Part II – HFSS Food Advertising Regulation in the Netherlands
|Date:||26 October 2020|
By Dominique Mollet, University of Groningen, firstname.lastname@example.org
Case Study: the Netherlands
As indicated in my previous column, international human rights law imposes obligations for States to protect the rights of individuals. The interpretation of the rights to health and food provides arguments pressing States in which obesity and overweight widely prevail to regulate (digital) HFSS food advertising. This should also apply in the Netherlands, as 50 per cent of all adults are overweight and almost 15 per cent are obese. 
In the Netherlands, general matters concerning advertising are regulated in the Nederlandse Reclame Code (Dutch Advertising Code, NRC). This is a voluntary self-regulating instrument stipulating rules to which advertisers should adhere. It includes a general code and several ‘special’ codes, such as the Reclamecode Voor Voedingsmiddelen 2019 (Code for Food, RVV) and the Kinder-en Jeugdreclamecode (Children and Youth Code, KJC). The rules of the NRC are governed by the Stichting Reclame Code (SRC), a private party managed independently by, among other actors, associations of advertisers and societal and consumers’ organizations. The Reclame Code Commissie (Advertising Code Commission, RCC), which is not an administrative body, can hear complaints and prescribe recommendations if a violation is found.
The structure of the system regulating HFSS food advertising is problematic: there is a lack of government involvement and oversight. As I described in Part I of this series, it is widely recognized that self-regulatory schemes completely relying on private parties are inappropriate for the HFSS food advertising regulation. In the Netherlands, the government is generally not involved in the regulation of advertisements, but may take over by, for example, adopting statutory rules, as it has done in the field of tobacco control.  Nevertheless, for HFSS food advertising, no specific statutory action has been taken and, as such, the government has not yet exerted its influence on norm setting. Consequently, the regulation of HFSS food advertising, the protection of public interests, is largely executed by a private party.
The RCC, together with the College van Beroep (Board of Appeal, CvB), is responsible for the enforcement of the standards set out in the NRC. The RCC receives complaints, and can decide on whether the advertisement concerned constitutes a breach of the NRC. If an advertiser does not make the advertisement concerned compliant after a decision, it is listed as non-compliant on the website and in publications of the SRC. Similarly, a notification is sent to the Authoriteit Consument en Markt (the Dutch Competition Authority). In the WHO’s Set of Recommendations, it is emphasized that there should be no potential conflict of interests in the bodies monitoring compliance and evaluating advertising regulation. However, among the members of the RCC are also stakeholders of commercial interests, and as such there is great potential for a conflict of interests. Therefore, the Dutch regulation does not meet the procedural standards set under IHRL and the specialized guidelines: so far, the government has not sufficiently introduced an appropriate level of influence on regulation and there is a potential conflict of interests in the adjudication of the standards set out under the NRC.
Substantively, there are also numerous examples why the current scheme does not meet international standards. Just to name a few: food advertising receives limited attention, restrictions focus on unfair commercial practices, and social media has not been appropriately regulated. Furthermore, although the specific children’s code (KJC) and the food code (RVV) somewhat regulate food advertising targeted at children,  HFSS food advertising targeted at adults remains unaddressed. Although this is not emphasized in guidelines and the literature either, it can be derived from, among other sources, the authoritative interpretations of the CESCR discussed in my previous column that States should require the regulation of HFSS food advertising to adults. This is especially relevant if one compares the obesity- and overweight rates among Dutch children (respectively 2,1% and 13,2%) with the same rates among Dutch adults (respectively 15% and 50%).
The NRC does not regulate advertising in conformity with these statistics. For example, Article 4 of the general code states that advertisement may not unnecessarily harm individuals or contain threats to mental and/or physical public health. This provision, so far, has not been interpreted as to afford protection from obesogenic advertising. Rather, the RCC and CvB have interpreted ‘physical public health’ to refer to commercial statements discommending vaccinations or recommending homeopathic medication over prescribed medication. In complaints related to diets, the RCC and CvB either did not take into account the health-aspect and assessed the complaints based on other grounds, or ruled that Article 4 was inapplicable on the public health ground. Consequently, it can be concluded that this provision has not been interpreted to protect individuals from HFSS food advertising.
Although not all relevant points can be discussed here, one last point deserves attention. The Dutch obesity prevention strategy in itself falls short of HFSS food advertising restrictions: digital HFSS food advertising regulation is excluded from the larger Dutch NCD-prevention plan, the Nationaal Preventieakkoord (National Prevention Accord). In the past, the Netherlands has taken policy action by providing information to consumers, for instance through public campaigns promoting healthy diets. The fact, however, that such an important aspect of obesity prevention strategies is neglected in the national plan, despite the existence of clear international standards, emphasizes the importance of the proper implementation of guidelines and following a human rights-based approach to obesity prevention. This shortcoming in the Dutch policy can explain the lack of implementation of international standards: the regulation of (digital) HFSS food advertising as a part of the obesity prevention strategy is non-existent. In the next column I will look for possible explanations as to why the Netherlands has chosen for this scheme.
 Overweight is defined as a Body Mass Index (BMI) of 25 and above, obesity is defined as a BMI of 30 and above.‘Overgewicht > Cijfers en Context > Huidige Situatie’ (Rijksinstituut voor Volksgezondheid en Milieu) <https://www.volksgezondheidenzorg.info/onderwerp/overgewicht/cijfers-context/huidige-situatie#node- overgewicht-volwassenen-naar-leeftijd-en-geslacht> accessed 11 July 2020.
 Organisatie (Stichting Reclame Code) < https://www.reclamecode.nl/over-src/organisatie/> accessed 4 July 2020; De Nederlandse Reclame Code – Met Informatie over de Werkwijze van de Reclame Code Commissie en het College van Beroep (Editie 2019) (Stichting Reclame Code, 2019), 11.
 In this regard, the ‘Raad van State’ (Council of State) held that the SRC is not an administrative body (‘bestuursorgaan’), neither as defined in Article 1.1a and Article 1.1b of the Algemene Wet Bestuursrecht, ABRvS 26 March 2014, zaak 201300956/1/A3, 4.2; E. Venekatte, ‘Open normen in de reclame’ 49.
 Tabaks- en rookwarenwet.
 Set of Recommendations on the Marketing of Food and Non-Alcoholic Beverages to Children (World Health Organization 2010), para 27. Note that the WHO Recommendations only address advertising to children.
 Art 8 RVV generally prohibits food advertisements to children below the age of 12, but provides for a number of exceptions. An example of this is that food advertisement is only permitted to target children between the ages of 7 to 12 if they comply with certain nutritional criteria.
 Overgewicht > Cijfers en Context > Huidige Situatie’ (Rijksinstituut voor Volksgezondheid en Milieu) < https://www.volksgezondheidenzorg.info/onderwerp/overgewicht/cijfers-context/huidige-situatie#node- overgewicht-kinderen> accessed 11 July 2020; ‘Overgewicht > Cijfers en Context > Huidige Situatie’ (Rijksinstituut voor Volksgezondheid en Milieu) <https://www.volksgezondheidenzorg.info/onderwerp/overgewicht/cijfers-context/huidige-situatie#node- overgewicht-volwassenen-naar-leeftijd-en-geslacht> accessed 11 July 2020.
 ‘Nederlandse Reclame Code’ (Stichting Nederlandse Reclame Code) < https://www.reclamecode.nl/nrc/nederlandse-reclame-code/> accessed 12 July 2020, Art 4.
 See for example, 2020/00020 (Reclame Code Commissie, 30 January 2020) <https://www.reclamecode.nl/uitspraken/resultaten/huishouden-en-inrichting-2020-00020/264379/> accessed 25 October 2020; 2016/00693 (Reclame Code Commissie, 22 December 2016) <https://www.reclamecode.nl/uitspraken/resultaten/gezondheid-2016-00693/171344/> accessed 25 October 2020; 2016/00548 (Reclame Code Commissie, 28 July 2016) <https://www.reclamecode.nl/uitspraken/resultaten/gezondheid-2016-00548/167435/> accessed 25 October 2020.
 See for example, 2019/00479 – CVB (College van Beroep, 29 October 2019) <https://www.reclamecode.nl/uitspraken/resultaten/voeding-en-drank-2019-00479-cvb/252338/> accessed 25 October 2020; 2017/00408 CvB (College van Beroep, 12 October 2017) <https://www.reclamecode.nl/uitspraken/resultaten/voeding-en-drank-2017-00408-cvb/192795/> accessed 25 October 2020; 2014/00422 (Reclame Code Commissie, 1 September 2014) <https://www.reclamecode.nl/uitspraken/resultaten/voeding-en-niet-alcoholhoudende-dranken-2014-00422/139102/> accessed 25 October 2020.
 Examples include Het Nieuwe Eten (New-Style Eating) in 2008 and Maak je niet dik (Do not get fat) in 2002 on mass media and social media. ‘Search’ (World Cancer Research Fund International) <https://policydatabase.wcrf.org/nourishing-moving-search> accessed 8 July 2020.