.
To conclude, under certain circumstances States have an obligation under international human rights law to restrict HFSS food advertising. But how should this be performed? Several bodies and institutions concerned with public health and human rights provide States with substantive and procedural guidance. This includes, among other things, strong discouragement of the use of self-regulatory schemes: the industry, protecting its own economic interests, should not be the (only) actor regulatingHFSS food advertising behaviour. This is particularly the case when it comes to advertising targeted at children. The fundamental value of the ‘best interest of the child’, enshrined in Article 3 of the CRC holds that, among other things, the best interest of the child must be taken into account in the interpretation and implementation of rights. This could mean that in balancing children’s rights with economic interests, the economic interest should not outweigh children’s interests. This should clearly be guaranteed by the State, rather than by the industry itself.
The question remains, however, whether and how States act upon these obligations and guidelines. To illustrate this, a case study on the Netherlands’ compliance will be presented in the next column post.
 Article 12 ICESCR provides for ‘the right (…) to the enjoyment of the highest attainable standard of physical and mental health’, Article 11(1) provides for ‘the right (…) to an adequate standard of living (…), including adequate food (…)’, International Covenant on Economic, Social and Cultural Rights (adopted 19 December 1966, entered into force 3 January 1976) 993 UNTS 3 [ICESCR], Arts. 11(1) and 12. The CRC categorizes the right to food under the right to health, as Article 24(1) CRC recognizes ‘(…) the right of the child to the enjoyment of the highest attainable standard of health (…)’ and Article 24(2)(c) addresses ‘(…) the provision of adequate nutritious foods (…)’, Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3, Arts. 24(1) and 24(2)(c).
 See, for example, CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12) (Committee on Economic, Social and Cultural Rights, 11 August 2000) UN Doc E/C.12/2000/4 [CESCR GC No. 14], paras. 3, 4, 43(b).
 Note, for example, the wording of Article 11(2) ICESCR: ‘The States Parties (…) recognizing the fundamental right of everyone to be free from hunger (…)’, ICESCR Art. 11(2).
 CESCR GC No. 14, para 10.
 See, for example, CESCR GC No. 12: The Right to Adequate Food (Art 11) (Committee on Economic, Social and Cultural Rights, 12 May 1999) UN Doc E/C.12/1999/5 [CESCR GC No. 12], para 6; CESCR GC No. 14, para 11.
 GC CESCR No. 12 para 2. The Committee on the Rights of the Child also confirms this: General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest attainable standard of health (art. 24) (Committee on the Rights of the Child, 17 April 2013) CRC/C/GC/15 [CteeRC GC No. 15], para 43.
 A Body Mass Index (BMI) of 25 and above is considered overweight, obesity is defined as a BMI of 30 and above. ‘Cijfers en feiten overgewicht’ (Rijksinstituut voor Volksgezondheid en Milieu) < https://www.loketgezondleven.nl/gezondheidsthema/overgewicht/cijfers-en-feiten-overgewicht> accessed 11 July 2020.
 See, for example, CESCR GC No. 14, para. 237.
 CteeRC GC No. 15, para. 47.
 Anand Grover Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Human Rights Council, 1 April 2014) A/HRC/26/3, para. 22.
 See, for instance, Set of Recommendations on the Marketing of Food and Non-Alcoholic Beverages to Children (World Health Organization 2010).
 Ibid, see Recommendation 6.
 In general, the guidance on regulating advertising targeted at children is further developed than the guidance on regulating advertising targeted at adults.
CRC, Art 3; General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art 3, para. 1) (Committee on the Rights of the Children, 29 May 2013) CRC/C/GC/14, para. 6(b).
 Katarina Ó Cathaoir, Mette Hartlev and Céline Brassart Olsen, ‘Global health law and obesity: towards a complementary approach of public health and human rights law’ in Gian Luca Burci and Brigit Toebes (eds) Research Handbook on Global Health Law (Edward Elgar Publishing 2018) 427, 447.