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Part IV - HFSS Food Advertising Regulation in the Netherlands

Date:24 November 2020

Regulatory Efforts in European States

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

As I have indicated in my previous columns, the Dutch lack of regulation of HFSS food advertising, which does not conform to the implementation of IHRL, can be traced back to European trends. It is therefore interesting to have a look at how other European States have regulated advertising in light of the inconsistency between international legal standards and European trends. This column discusses a (non-exhaustive) selection of States in the European region and their approach to regulating online HFSS food advertising. The main focus lies on the type of scheme employed by different States. The emphasis is not so much on the contents of the provisions, because such a discussion would extend beyond this short column.  Rather, this column presents a broad overview of measures adopt by States in the European region.

Some States have adopted binding, statutory regulation. For example, recently, in March 2019, the Portuguese Parliament adopted a bill banning HFSS food advertising targeting children below the age of 16. This effort is especially outstanding considering the fact that the ban also covers advertising on the Internet. Furthermore, HFSS food advertisements may not be broadcasted on television 30 minutes before and after programmes of which at least 25% of the audience constitutes individuals below the age of 16.[1]

Furthermore, in the larger European region Turkey has also adopted statutory regulation. As of as early as 2011, it has regulated food advertising through broadcasting mediums in the By-Law on the Procedures and Principles of Media Services. Article 9 paragraph 7 stipulates the rules on commercial communications of HFSS food advertising:[2] HFSS food advertising ‘shall not accompany the children’s programmes at the beginning/end or shall not be included in the children’s programmes’,[3] and if they are broadcasted in programmes other than children’s programmes, they shall be accompanied with a clearly visible warning ‘promoting a regular and balanced diet’.[4] The latter part is exceptional due to its reference to advertising targeted at adults, which is often neglected (both in the academic literature, as well as in publications of health authorities).

The aforementioned examples both show a health-based approach to HFSS food advertising restrictions, and are not phrased in terms of commercial expression. However, a more commercial approach to statutory advertising restrictions is traceable in Norway and Sweden. These States have historically limited commercials targeting children across the board since the 90s of the previous century.[5] These efforts are mainly aimed at protecting children from commercialization, and as such protect their health as a side effect.[6]

Furthermore, recently there have been some expressions of willingness within certain States to also adopt statutory regulation of HFSS food advertising. For example, in the UK, which up until now adheres to a self-regulatory scheme, the government has made a call for a statutory overall ban on HFSS food advertising. Currently, the proposal is in the consultation stage for banning HFSS food advertising before 9 pm, and further plans to ban HFSS food advertising online have been brought up as well.[7] It has been argued in the media that this regulatory move was fuelled by Prime Minister Johnson’s infection and subsequent suffering from Covid-19.[8] Furthermore, in Germany, which also still makes use of a self-regulatory framework, Kirsten Kappert-Gonther, a member of the Bundestag for the Green Party, has made a call for an overall ban on the advertising of sweets.

However, there are numerous States within the European region that have adopted self-regulation, emphasizing the voluntary commitments of the industry. Just to name a few: Denmark, Austria and Switzerland still make use of voluntary codes. In the Danish example, HFSS food advertising regulation is arranged by the Forum of Responsible Food Marketing Communication, which consists of actors active within the marketing chain (i.e. from manufacturers to advertisers).[9] In Austria, a self-regulatory code (the HFSS-Code) restricts HFSS food advertising to children.[10] Moreover, at the federal level in Switzerland, there are some voluntary initiatives aiming to protect children from HFSS food advertising.[11] For example, the Swiss Pledge, which among its members includes McDonalds, Coca Cola and Danone, prohibits advertising targeting individuals below the age of 12.

From the above analysis it becomes evident that European States have adopted a wide range of measures regulating HFSS food advertising. By comparing the States that have adopted statutory regulation, it becomes clear that such regulation is not only adopted based on health-grounds, but also for commercial purposes. This means that HFSS food advertising does not necessarily have to be based on the obligations of States regarding the rights to health and food. Nevertheless, it can be argued that such a health-based approach offers the most effective implementation of policies aiming to prevent obesity. This will be addressed in my next, and final, column in this series, in which I will give recommendations on how to improve the regulatory climate.

[1] ‘Portuguese Parliament adopts law banning ‘HFSS’ food advertising to children under 16’ (25 March 2019, European Advertising Standards Alliance) <https://www.easa-alliance.org/news/easa/news-easas-members-march-2019> accessed 17 November 2020.

[2] This provision dates back to its amendment in 2014.

[3] Article 9 paragraph 7 sub a, By-Law on the Procedures and Principles of Media Services.

[4] Article 9 paragraph 7 sub b, By-Law on the Procedures and Principles of Media Services.

[5] 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) 13; Katharina Ó Cathaoir, ‘Food Marketing to Children in Sweden and Denmark: a Missed Opportunity for Nordic Leadership’ (2017) 8 EJRR 283, 283.

[6] See, for example, on Sweden Ó Cathaoir (n 5) 283.

[7] Mark Sweney, ‘UK to ban all online junk food advertising to tackle obesity’ (The Guardian, 10 November 2020) < https://www.theguardian.com/media/2020/nov/10/uk-to-ban-all-online-junk-food-advertising-to-tackle-obesity> accessed 19 November 2020.

[8] See, for example, ‘Adverts for sausage rolls, Marmite and ketchup will be BANNED from daytime TV ads’ under government’s obesity crackdown’ (Daily Mail, 17 August 2020) < https://www.dailymail.co.uk/news/article-8634707/Adverts-sausage-rolls-fish-fingers-ketchup-BANNED-daytime-TV-ads.html> accessed 18 November 2020; ‘After Brexit, British Eaters Buried in Red Tape’ (Reason, 8 August 2010) < https://reason.com/2020/08/08/after-brexit-british-eaters-buried-in-red-tape-bans/> accessed 18 November 2020.

[9] ‘Communicating responsible about food marketing to children in Denmark’ (Food Drink Europe) <https://www.eatandlivewell.eu/responsible-marketing-and-advertising/danish-forum-of-responsible-food-marketing-communication/> accessed 19 November 2020. For a more detailed description of the Danish framework, see Ó Cathaoir (n 5) 287-288.

[10] Advertising & Marketing to Children Global Report (DLA Piper, November 2016) 108.

[11] Ibid, 315.