Advertising bans and obesity

by Joe Lederman, John Gao and Julian Wan © Lawmedia Pty Ltd, April 2007
Food Lawyers & Consultants

Recent publicity has surrounded calls by university academics and others supporting a ban on the advertising of some foods being pitched to children. Furthermore, a recent inquiry by a South Australian parliamentary committee on fast food and obesity made numerous recommendations on how the government should tackle the ‘obesity epidemic’. While recognising that an advertising ban should not by itself solve the obesity problem, the committee stated that such advertising bans should be considered as one “important component” of any strategy. In this article we provide an analysis of the contentious legal issues surrounding any proposal to restrict or ban advertising of so-called “junk foods” or “fast foods”.

Obesity is becoming one of the world’s most significant public health problems. Once considered a problem restricted to the developed nations, obesity is now starting to be seen parts of the developing world as well (see Food and Agriculture Organisation of the United Nations, The developing world’s new burden: obesity). Australia is no exception with one in five Australians now obese with resultant health costs estimated at around $21 billion per annum.

To tackle the problem, on 1 June 2006 the South Australian Minister for Health moved a motion for the Social Development Committee to investigate and report upon the link between fast food consumption and obesity. The report titled Fast Food and Obesity (the 25th report of the Social Development Committee) (‘the SA Report’), was tabled to the South Australian Parliament on 27 March 2007 – among its 30 recommendations was a recommendation that the State government examine legislative options regarding television advertising (see Recommendations 14 to 16 at page 5 of the SA Report).

Various studies claim to demonstrate the benefits of reducing TV advertising for unhealthy food, particularly the advertising that has been promoted to children and adolescents. In a report published by the Victorian Government, titled “Assessing Cost of Effectiveness of obesity interventions in children and adolescents – Summary of results” (‘the ACE Report’), the Victorian Department of Human Services  concluded that a reduction in advertisements of products that are high in sugars or fat which are targeted at children under 15 years of age would be both “extremely cost-effective” and cost saving (see pages 37, 38 of the ACE Report).

The proposal for a State government to introduce its own bans on junk food advertising would face at least three legal hurdles:

  1. A constitutional issue relating to whether or not the States have the power to legislate such a ban
  2. Whether banning advertising is the most effective method of tackling the obesity problem
  3. Which definition of “junk food” should be used as the basis for the ban.
We deal with each of these issues separately.

The Jurisdiction Question

A characteristic of Australia’s Federal political system is that there is a division of power between the Commonwealth Government and State governments. The Commonwealth government may only legislate over areas which it has be expressly given authority to do so under Section 51 of the Commonwealth of Australia Constitution Act (‘the Constitution’). The States are able to legislate on any area, except for laws which would be covered under section 52 of the Constitution.  In the event a State law conflicts with a Commonwealth law, however, to the extent that the two laws are inconsistent, the Commonwealth law will prevail and the conflicting State law will be held invalid (see Section 109 of the Constitution).

The Commonwealth under section 51(v) of the Constitution is given the power to make laws “with respect to postal, telegraphic, telephonic, and other like services”, which includes television broadcasting. Although this does not necessarily preclude a State from introducing legislation which regulates television advertising, it does create practical difficulties as any law introduced cannot interfere with any existing Commonwealth laws. Associate Professor Elizabeth Handsley from the School of Law, Flinders University raised this exact point, claiming that although there may be no point in having State legislation compete with Commonwealth legislation, State legislatures should “think it through.... and not just back off because someone said it was a Commonwealth matter” (see page 62 of the Report).

However, the practical impediments to States enacting legislation to restrict advertising of unhealthy food cannot be underestimated. Assuming a State legislature was able to draft legislation which did not conflict with any existing Commonwealth legislation, the legislation would only be effective if it had the support of the Commonwealth. Unless this was the case, the Commonwealth could easily render the State law invalid by enacting legislation expressly permitting the advertising of such foods.

There is however no reason constitutionally why the Commonwealth would be unable to restrict advertising of food on television. The Tobacco Advertising Prohibition Act 1992 (Cth) operating together with the Section 7 of Schedule 2 of the Broadcasting Services Act 1992 (Cth) imposes on tobacco products the types of advertising restrictions that have been proposed for unhealthy foods. The Victorian Department of Human Services in its ACE Report acknowledges, nevertheless, that a restriction on advertising of foods that are high in sugar or fat is “currently politically unacceptable” (see page 38 of the ACE Report).

Is an Advertising Ban really the most effective model?

The ACE report looked at a range of options against obesity including banning advertising, active after-school activities, a “walking school bus” and even gastric banding for severely obese children.

The ACE report found that the most effective models were the banning of advertising and gastric banding for severely obese children.

The ACE report stated that the banning of junk food advertising would be twice as effective as gastric banding, three times more effective than banning sweet carbonated beverages in schools and more than 10 times more effective than some of the active lifestyle based options.

The ACE Report also found that an advertising ban would be the cheapest option as it would have the broadest reach with low implementation costs.

The remaining legal question is to agree on the definition of what foods could be subjected to advertising bans.

Can “Junk Food” really be defined?

One of the main stumbling blocks in efforts to regulate the advertising of so-called “junk foos” or unhealthy food is in finding an acceptable definition of “junk food”. The term is loosely defined as foods which are perceived to be unhealthy or of low nutritional value. The problem is that there is no clear answer as to how unhealthy a food needs to be for it to be considered “junk food”.

An article published by the BBC in November 2006 claimed that the term “junk food” is reflective of “snobbery and class”. The article claimed that while foods from the cheaper fast food restaurants such as McDonalds and Domino’s Pizza are considered “junk food”, the more expensive restaurants are “seen as being acceptable and trendy, and possibly even healthy”. An example given was that of a dish like duck a l’orange, which contains 3 to 4 times as much fat per serving as a serve of McDonald’s French fries.

The term “junk food” in itself is a pejorative word. It is a statement which implies a value judgement and carries connotations of a political ideology. In defining what should and should not be advertised to children, a description of unhealthy food as “junk food” serves no useful purpose and ought not be used.

The following are three options for the definition of the subject of the advertising ban.
  1. The UK advertising authority, Ofcom has put a ban on junk food advertising during programs which may appeal to children under the age of 16. The definition of “junk food” adopted by Ofcom is that of the UK Food Standards Agency.

    It is based on a points-based system that Food Standards Australia New Zealand has recently also proposed be adopted as the threshold test for the making of general level health claims. We have analysed this model in more detail in our article in the health claims proposal P293 in this issue of the FoodLegal Bulletin.

    The UK Food Standards Agency system punishes foods that are high in energy, saturated fat, sugar and salt and rewards foods high fibre, protein and fruit and vegetable content.
  2. The ACE report, mentioned above, found that banning the advertising of high sugar and high fat foods to children was the most cost effective way of reducing the prevalence of obesity. The ban assessed in that report was only for the advertising of high fat and high sugar foods.
  3. In Australia, Senator Bartlett (of the Australian Democrats) introduced a Bill into Federal Parliament in 2006 called the Protecting Children from Junk Food Advertising Bill 2006. The Bill does not consider the definition of “junk food” and does not make any value judgements about what foods are to be considered good and bad; it simply places a blanket ban on all food advertising during children’s viewing hours. The approach therefore avoids the problem of agreeing on a definition of “junk food”. The Bill simply presumes that a ban on all foods being advertised during the children’s viewing hours avoids any need to discriminate between food types and thus one need not get embroiled in arguments for or against the health merits of any particular food product.

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This is general information rather than legal advice and is current as of 12 Dec 2015. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.