'Junk food' regulations given a timeout
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The Department of Health has announced that its controversial regulations aimed at protecting children from unhealthy food choices will not be implemented until at least 2011. Fortunately, these government regulations are not the only limitations placed on advertisers of so-called “junk food”, whose target market is too young to make informed dietary choices. This article takes a look at the current position. Background It has been widely reported that childhood obesity statistics in South Africa are on the rise. Experts have repeatedly warned that children’s diets are currently too high in refined sugars, saturated fats and salts. These, together with a lack of healthy foods such as fruit, vegetables and whole grains, and a more sedentary modern lifestyle, lead to illness and disease. The thorny issue of what role advertising to children plays in exacerbating this problem has in recent years received much public attention worldwide. Pressure from the public and consumer bodies has led to many countries implementing regulations which restrict which foods and beverages may be advertised to children and the methods of advertising and promotion that may be used. South African surveys have revealed that up to 17% of South African children between the ages of one and nine, who live in urban areas, are overweight. Until recently, however, there has been no specific restriction or limitation in South Africa on the type of product or service that may be advertised to children (with the exception of alcohol and tobacco) or the type of advertising that may be employed. In the past few years, the childhood obesity issue has caught the attention of both the government and the private sector. The food industry has been flooded with complaints that products advertised during children’s television viewing times comprise of mainly unhealthy, sugar-loaded and processed foods, presented in ways attractive to children; complainants argue that this is aggravating the childhood problem. Government regulations The government stepped into the fray by publishing proposed regulations to the Foodstuffs, Cosmetics & Disinfectants Act for public comment in 2007. These regulations included, inter alia, a prohibition on advertising “junk food” to children younger than 16. The draft regulations caused much heated debate in view of the many severe restrictions that they contained and their potential far-reaching effects. The regulations envisaged that certain foods, categorised as “non-essential to a healthy lifestyle”, would be prohibited from being advertised or promoted to children in any manner whatsoever. These included carbonated drinks, confectionary, potato crisps and fast foods of certain specifications. They also envisaged that no cartoon-type characters, puppets, animation, tokens or gifts may be used in the advertisement or promotion of any foodstuff to any child younger than 16 years of age. Identified foodstuffs would also have to carry labels that warn consumers to use the produce in moderation and that excessive consumption on a regular basis may lead to poor health. The draft regulations also proposed a total prohibition on the words “health” and “healthy”, “wholesome” and “nutritious” being used anywhere on a product. In response to the increased public debate, many food and beverage companies took the initiative and introduced their own responsible marketing practices. Kellogg’s, for example, introduced guidelines in June 2007 which stipulate what and how it markets to children. It will not advertise at all to children younger than six and will only advertise products that meet certain nutrient criteria to children under 12. The Department of Health has, however, decided to put the implementation of its proposed regulations on hold. According to a recent article appearing in the Business Day (Kahn, T; 'Junk-food' warnings rule on hold; Business Day; 2010/03/10), the controversial guidelines relating to the advertising of foodstuffs to children will only be implemented after the World Health Organisation meeting in May 2011. The Department of Health has also decided to do more work on the provisions dealing with health claims on foodstuffs and so-called “nutrient profile models”. What the effect of the re-working of these regulations will be remains to be seen. ASA Food & Beverage Code In the meantime, however, the food industry certainly does not have total freedom regarding the manner in which it advertises to children. The Advertising Standards Authority, a self-regulatory body established and comprised of marketing and advertising industry bodies and media owners, introduced its own regulations to address this much talked-of issue last year. In terms of the new ASA regulations which, unlike the regulations to the Foodstuffs, Cosmetics and Disinfectants Act, are already in force, food and beverage advertising that encourages poor nutritional habits or an unhealthy lifestyle in children and makes allowances for or encourages excessive consumption, for example through the featuring of excessive portion sizes, will not be condoned. The code recognizes that children are impressionable and therefore susceptible to manipulation by irresponsible food and beverage advertising. Food and beverage product advertising should therefore not directly appeal to children of 12 and under, to persuade their parents or others to buy the advertised products for them, or suggest any negative consequences of not purchasing the products. Products which are not considered “healthy dietary choices” may not be advertised on television with the use of celebrities or characters licensed from third parties (such as animated characters). While Mickey Mouse and Spongebob Squarepants may have been banned from appearing in junk food commercials on television, they may still appear on the packaging of these products. This reflects the fairly balanced approach of the ASA, which has also stipulated that an advertiser’s own characters (for example, the “Oros Man” and “Snap, Crackle and Pop”) and a degree of fantasy, including animation, will be allowed in advertisements aimed at children. However, nutritional and health benefit claims, as well as any disclaimers, must be conveyed in a manner easily understood by children. Likewise, food and beverage products that do not represent healthy dietary choices and a healthy lifestyle may not use promotional activity in television advertisements targeted at children of 12 and under. They may also not be advertised on or in close proximity to preschool and primary school premises. The ASA’s balanced approach to the issue of food advertising to children can be seen from its decisions on this issue. Although not decided in terms of the Food & Beverage Code, in the recent matter of Maggi Noodles / J Lawrence / 13989, the ASA was faced with a complaint against the description of Maggi 2-Minute Noodles as follows: “Kids are always hungry after school. Here’s something quick and wholesome to keep them going till dinner”. A consumer laid a complaint with the ASA. The question in issue was whether the description of Maggi 2-Minute Noodles as “wholesome” was misleading, the argument being that noodles are not a healthy food choice and in no way promote good health. The ASA requested an opinion on the matter from the Association of Dietics South Africa (ADSA). The ADSA reviewed the issue and responded that the product in question was, in fact, fibre rich and had a low sodium level. Therefore, it did not have an issue with the use of the word “wholesome” in relation to the product. Although it was possibly not the healthiest meal available to children, this is not what was being claimed. The ASA dismissed the complaint on the basis that the use of the word “wholesome” did not imply to the hypothetical reasonable person that Maggi 2-Minute Noodles is a healthy meal but rather that it is convenient and “good for consumption”. It was submitted that, once the government regulations come into force, and assuming that the fundamental principles of the regulations are unchanged, the outcome of complaints such as this might be quite different. These regulations to the ASA Code, introduced even prior to the proposed legislation, indicate a commitment from the advertising industry, and food and beverage marketers, to responsible advertising to children. Once the proposed legislation is in force, the protection of children against irresponsible advertising will be heightened further. Although it is not entirely clear, at this stage, precisely what the final regulations will contain, advertisers would do well to take the draft regulations into account when planning future marketing campaigns or packaging changes. With children being exposed to healthier food options, these provisions will hopefully make a positive contribution towards trimming down South Africa’s ever-increasing childhood obesity statistics. |
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| 9/03/2012 | ||
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The firm practises directly in several Southern African countries and through long-established associates in others.
