Tài liệu Protecting children from unhealthy food marketing docx

A survey by the National Children's Bureau foundthat children recognise the need to improve thebalance of healthy and unhealthy food and drink,and support restrictions on how unhealthy f

A British Heart Foundation and Children's Food Campaign proposal for a statutory system to regulate

non-broadcast food marketing to children

Protecting children from unhealthy food marketing

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Chhiillddrreenn’’ss FFoooodd Cwww.childrensfoodcampaign.org.ukCaam mppaaiiggnn

Dr Mike Rayner from Sustain and Jane Landon ofthe National Heart Forum who formed a steeringgroup to oversee the writing of the report.

An expert seminar was held in July 2007 todiscuss the current state of non-broadcast foodadvertising to children The seminar was

attended by: Isla Arendell, National Federation ofWomen's Institutes; Emma Boyland, LiverpoolUniversity; Jo Butcher, National Children's

Bureau; Alex Callaghan, BHF; Gill Cowburn, BHFHealth Promotion Research Group, OxfordUniversity; Kath Dalmeny, Sustain; Sue Davies,Which?; Professor Gerard Hastings, Institute forSocial Marketing, University of Stirling; JaneLandon, National Heart Forum; Dr Tim Lobstein,International Obesity Task Force; Kirsty

Schneeberger, Sustain; Professor Boyd

Swinburn, Deakin University; and Richard Watts,Coordinator, Children's Food Campaign Theconclusions of this report have been shared withthose who attended the seminar

Particular thanks are due to a number of internswho worked on the report: Alex Hale, LiannaHulbert, Shaira Kadir, Kirsty Schneeberger andHarriet Smith The report has only been possiblewith their help

Any mistakes in this report are, however, the soleresponsibility of the author

Childhood obesity is one of the nation's most pressing public health issues If current trends continue, best estimates

suggest up to half of boys and almost a third of girls will be

obese by 2050 Obese children are highly likely to become

obese adults and the potential rise in cases of heart disease, type 2 diabetes and diet-related cancers would create a

massive cost to the NHS, as well as huge suffering for those involved.

Further action simply must be taken Given the link between the marketing of unhealthy foods to children and poor diets

amongst our nation's young, there is the strongest possible case for further action to regulate marketing of unhealthy

foods to children

This goes well beyond television advertisements Health

groups have long called for a statutory system to regulate

marketing of junk food to children on promotional websites,

text messages, in-store placements, cinema adverts and

posters - but until now, no one has set out what these

arrangements might look like

I commend this report as the first serious attempt to design a truly comprehensive statutory system of regulation for non-

broadcast food marketing I very much hope that the debate

it will undoubtedly stimulate will lead to action on how to

control unhealthy food marketing aimed at children.

Peter Hollins

Chief Executive

British Heart Foundation

1 Introduction 1

2 Diet-related diseases and unhealthy food marketing 5

2.1 Prevalence of diet-related ill health in the UK, including childhood obesity 5

2.2 The role of food promotion in making food choices 6

2.3 Regulation of unhealthy food advertising in broadcast media 7

2.4 Lack of regulation of unhealthy food marketing in non-broadcast media 8

2.5 Conclusions 9

3 Non-broadcast unhealthy food marketing - what the existing regulation does and does not say 11 3.1 What regulations are currently in place - the CAP Code and others 11

3.2 What the current regulations do not cover 14

3.2.1 Product-based 14

3.2.2 Promotional 15

3.2.3 Placement 20

3.3 Criticisms of the current codes 21

3.3.1 The language used 21

3.3.2 Definition of 'children' and 'unhealthy food' 22

3.3.3 Enforcement 24

3.4 Conclusions 25

4 Models of good practice 27

4.1 Tobacco control in the UK 27

4.2 Examples of unhealthy food marketing controls from other countries 29

4.2.1 Quebec, Canada 29

4.2.2 Sweden 31

4.3 Conclusions 33

IV

Contents

5 How to protect children from non-broadcast marketing of unhealthy food 35

5.1 What the rules should be 35

5.1.1 General principles 35

5.1.2 Defining 'unhealthy food' 36

5.1.3 Defining 'targeted at children' 37

5.1.4 Marketing in store 42

5.1.5 Regulating websites 43

5.1.6 Brand advertising 43

5.2 Legislation and enforcement 44

5.2.1 The role of the ASA 44

5.2.2 Proposed role of Trading Standards Offices (TSOs) 45

5.3 Conclusions 47

6 Conclusion 49

Appendices 1 The revised CAP Code 52

2 ICC International Code of Advertising Practice 54

3 Draft enforcement sheet for TSOs 60

Summary

Public interest groups have long made the

case that our current system of regulating

non-broadcast (i.e not on television or radio)

marketing of unhealthy food to children is not

adequate This report is the first attempt in the

UK to design a statutory system of regulation

for non-broadcast food marketing that protects

and promotes children's health.

Children's dietary health, in particular childhood

obesity, is widely recognised as one of our most

pressing public health problems The recent

Foresight report on obesity makes grave

predictions for the future state of the nation's

health unless we act now Without action, 55% of

boys, and 70% of girls, could be overweight or

obese by 2050 and obesity will cost the country

£45 billion a year

Food advertising and marketing, which is almost

always for unhealthy products, plays an important

role in encouraging unhealthy eating habits in

children These habits are likely to continue into

adulthood It has been proven that advertisements

affect food choices at both brand and category

level i.e a McDonald's burger advert is likely not

only to make a person more likely to buy a

branded McDonald's burger over another brand,

but also more likely to buy a burger per se

Recent efforts have been made to restrict

television advertising of unhealthy food to children

These regulations acknowledge the particular

susceptibility of children to the influences of

advertising However, there are currently no legal

limitations on non-broadcast marketing aimed at

children This category includes marketing

through sponsorship, packaging, text messagingand the internet This is a growing form ofadvertising aimed at children and its omission fromstatutory regulation damages the effectiveness ofthe system

Since there is no evidence to suggest that broadcast advertising marketing which targetschildren is any less effective than broadcast, it isinconsistent to regulate advertising of unhealthyfoods on television while ignoring non-broadcastmarketing aimed at children Regulationsgoverning broadcast and non-broadcastadvertising of unhealthy food to children must bebrought into line with each other Both must reflectthe need to protect children from undue pressure

non-to choose unhealthy food over healthy food.Non-broadcast food marketing is currently subjectonly to voluntary codes developed and enforced byadvertisers These include the Committee ofAdvertising Practice (CAP) code There areseveral criticisms of this self-regulatory regime:

It is primarily designed to ensure advertising is

"legal, decent, honest and truthful" and not toprotect and promote health

The rules mostly cover only advertising in atraditional, narrow sense and ignore the widerrange of techniques used to promote a product.The wording is vague and inconsistent

Enforcement is weak and retrospective andthere is little incentive to comply

This report analyses legislation in Quebec andSweden that stops the television advertising of allfood to younger children It suggests that anumber of legal devices used in their legislation

could be helpful in the UK, especially the Quebec

grid that decides which advertisements should be

controlled The report also considers if there are

useful legal precedents in UK legislation to control

tobacco marketing The definition of 'advertising'

used in this legislation covers anything with the

purpose or effect of promoting a tobacco product,

which is helpful in covering the range of marketing

techniques outlined in this report

This report therefore proposes a regulatory system

based on the principle that individuals and

organisations must not act in a way where the

purpose or effect is to promote an unhealthy food

product to individuals under the age of 16 This

should be a statutory system enshrined in law, not

a voluntary industry code The proposed law

prohibits all marketing whose purpose or effect is

to promote unhealthy food to children This covers

not only traditional advertising methods but

anything that acts as advertising, such as

promotional websites, text messages, in-store

placements and so on

The proposal would only apply to foods that are

classed as 'less healthy' by the Food Standards

Agency's nutrient profiling model Less healthy

food promotions would then be assessed as to

whether they target children Promotions would be

assessed as low, medium or high for two criteria

The first is the extent to which the product targets

children The second is the extent to which the

mechanism used to promote the product targets

children Any promotion for an unhealthy food

product that is either highly targeted at children, or

a promotion which is medium highly targeted at

children would be restricted Promotions assessed

as medium for both product and mechanismcriteria would also be restricted This would meanthat no unhealthy food product specifically aimed

at children could be promoted The report sets outdefinitions for the assessment of each criteria

Finally, the proposal recommends that the system

is enforced by Trading Standards Officers with thesupport of the Food Standards Agency We do notbelieve that an industry body, such as the

Advertising Standards Authority (ASA), shouldhave a role in its implementation

Adopting this system, we believe, would have asignificant impact on protecting and improving thehealth of children in the UK

Dietary health and wellbeing have never had a

higher profile in the UK The groundbreaking

Foresight report1on obesity in mid-October 2007

predicts that, if present trends continue, 55% of all

boys and 70% of girls could be overweight or

obese by 2050 This report was closely followed

by a comprehensive World Cancer Research

Foundation report2which showed strong links

between diet, obesity and some cancers At the

same time, a highly public and passionate debate

has raged between public interest groups and the

food industry about how best to protect children

from unhealthy food marketing

The focus of this debate has been on how to

protect children from television adverts for

unhealthy food But another strand of

campaigning by public interest groups has

received less attention This is the issue of

protecting children from other forms of marketing

unhealthy food apart from television - so called

'non-broadcast marketing'

This debate is now taking place in the wider

context of the risks posed to children by new

technologies such as video games and the

internet The Departments for Children, Schools

and Families and Culture, Media and Sport are

supporting an independent review, under the

stewardship of Dr Tanya Byron, of the risks

children face from exposure to potentially harmful

or inappropriate material from these media The

Byron Review is due to report to Ministers in

March 2008

A number of reports from Sustain,3Which?4and

the Food Commission5have highlighted how some

non-broadcast marketing for unhealthy foodstargets children In the age of multi-channeltelevision where no advert can expect to reachanything like the audience of even ten years ago,non-broadcast marketing has become an evenmore important way for food companies topersuade people to buy their products It ispossible that any moves to regulate the marketing

of unhealthy foods via non-broadcast means willmeet the same vehement opposition that the foodindustry accorded to the 9pm watershed

A survey by the National Children's Bureau foundthat children recognise the need to improve thebalance of healthy and unhealthy food and drink,and support restrictions on how unhealthy food ismarketed to them.6 A range of public interestgroups have also called for a statutory system toregulate non-broadcast marketing of unhealthyfood to children However, until now, no detailedalternative to the current arrangements has beenpublished

1 Tackling Obesities: Future Choices, Foresight (October 2007),

page 36

2 'Food, Nutrition, Physical Activity and the Prevention of Cancer:

a global perspective', World Cancer Research Fund (October 2007).

3 The Children's Food Bill: why we need a new law and not more

voluntary approaches, Charlie Powell and Jeanette Longfield

(Sustain: the alliance for better food and farming, 2005).

4 Child Catchers (January 2006), Food Fables (November 2006)

and Cartoon Heroes and Villains (August 2007) All published

by Which? www.which.co.uk

5 Marketing of Food to Children, The Food Commission (October

2005).

6 Children's views on non-broadcast food and drink advertising,

Report for the Office of the Children's Commission, National Children's Bureau, 2006

2

This report does just that It is a workable

alternative to our current system of voluntary

regulation for non-broadcast marketing of food

products to children We review the current UK

regulations and their shortcomings together with

relevant legislation from other jurisdictions, and for

the first time set out a comprehensive proposal for

how marketing of unhealthy food to children should

be defined and regulated

Chapter Two briefly sets out the context for this

report, including the problems of children's dietary

health, the evidence on marketing controls that are

used to promote health and what rules govern

broadcast advertising Chapter Three reviews the

current state of non-broadcast food marketing to

children and its regulation Chapter Four looks at

good practice from abroad in developing robust

marketing controls and also seeks to learn lessons

from the successful regulation of tobacco

marketing in the UK Chapter Five brings these

strands together to propose a new regulatory

system for non-broadcast food marketing to

children and concludes with proposals for action

The recommendations made in this report are both

proportionate and based on solid evidence

However, they mark a significant departure from

the status quo and will have extensive

ramifications for the food industry Because this

report is a first, we recognise that it will be

controversial However, we hope that the debate it

stimulates will lead to a consensus on how to

control unhealthy food marketing aimed at

children We would welcome stakeholder testing of

the model to establish if it is, as we believe it to be,

a practical way for children to be protected from

unhealthy food marketing We would also

welcome suggestions for changes which would

make the model both easier to implement and

more effective in protecting children's health

of Product, Price, Promotion and Placement.Unless otherwise stated, this report refers tomarketing techniques as a whole and not justadvertising However, we do not refer to theprice of products because this is a controversialsubject outside the remit of this report

Unhealthy food is defined as food that isclassed as 'less healthy' under the FoodStandards Agency's Nutrient Profiling Model.Please see section 5.1.2 for a further

4

Diet-related ill health, especially obesity, has

become one of the nation's most pressing

public health issues.

It is well-documented that childhood obesity is a

complex problem with a range of causes Society

will need to take a long-term and multi-faceted

approach if we are to tackle the problem

effectively Policies such as encouraging children

to exercise more, teaching all children to cook and

ensuring clear food labelling can all play a part in

improving children's health However, these

proposals have been set out elsewhere and it is

beyond the scope of this report to re-examine

them Instead, this section sets out the link

between poor health in childhood and the

promotion of unhealthy foods

In particular, we examine the role that advertising

plays in forming children's attitudes to food and

their food choices in contributing to poor diet The

principles which have informed the recent

introduction of restrictions on television advertising

of unhealthy food to children also inform our

analysis of non-broadcast advertising The

conclusion of this analysis is that sensible

regulation that governs the advertising of

unhealthy food to children can and should be used

to protect and promote children's health

2.1 Prevalence of diet-related ill health in the UK, including

childhood obesity

Diet and health are intrinsically interconnected

Heart disease, various types of cancer, dentalcaries, poor mental health and a wide range ofother illnesses have been linked to poor diet, i.e adiet high in fat, salt and sugar and low in fruit andvegetables Similarly, certain foods (or theirnutrients) have been associated with goodphysical and mental health and wellbeing

The most high-profile dietary health issue is thedramatic rise in childhood obesity The HealthSurvey for England has shown that over a 10 yearperiod, obesity in children aged 2 to15 nearlydoubled, from 11% to 19% in boys and from 12%

to 18% in girls.7 Between 1995 and 2004 theproportion of younger children aged 2 to 10classified as either overweight or obese rose to28%, while for older children it rose to 40%.8 Ifthese trends continue, estimates suggest that atleast one fifth of boys and one third of girls will beobese by 2020 The Foresight report on obesityconcluded that up to 55% of boys and 70% of girls

unhealthy food marketing

7 Health Survey for England 1995-2004 See www.ic.nhs.uk/

webfiles/publications/hsechildobesityupdate/

HealthSurveyForEngland210406_PDF.pdf

8 National Audit Office, Healthcare Commission & Audit

Commission (2006) Tackling Childhood Obesity - First Steps

(Norwich: The Stationery Office, available at:

www.healthcarecommission.org.uk/assetRoot/04/02/44/68/

04024468.pdf

could be overweight or obese by 2050 unless we

take effective action.9 10

The Foresight report makes clear that the obesity

problem has a multitude of causes, including both

poor diets and falling levels of physical activity At

its heart is the fact that most humans in rich

countries now tend to consume more energy then

they expend Crucially the report contends that

obesity is largely caused by social problems and is

therefore not mainly a matter of personal choice

For example, physical activity levels are lower

because of the way our society is now organised

-from the design of buildings encouraging the use

of lifts not stairs, to urban design favouring car

use By the same token, we consume more

high-energy and low-nutrient food because the

way it is produced, priced and marketed makes it

more attractive and accessible

Childhood obesity is linked to numerous health

problems, such as type 2 diabetes, and diseases

of the heart and circulation.11Being overweight

also increases the risk of high blood pressure (a

leading risk factor for stroke) and of high

cholesterol The oft-cited findings of the Bogalusa

Heart Survey showed that three quarters of obese

children remain obese as adults,12clearly

indicating that, in the majority of cases, the risk

factors and health consequences associated with

child obesity persist into adulthood

In short, poor diet in childhood contributes to a

range of health problems including childhood

obesity Childhood obesity itself is a risk factor in a

range of other serious health problems in

childhood, which can extend through to adulthood

What people eat as children and the early habits,

tastes and preferences that they develop are

therefore critical to the quality of the lives that they

to home with maternal diet through pregnancy andbreastfeeding As children grow and interact moreand more with their external environment, outsideinfluences increasingly come into play - familyhabits, media, culture, school and peer groups allaffect food choices.13This presents society with anumber of fronts on which it might act to try toensure as positive an influence as possible onchildren's food preferences Clearly, acting on all ofthem will have greater impact than acting on justone or two For present purposes this reportfocuses on the influence of food promotion through

a variety of media, as this is an area which,despite growing evidence and understanding of itsimpact on children, has not been effectivelytackled

The effect of marketing on product choice has longbeen established However, the impact of

television food adverts on food preferences hasalso been demonstrated, as has an associationbetween the proportion of overweight children andthe number of food advertisements shown eachhour during children's television.14 The seminalHastings Review15found that food promotionaffects preferences not only at brand level (e.g.persuading people to choose one burgerrestaurant over another) but also, moreimportantly, at category level (e.g persuadingpeople to eat more burgers instead of fruit) As thefood categories most heavily promoted to children

in the UK tend to be unhealthy, the effect on theirfood choices contributes to an unhealthy diet

6

There is also evidence that advertising may affect

children differently than it does adults A number of

studies16have shown that younger children are not

able to discriminate between advertising and other

media content It is not until the age of 8 that most

children have understood an advertisement's

intention to persuade Other children may not

grasp this until age 12 This less sophisticated

understanding of advertising suggests that children

are particularly vulnerable to the effects of

advertising of unhealthy food

In recent years, traditional broadcast (television

and radio) and non-broadcast (point of sale,

packaging, display and sponsorship) methods of

advertising and marketing have been joined by

new and emerging media such as internet

advertising As we will see in the following

sections, regulation of unhealthy food marketing to

children through non-broadcast media is extremely

limited This is troubling given its ubiquity in

children's lives A survey of children by the

National Children's Bureau found that cinemas,

stands, magazines, displays in shops, posters and

billboards were cited as the places they saw

adverts for food most frequently Over half of

children had seen an advert on the internet and

over a quarter had seen an advert via text

message

“Well it's everywhere really - on posters, at

the cinema, in taxis, side of buses, on the

to date to limit broadcast advertising of theseproducts to children In view of the evidence of thelinks between the marketing of unhealthy food andpoor dietary choices, the Office of

Communications (Ofcom) introduced limitedcontrols on television advertising for unhealthyfood in April 2007.18

The introduction of regulations restricting theexposure of children to unhealthy food advertising

on television by Ofcom has been cautiously

9 Tackling Obesities: Future Choices, Foresight (October 2007)

10 Missing the target, Children's Food Campaign (October 2007)

draws together contributions from a number of authors expert

in the fields of medicine, academia and public interest organisations

11 Missing the target - The health consequences of obesity,

O'Connor R (British Heart Foundation) and Woolnough S (Cancer Research UK, 2007).

12 Relationship of Childhood Obesity to Coronary Heart Disease

Risk Factors in Adulthood: The Bogalusa Heart Study, D S

Freedman et al (2001)

13 Missing the target - Changing children's food preferences,

Halford J & Boyland E (University of Liverpool, 2007).

14 Missing the target - Changing children's food preferences,

Halford J & Boyland E (University of Liverpool, 2007).

15 Hastings et al (2003) Review prepared for the Food Standards Agency Centre for Social Marketing: The University of Strathclyde

16 E.g Young, B (2003) Does food advertising influence

children's food choices? International Journal of Advertising, 22: 441-459; Young, B et al (1996) The Role of Television

Advertising in Children's Food Choice: Ministry of Agriculture,

Fisheries and Food; Hastings et al (2003) Review prepared for the Food Standards Agency Centre for Social Marketing: The University of Strathclyde

17 Children's views on non-broadcast food and drink advertising,

Report by the National Children's Bureau for the Office of the Children's Commissioner, July 2006

18 See www.ofcom.org.uk/consult/condocs/foodads_new/

statement/statement.pdf

welcomed as a first step forward in both protecting

this group from undue pressure to choose

unhealthy food, and reducing the pester power

experienced by parents and carers The

restrictions are based on television viewers under

the age of 16 and apply to unhealthy foods,

showing the Nutrient Profiling Model to be an

effective means of determining what constitutes

unhealthy food (see section 5.1.2 for more details)

However, the restrictions are flawed in the way that

they apply to television programming The

restrictions only apply to programmes where

children make up a twenty percent higher

proportion of the audience than they do of the

general population, which Ofcom describe as a

viewing index of 120 Effectively this means the

restrictions only apply to children's television

programmes and exclude the early evening

programmes most watched by children, including

Coronation Street and X Factor, because these

also attract a large proportion of adults in the

audience.19The viewing figures for a fortnight in

September 2007 showed that out of the ten most

popular programmes amongst under 10 year olds,

only two were covered by the Ofcom regulations,

leaving the programmes most watched by children

under 10 years open to unhealthy food

advertising.20

This flaw has lead a consortium of experts from

health, academic and public interest organisations

to call for the restrictions to be applied to all

programming before the 9pm watershed

Government has already accepted the efficacy of

the 9pm watershed by introducing this measure to

protect children from gambling adverts

2.4 Lack of regulation of unhealthy food marketing in non-broadcast media

Professor Hastings stated recently that, whileunderstandable in the context of the last thirtyyears, the focus solely on television is dangerous

He expressed the concern that, as regulation isapplied to television, marketing budgets will shift toother less controlled options.21 Indeed Ofcomfigures show that the proportion of the total foodmarketing budget spent on television advertisingfell from 68% to 64% between 2005 and 2007.22

Hastings also draws an often overlookeddistinction between advertising (as happens

through television) and marketing The latter

incorporates the full range of promotional activityaimed not just at telling people about a product butgetting "the right product in the right place at theright price" 'Right', he notes, means liked by theconsumer and profitable to the manufacturer - andhas nothing to do with being healthy Product,price, place and promotion come together tocreate powerful brands Hastings highlights theparticular susceptibility of children to this power,citing a 2007 study published in the Archives ofPaediatrics & Adolescent Medicine that

demonstrates this by showing children preferMcDonald's-branded carrots over generic ones

In other words, focusing only on television foodadvertising and not the wider non-broadcastmarketing picture ignores a swathe of promotionalpractices shown to drive consumer behaviour, withchildren making up one of the most easily influencedconsumer groups Children's food marketing

concentrates on unhealthy food to encouragechildren to eat more of it This in turn contributes to arange of health issues including childhood obesityand its consequences, which is why this reportaddresses marketing in its broadest sense

2.5 Conclusions

It has long been known that poor diet in childhood is

a major contributor to poor health Of particular

concern is the dramatic increase in childhood

obesity Often persisting into adulthood, childhood

obesity increases the risk of suffering from a range of

serious diseases The forecasts are bleak Unless

action is taken, 55% of boys and 70% of girls are

expected to be overweight or obese by 2050

The promotion of unhealthy food has been shown

to have a significant impact on children's food

choices The bombardment of messages

promoting unhealthy food has contributed to a shift

in the balance of children's diets and is damaging

their health, often with life-long consequences

Current government regulations on marketing

unhealthy foods to children do not go far enough

The Ofcom restrictions on broadcast advertising of

unhealthy food are welcome but exclude the

television programmes most watched by children

A 9pm watershed for unhealthy food advertising on

TV would address this

More significantly, the Ofcom restrictions do notcover many other marketing techniques used topromote unhealthy food to children, techniqueswhich are being used more and more to increasethe consumption of unhealthy foods If theGovernment restricts advertising throughbroadcast media but ignores advertising throughnon-broadcast, media budgets will simply continue

to shift towards the latter in all its myriad forms

Children will continue to be exposed to unhealthyfood marketing via posters, magazines, theinternet, packaging, text messaging and other non-broadcast methods, completely underminingthe policy aim of broadcast restrictions

The next chapter includes many real examples ofhow the food industry goes about promotingunhealthy food to children and shows how self-regulation of non-broadcast advertising is failing Inlight of the state of diet-related ill-health amongchildren described in this chapter there is ampleevidence of the need for further action

There is an obvious flaw in applying controls only

to television This leaves a significant gap in

controlling the methods of food promotion that

reach and influence children The Government

has said it will go further to control unhealthy food

advertising if the evidence supports the need to do

so Additionally, it will review the impact of the

restrictions on the nature and balance of food

promotion to all children, across all media.23

In the next chapter, we will illustrate how widely

non-broadcast marketing is used to encourage

children to consume unhealthy food products

19 Missing the target - Television advertising, Professor Vivienne

Nathanson, British Medical Association (Sustain, 2007)

20 Marketing of Unhealthy Foods to Children: How TV advertising regulations are failing children, Which, November 2007

21 Missing the target - Non-broadcast marketing, 2007, Hastings,

G (Director of the Centre for Social Marketing, University of Stirling and the Open University)

22 Information supplied by Ofcom to stakeholder groups, December 2007.

23 Statement to the House of Commons by the Rt Hon Alan Johnson MP, 17 October 2007: Foresight review of obesity (http://www.dh.gov.uk/en/News/Speeches/DH_079633)

Food is promoted to children using an

increasingly sophisticated array of techniques.

Other than TV advertising, these are either

regulated using voluntary codes, or not

regulated at all.

Food is marketed using many diverse and

sophisticated ways of persuading children - and

their parents - to purchase a particular product

Together with the more traditional advertising

forms, the following promotional techniques are

used to market food products to children:

New media, e.g internet and SMS messaging

Sponsorship

Product packaging

In-store and 'point of sale' promotion

Product design

This chapter seeks to demonstrate the full extent

to which food promotion targeting children

continues to take place and discusses how it is

currently regulated In particular it considers what

is, and is not, covered by the current regulatory

regime for non-broadcast marketing and concludes

by outlining criticisms of the main voluntary

industry code currently in place

3.1 What regulations are currently in place - the CAP Code and others

There is a wide range of codes which govern thenon-broadcast marketing of food to children Themajority of these are developed and owned byadvertisers as part of self-regulatory regimes Tothe extent that they are enforced, this is alsolargely carried out by industry organisations

The body responsible for the major UK advertisingcodes is the Committee of Advertising Practice

(CAP) CAP describes itself as: "… the industry

body responsible for the UK's advertising codes CAP's Non-broadcast Committee writes and enforces the British Code of Advertising, Sales Promotion and Direct Marketing (the Code) The Committee comprises representatives of

advertisers, agencies, media owners and other industry groups, all of which are committed to upholding the highest standards in advertising."24

The main code governing non-broadcastadvertising and marketing of food to children is theBritish Code of Advertising, Sales Promotion andDirect Marketing (the CAP Code), in particularsection 47 (see Appendix 1) The CAP Codeforms the backbone of the regulatory system for all

marketing - what the existing regulation does and does not say

24 www.cap.org.uk/cap/about/cap_non_broadcast/

non-broadcast advertising and is intended to cover

content for all kinds of non-broadcast advertising in

paid-for space

Section 47 was written by CAP and

representatives of the food industry in response to

the Government's 2004 White Paper 'Choosing

Health: making healthy choices easier'.25

Choosing Health challenged the food industry to

change the nature and balance of food advertising

to children The Government committed itself to

assess whether this had happened by 2007 and

use the outcomes of the assessment to decide

whether new legislation was needed However,

this assessment has been delayed In 2006, two

years after Choosing Health was published, CAP

began a process of revising their rules on food

marketing to children These rules came into

effect on 1July 2007

According to the CAP website,26its code covers:

1) Advertisements in newspapers, magazines,

brochures, leaflets, circulars, mailings, e-mails,

text transmissions, fax transmissions,

catalogues, follow-up literature and other

electronic and printed material

2) Posters and other promotional media in public

places, including moving images

3) Cinema and video commercials

4) Advertisements in non-broadcast electronic

media, including online advertisements in

paid-for space (e.g banner and pop-up

advertisements)

5) Viewdata services such as Teletext

6) Marketing databases containing consumers'

The CAP Code is enforced by the AdvertisingStandards Authority (ASA), a self-regulated bodyset up by the advertising industry to monitor andadjudicate on issues of compliance with the rules.ASA is funded by the advertising industry through

a levy of 0.1% on display advertising and airtimeand 0.2% on Royal Mail Mailsort contracts.27

The CAP Code largely exists to ensure advertising

is 'legal, decent, honest and truthful'.28 Although

the latest revision has addressed some concerns

about the marketing of unhealthy food to children,

it is still largely designed to ensure adverts allow

fair competition, rather than protect or promote

health

There is a wide range of punishments that the ASA

can impose on errant advertisers The ASA

argues that the regulations are self-enforcing

because it is the shame of bad publicity that

primarily acts to bring advertisers into line quickly

Other sanctions such as putting out 'ad alerts' to

the sellers of advertising space; suspending

trading privileges; invoking mandatory pre-vetting

for all advertising material and, in the most

extreme cases, referral to the Office of Fair

Trading for legal proceedings are all available to

ASA if the threat of bad publicity fails to ensure

compliance

Other codes relevant to governing the marketing of

food to children include:

The International Chamber of Commerce

(ICC) International Code of Advertising

Practice,29which sets standards of ethical

conduct to be followed voluntarily by all

concerned with advertising, whether as

marketers or advertisers, advertising

practitioners or agencies, or media It is to be

applied against the background of the

applicable national law (see Appendix Two)

The European code30of the Confederation of

the Food and Drink Industry, known as the

CIAA, this the Europe-wide trade association

for the food industry has a code on marketing

food and drink to children modelled on the ICC

International Code

The UK Food and Health Manifesto

published by the Food and Drink Federation(FDF), the food industry's trade association inthe UK This document describes limitedprogress by the food industry in encouraginghealthy eating, sets out seven "commitments"

by the industry to consumers and providessome good practice guidelines to companies

Specific industry sector voluntary codes of

practice such as the Union of European

Beverages Association's (UNESDA) guidelines

(2005).32

Some individual food manufacturers, for

example Cadburys, Coca Cola and BurgerKing, have their own codes of practice formarketing to children In December 2007 anumber of large European food companiesannounced a series of voluntary measures tolimit their marketing to children Although thesedid represent a step forward in some EUcountries, the announced measures had allalready been superseded by other

developments in the UK and so will have noimpact in this country

These codes, in so far as they operate in the UK,

in some respects replicate the CAP Code andnone go further than it

3.2 What the current regulations do

not cover

Concerns have been raised for some time that

many of the ways in which foods are promoted to

children are not covered by the CAP Code

Specifically the code does not cover a number of

marketing techniques which can be broadly

grouped as follows:

Product-based - food packaging; colour and

shape of food

Promotional - many aspects of the internet and

new media; sponsorship

Placement - in-store point of sale promotion;

frequency of advertising

In response to these concerns, the Department of

Health set up the Food and Drink Advertising Forum

(referred to as the DH Forum) The DH Forum is

made up of stakeholders from both the food industry

and public interest groups and aims to: "take

forward the commitments to develop a

comprehensive strategy to further restrict the

promotion to children of food high in fat, salt and

sugar."33 The DH Forum established a number of

working parties to look at areas not covered by the

CAP Code: new media, food packaging, food

labelling and marketing in schools No new

regulations have yet emerged as a result of its work

The rest of this section considers the promotion

techniques not covered by the CAP Code

3.2.1 Product-based

Food Packaging

Packaging can be an effective part of marketing

whether or not children are shopping for a specific

product - they might simply be in a retail

environment and thereby exposed to packaging It

is also worth noting that whether or not childrenare shopping accompanied by parents, there is noevidence to show that the presence of parentsalters children's spending patterns

The DH Forum Working Group on Packagingagreed that the following presentations are used inpromotions potentially directed at children:34

Novelty products including shaped packaging ortoys;

Give-aways, prizes and collectables;

Competitions and puzzles

CAP does not consider a product's packaging to

be advertising, and so its code does not cover thisarea Indeed many techniques of food promotion,such as the use of celebrities, are allowed onpackaging, but are not allowed under the CAPCode on advertisements

But children interviewed by the National Children'sBureau said that promotions such as free gifts andnovelty packaging made them more likely to buyparticular products.35Comments included:

“The football shape of the bottle

appealed to me straight away - I am

a football fanatic!” boy, 13

“Things like collectable cars in crisp packets

become a craze in school - when one of your

friends gets one and everyone wants to get

into it and starts bringing them in to swap.”

girl, Key Stage 2

Children emphatically agreed that celebrity

endorsement of unhealthy products made them

more likely to purchase a product Marketing

which uses sport or healthy looking celebrities can

create a healthy image for a product, whether or

not it is genuinely nutritious One girl of 15 said:

“When you see a celebrity promoting

something you think well they eat that and

look great so I can too.” 36

Colour and shape of food

There are countless examples

of food products containing

artificial colouring with no

other purpose than to make

products attractive, which

would otherwise appear

bland or undistinguished

This applies to food for the

general population (such

as mushy peas; red

Leicester cheese; some yoghurts; many

egg-based products); but it is particularly common in

food products designed to attract children For

example, Fanta Tropical Fruits has particularly

bright colouring going well beyond the idea of

replicating the colour of orange fruit - the flavour it

artificially imitates Product shape is also used with

the specific aim of attracting children - for example

'Shrek' and 'Happy Hippo' biscuits are clearlytargeted at a young audience

The colour and shape of food products are notcovered by the CAP Code, nor any other code toregulate marketing

3.2.2 Promotional

New media

New media, in particular the internet and textmessaging, are increasingly important methods topromote food to children Research shows that in

2006, 14 percent of all exposure to advertising wason-line, a figure expected to grow steadily.37The

"Child Catchers" report by Which?38outlinesnumerous on-line techniques that companies use

to build up brand allegiance and promote particularproducts Although on-line marketing still accountsfor a relatively small proportion of the total moneyspent on marketing unhealthy food, its importance

is growing as part of companies' overall marketingstrategies.39 One study found that 43% of primaryschool children said they would eat or buy more of

33 From the minutes of the initial DH Forum meeting on 7 July, 2005.from www.dh.gov.uk/en/Policyandguidance/

38 Available at: www.which.co.uk/files/application/pdf/

060131childcatchers_rep-445-76882.pdf

39 Thompson Intermedia's report to the DH Forum estimated that in

2005 online promotions accounted for one percent of the money spent on food promotion

a food brand because they had seen it on-line or

played a game about it, and over 20% go on-line

to find out about their favourite foods and snacks.40

New media and websites are used to promote food

to children in a wide variety of ways While the DH

Forum Working Party on New Media Advertising41

concluded that the CAP Code was "the most

extensive self-regulatory framework already

covering new media", ASA's new Chair, Lord Smith

of Finsbury, recently warned that the ASA is unable

to rule on nine out of ten complaints made to it

about the internet because they involved the

'editorial' content of websites.42

The DH Working Party noted that the CAP Code

specifically does not include:

Website content including anything emanating

from that content, e.g streamable downloads,

wallpapers, screensavers, or on-line games

The CAP Code classifies these as editorial

content and not as marketing material

Commercial e-mails or SMS text messaging

to existing customers about an existing

relationship or past purchases

Marketing activity originating outside the UK

If the ASA receives complaints about this

activity it refers the complaint to the relevant

national regulatory body (if such a body exists)

Product Placement in new media - e.g.

products placed inside computer games which

are currently seen as editorial content

Since the majority of new media marketing has been

defined by the CAP Code as "website content," it is

impossible to claim that there is effective regulation

of most new media marketing As we will see from

some of the examples below, this includes many of

the most common ways the food industry markets

unhealthy food products to children

Food company websites targeting children: (Clockwise from top right) The Cadbury's 'Fun and stuff' page; Nugget Valley from the Nestle Fantasy World of Fun; The Mysterious Treasure Chest at the Haribo site; Board games on the McDonalds' 'Kids Zone'; Wayne Rooney featuring on the Coca-Cola website (www.coca-cola.co.uk/football/streetstriker).

All examples live as of January 2008.

The most basic way that companies use newmedia to promote food to children is throughspecifically targeted websites For example,McDonald's have a 'Kids Zone' with a series ofgraphics aimed at attracting young people to theMcDonald's site Cadbury's have a 'Fun and stuff'section of their website, with a range of featuresattractive to children, including a game which'splurges' your desktop with chocolate.43The softdrink manufacturer Irn Bru aims its website(www.irn-bru.co.uk) squarely at children, with a'Gasping Grannies' game It also encourageschildren to enter their details to win 'The SacredBadge', but does not recommend that they seekthe permission of parents to do this

Food companies also sponsor special websitesaimed at children to promote their products Forexample the 'Fantasy World of Fun'

(www.fantasyworldoffun.com) website is notobviously branded as a Nestle website but includeslinks to various Nestle cereals throughout the site

Offering children the option of downloadingscreensavers, toolbars or customised cursors isalso a popular practice for food companies Thisenables their brand message to persist, even afterchildren have left the website

A lot of food company websites provide games tochildren For example, Kinder offer a wide range

of games to download (www.magic-kinder.com/

mkv2/GB_en/games_todownload.do) and to playon-line (www.magic-kinder.com/mkv2/GB_en/

games_ai.do); McDonalds offer a number of

40 Intuitive Media, New Media Age magazine, July 2007

41 Minutes, including the attendees at the meeting, available from: www.dh.gov.uk/en/Policyandguidance/

Healthandsocialcaretopics/Healthyliving/DH_4115815

42 Financial Times, Advertising regulator to target internet, 3 July 2007.

43 www.cadbury.co.uk/EN/CTB2003/fun/splurge.htm

games including one called Marmalade Surprise(www.mcdonalds.co.uk/asp/kidszone/

paddington.asp) where Paddington Bear has tokeep a number of items from falling off a shelf ontoMrs Bird's floor

A number of companies offer children the chance

to send 'e-cards' to their friends These are, ineffect, branded emails which can be sent by onechild to another with the effect of promoting abrand or product The Cadburys website provides

a good example of this: www.cadbury.co.uk/EN/CTB2003/ fun/fun_cards/

A number of food companies use their websites torun promotions linked to children's films Forexample, Kinder link their product to the film 'Shrekthe Third' (www.magic-kinder.com/mkv2/

GB_en/promo.html)

More food company websites targeting children (Clockwise from top left): Marmalade Surprise from the McDonalds’s ‘Kid’s Zone’; a tie-in with the film ‘Shrek the Third’ on the Kinder site; e-cards on the Cadbury’s site; games to download also from the Kinder site All examples live as of January 2008.

18

Indeed, it is the relatively low cost of new media as

well as their capacity for building relationships

directly with children that makes these such

attractive marketing methods SMS text messaging

is therefore also increasingly being used as a

marketing technique and with the growth in mobile

use by children it could have very wide reach into

this group

Some companies, such as Coca-Cola, appear

already to have strategies to exploit the mobile

internet marketing surge Mark Greatrex, the

company’s senior vice president of marketing, said

earlier this year that the company "needs to continue

to recruit future generations of consumers" and

"mobile marketing is absolutely where it's at for us

going forward."44This comment was in the context of

unveiling plans under the Sprite label for a social

networking site, 'The Yard', aimed at teens

Coca-Cola worked closely with top US wireless providers

on the site to tailor the format of the 'services' for use

on mobile phones whilst offering free content The

site will promote Sprite through free music and video

clips to visitors who type in a number located under

bottle tops Coca-Cola has pledged to 'put mobile at

the centre of plans to boost customer loyalty to its

Sprite brand'.45Last Christmas 2006, Coca-Cola

launched its first mobile branding campaign,

encouraging customers to build and send Christmas

cards on their mobiles Operating initially in the US

and China, Coca-Cola is keeping other markets

under review with a view to expand

Another example can be found at the Starburst

website, which features a text messaging game

advertising its Sour flavours Children are invited to

text a "sour" message to their friends' mobiles

Options to send include "I can smell you from

here", "You so wish you were me" and "Know who

likes you? Neither do I", which have an

advertisement for Starburst at the bottom.46

Perhaps because there is much stronger statutoryregulation of premium rate phone lines through theindustry-funded Independent Committee for theSupervision of Standards of the TelephoneInformation Services (ICSSTIS) code, premium ratephone lines are rarely used to market food products.47

Use of celebrities and brand characters

The CAP Code prohibits the use of celebrityendorsement in food advertising if the person inquestion is seen to be "popular with children" andthe industry acknowledges that 'plastering cartooncharacters over unhealthy food products is nolonger the win-win it once was'.48 However, there

is no restriction on stars who appeal to teenagers,and in reality many stars are likely to appeal toboth teenagers and younger children - despitewhat marketers might argue It has also beensuggested that some celebrities, such as GaryLineker (Walkers Crisps), are intended to appeal toadults rather than to children.49

Although the use of licensed characters(characters from films or TV shows) is restricted,the CAP Code does not apply to brand characterssuch as Tony the Tiger or Coco the Monkey

These characters are described as "lessinfluential".50

47 As discussed at the DH Forum.

48 Licensing changes character, p47, The Grocer, 20th October 2007

49 Financial Times, Advertising regulator to target internet, 3 July 2007.

50 From the notes accompanying the new CAP Code:

963D86423219/0/Food_Soft_Drink_Kids_final.pdf

help enhance brand

image and value For example in 2007, Irn Bru

sponsored the Falkirk Wheel tourist attraction in

Scotland, with its 'Irn-Bru FunFactory and Walk', in whichchildren slide through giant Irn-Bru cans McDonalds sponsoryouth football coaching toassociate their brand withhealth and fitness, allowingthem to target youth in a highlyfocused way Coca-Colasponsor football for similarreasons.51

The CAP Code does not cover sponsorship The

International Chamber of Commerce (ICC) defines

sponsorship as follows: "Sponsorship is any

commercial agreement by which a sponsor, for the

mutual benefit of the sponsor and sponsored party,

contractually provides financing or other support in

order to establish an association between the

sponsor's image, brands or products and a

sponsorship property in return for rights to promote

this association and/or for the granting of certain

agreed direct or indirect benefits."52

References to children can be found in the ICC's

International Code on Sponsorship (2003), which

states at Article 7:

“Sponsorship addressed to or likely to influence

children and young people should not be framed

so as to take advantage of their youth or lack of experience Furthermore, such sponsorship should not be framed so as to harm children or young people mentally, morally or physically, nor to strain their sense of loyalty vis-à-vis their parents or guardians.” 53

There is scope for circumventing these restrictionsbecause the language is open to interpretation, forexample, what constitutes 'taking advantage' of aperson's youth? Even where the meaning of theICC Code is reasonably clear it is not necessarilyenforced For example, it is reasonable to arguethat a sponsorship programme that encouragespeople to consume more unhealthy food would bedamaging to their health However, this clausehas not stopped high-profile sponsorship deals ofchildren's football by companies such as

McDonalds and Coca-Cola

3.2.3 Placement

In-store and 'point of sale' marketing

There has been concern for some time that manysupermarkets and convenience stores encouragethe casual purchase of confectionary and other,largely unhealthy, snack products by stocking them

at tills and other prominent places in store

Other 'in-store' techniques to increase sales ofparticular products identified by the DH ForumWorking Group On Point Of Sale Marketinginclude "buy one get one free" (BOGOF) offers;discounts; free gifts; sampling; gondola end54

merchandising; and in-store television

20

This aspect of marketing

is currently unregulated

with only minimal

voluntary steps taken by

a minority of retailers

The Co-op

supermarkets have

agreed, on a voluntary

basis, not to sell

unhealthy food at tills

This suggests a level of

acceptance that in-store

product placement can

affect the purchasing practices of children While

voluntary action by some companies should be

congratulated, there is clearly scope for

considering how protection might be strengthened

Neither we nor the DH Forum Working Group have

identified any regulation that covers in-store and

point of sale marketing

Frequency of advertising

Frequency refers to how often an advertisement is

run This obviously contributes to the

effective-ness of any campaign, as an advertisement shown

once will be less effective than an advert shown

several times over a short period of time

In addition, placement of an advertisement

contributes to the effectiveness of a campaign in

respect of the audience it will reach For example,

advertisements in magazines like Smash Hits or

Shoot! will reach more children than one published

in The Economist

For broadcast advertising, Ofcom has taken the

first tentative steps towards regulating this area by

restricting the television scheduling times during

which advertisements for unhealthy food may be

shown However, the CAP Code does not addressthe placement of non-broadcast adverts; and none

of the codes reviewed address frequency

3.3 Criticisms of the current codes

The self-regulatory codes have been criticised bythe Children's Food Campaign and other publicinterest groups for three reasons The first is that,

as noted above, the scope of the Code does notcover all promotional activity However there aretwo other criticisms commonly made of the CAPCode and other self-regulatory codes:

the language used definitions of both the age of children and thetypes of food covered

enforcement

3.3.1 The language used

Concerns have been expressed that the wording

of the self regulatory codes is often vague andnon-specific For example, the CAP Code states

that "Marketing communications should not

condone or encourage poor nutritional habits or an unhealthy lifestyle in children".56 It suggests that

"marketing communications should be prepared

with a due sense of responsibility".57 Whatconstitutes condoning or encouraging, or 'poor'habits is open to argument, as is 'a due sense ofresponsibility'

51 For example, the Cola Junior Cup in Ireland; the Cola 7's for schools in Scotland.

With regard to the FDF's UK Food and Health

Manifesto, Sustain wrote in 2005: "The FDF's

Manifesto for Food and Health, published in

September 2004, is another example of weakness

in a voluntary code It contains voluntary

"commitments" which lack targets and time limits

for implementation, and is peppered with vague

terms such as "encourage its members",

"exploring new approaches", and "discussing with

Ofcom and Government the whole range of

concerns relating to advertising to children".58

3.3.2 Definitions of 'children' and

'unhealthy food'

Definition of children

The UN Convention on the Rights of the Child

defines children as 18 years and under UK law

defines a child in a variety of ways, ranging

between under 16 and under 18 years of age,

depending on the policy area and associated rights

and responsibilities With respect to broadcast

advertising Ofcom has accepted that restrictions

on television food advertising should apply to

people under 16 years of age

A report on children's attitudes to non-broadcast

food and drink advertising commissioned by the

Office of the Children's Commissioner, found that

teenagers are in need of protection from the

marketing of unhealthy foods, as "marketing

techniques are increasingly sophisticated and

often work at such a subliminal level that it is not

recognised".59 Statements from 15 year olds such

as "I know it's not good for me and it's a ripoff

-but I am still going to buy it because its small and I

like the shape" 60 show that it is not only younger

children who are vulnerable to this kind of

marketing

However, the codes reviewed use differentdefinitions of 'children' and tend to apply only toyounger children For example, the CAP Code

states: "Except those for fresh fruit or fresh

vegetables, food or drink advertisements that are targeted directly at pre-school or primary school children through their content should not include promotional offers."61

Similarly, the Union of European BeveragesAssociations' guidelines on soft drink advertisinginclude a commitment by signatories not to market

to children under 12 years on various advertisingmedia, including the internet.62 The Coca-Colacode states it will not advertise on programmeswhere half the audience is made up of childrenunder 12 years Cadbury claims not to advertise

to children under 8 years where they make upmore than half the audience of a programme.However, very few programmes indeed have amajority of under 8 year olds in the audience and

so children continue to be subjected to a very highlevel of exposure to the company's advertising.The result of this inconsistency, coupled with thedifference between the non-broadcast andbroadcast rules, amounts to confusion about theadvertising restrictions and a number of loop-holeswhich are being exploited

While most children can be expected to recognisethe techniques and influence of advertising as theyget older, there is no justification for taking differentapproaches across broadcast and non-broadcastadvertising Under 16s who are susceptible to thepower of broadcast advertising are no less vulnerablewhere a different medium is used The discrepancy inregulation of non-broadcast advertising and

broadcast advertising which targets under 16ssupports the case for stronger intervention in themarketing of unhealthy foods across all formats

22

Definition of unhealthy food

The Food Standards Agency (FSA) has developed

a nutrient profiling model for Ofcom to use in

applying the new rules on broadcast advertising to

children Public interest groups have argued that

advertising restrictions should only apply to

unhealthy products as defined by the FSA's

Nutrient Profiling Model (explained in section

5.1.2) The Government has supported this

approach as it provides an incentive for companies

to reformulate existing products and market

healthy food to children

There are three reasons for applying tougher rules

to the ways in which unhealthy food can be

marketed:

First, this will reduce demand for the products that

are no longer advertised The Hastings Review63

published by the Food Standards Agency in 2005

is the definitive piece of academic research on the

effect of advertising Having concluded that

advertising does increase consumption of

unhealthy food, both as brands and as categories

of foods, it follows that effectively regulating

advertising will help to reduce consumption

Second, it will promote advertising for healthier

products by encouraging food companies to

advertise their healthier products in order to raise

their brand's profile Ending advertising and

promotion for unhealthy food may also reduce

demand for advertising slots, reducing prices to a

point where it becomes economic to advertise

healthier food

Third, it will encourage manufacturers to continue

to reformulate their products so that they can be

classified as healthy and therefore legally

marketed The food industry has already

undertaken a programme of reformulation ofestablished products to make them healthier

Although this is not possible for all food categories,companies can still go further to reformulate theirproducts to make them healthier Introducing asubstantial incentive to reformulate, such as beingable to advertise to children, will hasten thisprocess For example, McDonalds claim to havereformulated Happy Meals to ensure a significantnumber of meal combinations are classed ashealthy by nutrient profiling.64

However, the Nutrient Profiling Model is rejected bysome in the food industry, who claim that it

"demonises" individual food products There arealso concerns that the model assesses food per 100grams of each product, rather than by portion sizes

In light of these industry views, the new CAP Code isapplied equally to all food products, with the

exception of fresh fruit and vegetables, regardless oftheir healthiness By treating all food the same theCAP Code provides little incentive to manufacturers

to promote healthier food options or to reformulatetheir products This supports our argument that theCAP Code cannot be used as a method to controlunhealthy food advertising to children

57 CAP Code section 47.7(a) and 47.8

58 The Children's Food Bill: Why we need a new law, not more voluntary approaches C Powell and J Longfield, Sustain,

63 Hastings G, Stead M, McDermott L, et al Review of Research

on the Effects of Food Promotion to Children Glasgow:

University of Strathclyde Centre for Social Medicine, 2003 [www.foodstandards.gov.uk/healthiereating/promotion/

readreview]

64 www.mcdonalds.co.uk/?f=y

3.3.3 Enforcement

The ASA will only investigate a potential breach ofthe Code if it receives a complaint The

enforcement of the Code is therefore dependent on

an individual or company taking the time to

complain to the Authority about an advert they haveseen This creates the potential for adverts thatbreach the Code to not be held to account because

it is not certain that they will be investigated

This is in contrast to the statutory system

governing television advertising, where all advertsare submitted to the Broadcast Advertising

Clearance Centre (BACC) before transmission toensure they comply with the rules This clearancesystem is helpful to advertisers, who are givenguidance on how not to breach rules before theyare broadcast, and helps to protect the public byensuring that, in the main, adverts which break therules are not broadcast

3.4 Conclusions

This chapter shows that unhealthy food is heavily

promoted to children through a variety of

non-broadcast media and promotional mechanisms The

current self-regulatory scheme for non-broadcast

advertising, set out primarily in the CAP Code, is

unsatisfactory for a number of reasons:

First, its remit is narrow and leaves a swathe of

widely-used marketing techniques such as those

described in this chapter unregulated These include

product packaging, the internet and other forms of

new media, sponsorship and in-store placement, all

of which have been shown to affect children's food

choices These omissions present a significant

loop-hole in the current regulatory framework

Second, the CAP Code aims to ensureadvertisements are 'legal, decent, honest andtruthful' and the CAP / ASA system is not designed toprotect or promote health; indeed it does not

distinguish between healthy and unhealthy food

CAP has consistently rejected calls from a widerange of public interest groups to adopt the NutrientProfiling System as a way to differentiate betweenhealthy and unhealthy foods

Third, the language used across codes is vague, thedefinition of 'children' is inconsistent and rule

breaches are only investigated following complaints,leaving the codes open to abuse and makingenforcement more difficult

Given the threats to child health outlined in theprevious chapter, we believe this makes the currentsystem for regulating non-broadcast marketinginadequate to protect children

Lessons can be learnt from the successful

regulation of tobacco marketing in the UK and

from examples of marketing controls from

abroad.

Across the globe there are many different

approaches to regulating advertising, some of

which can be usefully applied to better protect

children from unhealthy food advertising in the UK

First, this chapter examines what can be learnt

from the UK approach to prohibiting tobacco

advertising, which addresses non-broadcast as

well as broadcast advertising Second, it looks at

advertising controls in Quebec, Canada; and in

Sweden Although neither Quebec nor Sweden yet

attempt to restrict all forms of non-broadcast

advertising by statute, their approaches are useful

in that they demonstrate good practice examples

(for example drafting definitions; approach to

enforcement) that could be adapted for use in the

UK

Although there is only limited evidence of the

effectiveness of the regulatory approaches

examined in this report, the examples are not

included to hail them as uniquely successful

responses to the complex issue of diet-related ill

health, in particular childhood obesity Rather,

they show how other jurisdictions, recognising the

need to protect children from the influences of

advertising, have gone about their task They also

demonstrate that it is possible to regulate food

advertising in non-broadcast media in a practical,

workable way None of the examples legislated for

stronger controls on advertising to children

believing that this alone would end problems of

diet-related ill health

As this report acknowledges, mandatoryrestrictions on the promotion of unhealthy food tochildren must take place together with a range ofmeasures, such as encouraging healthy eatingand taking more exercise, if serious child healthproblems are to be addressed The weight to begiven to the limited evidence available is

acknowledged appropriately below

4.1 Tobacco control in the UK

The marketing and promotion of tobacco productshas been successfully regulated in the UK Thereare only limited comparisons that can be madebetween the debates on tobacco control and theissue of marketing of food After all, people need

to consume food to survive whereas tobaccoproducts are unnecessary and always unhealthy.However tobacco control legislation does providesome useful legal precedents that could informattempts to control marketing for unhealthy food.The Tobacco Advertising and Promotions Act 2002('the Act') bans advertising and promotion

(including sponsorship) of tobacco products in the

UK, with some limited exceptions The Act doesnot cover television and radio, which are bothalready subject to regulation under theBroadcasting Acts of 1990 and 1996 as well asother means

Under the Act it is an offence to publish, print,devise or distribute a tobacco advertisement (orcause any of these activities) in the course of abusiness in the United Kingdom 'Tobaccoadvertisement' is defined as: "an advertisement

whose purpose or effect is to promote a tobacco

product (our emphasis) The term "advertisement"

includes direct advertising (for example posters,

billboards and press advertising) and other forms

of promotion such as direct marketing References

to "publishing" include any means of publishing,

including electronically Therefore advertising via

the internet is included in the ban but, again, this

cannot apply to electronic advertising or promotion

generated by anyone outside the UK

In summary, anyone in the UK who, in the course

of business, is involved in the commissioning,

design, printing, publishing, sale or distribution of a

tobacco advertisement or causes any of these

activities to take place could be guilty of an

offence This approach captures all potential

players in the advertising chain who are involved in

material which has the purpose or effect of

promoting tobacco products This is helpful in

considering similar all-encompassing restrictions

on advertising unhealthy food to children, as it has

an impact on non-traditional forms of promotion

such as point-of-sale promotion and sponsorship

Determining what has the 'effect' of promoting

could be open to argument, potentially leading to

new loop-holes or creative marketing practices to

get around the proposed prohibition For present

purposes, it is instructive to consider how the issue

of capturing intended effects has been addressed

in the tobacco context In addition to using a

broadly worded general ban, the Act specifically

addresses certain promotional practices (such as

shop display, free distribution, sponsorship and

brand-sharing).65 This sets out, or provides the

regulation-making power to set out, how the

restrictions will apply

The regulation-making power concerning the

display of tobacco products and prices at places

where they are offered for sale has so far not beenexercised In general, cigarettes are displayed in agantry unit or vending machine, but there is noformal regulation of the physical configuration ofproduct display in shops This has been criticised

by Action on Smoking and Health (ASH), who point

to international experience that shows the display

of products can be configured to produce apromotional effect.66For this reason our proposalsfor advertising unhealthy food to children takedisplay into account

The Act specifically prohibits free distribution ofany product or coupon if the purpose or effect is topromote a tobacco product Regulation-makingpower is included should a Minister wish to restrictmaking products or coupons available at a nominalsum or substantial discount

Section 10 of the Act bans sponsorshipagreements if the purpose or effect of anythingdone under them is to promote tobacco products,although it does not ban the existence of thesponsorship itself

As for penalties for breaching tobacco advertisinglaw, offences are punishable on summary

conviction by a fine of up to £5,000, up to sixmonths imprisonment, or both; and, on indictment,

an unlimited fine, up to two years imprisonment, orboth The availability of a scale of penalties isintended to ensure that those who might betempted to breach the legislation repeatedly wouldface appropriate sanctions

Enforcement is the responsibility of 'enforcementauthorities' in the respective countries of the UK -

in practice, local trading standards officers andtheir equivalents