A legal analysis of advertising of unhealthy foods to children: a case for regulatory reform?

Abstract

BackgroundGrowing calls for restrictions on marketing of unhealthy food and drink to children over recent years have culminated in the development of a set of global recommendations by WHO to limit the power of food advertising and reduce children's overall exposure to promotion of unhealthy food and drink. There is also increasing criticism from health advocates in the UK and elsewhere on the effectiveness of existing regulation and the continued reliance on self-regulation of advertising over state-led regulation. We aimed to map the legal framework of regulation of food advertising to children in the European Union (EU) and UK and examine it for gaps in coverage of foods, ages, channels, and techniques; and to assess strengths and weaknesses of the regulatory regimen by principles of better regulation and aspects of regulatory theory, to develop implications for reform. MethodsRelevant law and regulation was identified by legal research techniques. Analysis of the framework included close textual consideration of legislation and other regulations. Published work and reports were searched for commentary on the effectiveness of the regulation. Broader assessment of the regulatory regimen was by analysis for compliance with principles of better regulation and aspects of regulatory theory. FindingsThe EU framework of regulation sets some minimum standards for the protection of children from unhealthy marketing, including limits on false health claims, misleading statements, and direct encouragement of children to buy food or pester others to do so. However, the EU's approach is potentially weakened by the exemption from regulation of exaggerated statements, the failure to allow member states to develop stronger regulation for food labelling, and the encouragement of voluntary self-regulation over state-led action in broadcast media. The UK has adopted some strong restrictions of unhealthy (high in fat, salt, or sugar) food and drink marketing in broadcast media but has not adopted a strategic approach to reduce unhealthy marketing to children more widely. The UK Government has endorsed the development of ambiguous and uncertain codes, with interpretation—even of health consequences—left to the self-regulatory agency. This factor has led to a complex and incoherent system. Moreover, many forms of advertising and marketing are left uncovered by industry-led self-regulation, creating gaps that ignore the nature of modern integrated marketing. UK regulation does not meet the UK Government's own standards of good regulation and the central players, UK Government sanctioned co-regulatory and self-regulatory industries, are also missing key qualities that may be necessary to secure legitimacy in the eyes of both public health advocates and the public. InterpretationGaps and inconsistencies in the regulatory framework suggest that there is a clear case for reform of existing industry-led regulation of advertising to children. However, much study of regulation suggests that there is no binary distinction between state-led regulation and self-regulation. Instead, there are a range of positions between the two. The state is able to influence self-regulators by indirect means; for example, the oversight of industry codes by other regulators or the development of competing regulatory bodies. Advocacy that highlights the flaws in self-regulation is justified. However, theoretical approaches, such as systems-theoretical views of regulation suggest that an indirect approach might be more likely to succeed than attempts to end self-regulation, and more desirable than piecemeal adjustments that are likely to only displace, rather than reduce, unhealthy advertising to children. FundingNone.