Download 2 Food Marketing to Children

Child Rights as a Basis for the Regulation of Food Marketing: The Role of the United
Nations Convention on the Rights of the Child
Katharina Eva Ó Cathaoir1
1 Introduction
Childhood obesity is a global health epidemic which carries an increased risk of
cardiovascular diseases, diabetes, musculoskeletal disorders, and certain types of cancer.2
Also of concern is that children with obesity experience stigmatisation, bullying and social
isolation.3 The causes of childhood obesity are multifaceted but include poor diet and lack of
physical exercise, with media and technology recognised as contributory factors. 4 Food
marketing has emerged as an area of concern, as a number of studies have shown that
children around the world are exposed to thousands of television advertisements for high fat,
salt or sugar (HFSS) foods each year. This can lead to increased snacking, and impact on
future purchase requests as well as independent purchases.5 Furthermore, marketing practices
increasingly harness digital technologies to extend the scope of advertising campaigns.6
This chapter aims to analyse and assess the extent to which the United Nations Convention
on the Rights of the Child (CRC) can inform the regulation of HFSS food marketing to
children. In general, legislatures have been cautious to limit the marketing of unhealthful
food to children. A child rights approach to food marketing to children has been suggested,
but inadequately explored.7 Rights-based approaches have the potential to transform society’s
perspective on public health issues from a private problem to a legal, governmental
1
This work is supported by the research programme 'Governing Obesity', funded by the University of
Copenhagen Excellence Programme for Interdisciplinary Research (www.go.ku.dk). My thanks go to my
colleagues in WP1, in particular Professor Mette Harlev, for comments and encouragement. All errors are my
own.
2
‘Why does childhood obesity and overweight matter?’ World Health Organisation available at
http://www.who.int/dietphysicalactivity/childhood_consequences/en/ (accessed 19 December 2014); OECD
Directorate for Employment Labour and Social Affairs Obesity Update (2014).
3
Rees RW et al ‘“It’s on your conscience all the time”: a systematic review of qualitative studies examining
views on obesity among young people aged 12-18 years in the UK’ (2014) 4 BMJ open.
4
Lobstein T et al ‘Obesity in children and young people: a crisis in public health’ (2004) 5 Obesity Reviews 4;
Lobstein T and Dibb S ‘Evidence of a possible link between obesogenic food advertising and child overweight’
(2005) 6 Obesity reviews 203.
5
Kelly B et al ‘Television food advertising to children: a global perspective’ (2010) 100 American Journal of
Public Health 1730; Harris JL et al ‘Priming effects of television food advertising on eating behavior’ (2009) 28
Health psychology 404; Coon KA & Tucker KL ‘Television and children’s consumption patterns. A review of
the literature’ (2002) 54 Minerva pediatrica 423; Linn S & Novosat CL ‘Calories for sale: food marketing to
children in the twenty-first century’ (2008) 615 The ANNALS of the American Academy of Political and Social
Science 133.
6
Montgomery KC et al ‘The new threat of digital marketing’ (2012) 59 Pediatric clinics of North America 659.
7
Swinburn B et al ‘The “Sydney Principles” for reducing the commercial promotion of foods and beverages to
children’ (2008) 11 Public health nutrition 881; Ingleby R et al ‘UNCROC and the prevention of childhood
obesity: the right not to have food advertisements on television’ (2008) 16 Journal of law and medicine 49;
Livingstone S & O’Neill B ‘Children’s rights online: challenges, dilemmas and emerging directions’ in Van Der
Hof S et al (eds) Minding Minors Wandering the Web: Regulating Online Child Safety (2014) 19-38; Waterston
T & Goldhagen J ‘Why children’s rights are central to international child health’ (2007) 92 Archives of Disease
in Childhood 176 .
1
responsibility.8 Rights rely on law as a basis, and not morals or beneficence.9 They offer all
States Parties a basic framework which, if fully implemented, can provide children with
universal standards of protection. On the other hand, it has been argued that state
preoccupation with body size is contrary to a rights approach.10 This article focuses on the
responsibilities of states and businesses – not whether the term ‘obesity’ is ‘rights’
appropriate.
The chapter is divided into six sections. Section 2 outlines the evidence linking advertisement
of HFSS foods to childhood obesity, with particular reference to digital technology. Section 3
explores existing rights approaches to food marketing to children emanating from the United
Nations Committee on the Rights of the Child (UNCRC Committee), the Special Rapporteurs
on the Right to Health and on the Right to Food, ‘World Obesity’ and the World Health
Organisation (WHO). In section 4, legislation from the European Union (EU), United
Kingdom (UK) and Sweden is analysed from a child rights perspective. Sections 5 and 6
recommend that the UNCRC Committee take a number of actions to increase their efforts to
protect child rights through the regulation of marketing.
2 Food Marketing to Children
The WHO has commissioned an extensive study on the effect of food marketing on children.
It concludes that food marketing which focuses on children is widespread, with HFSS foods
most heavily advertised.11 There is strong evidence that food promotion influences food
choices at category and brand level.12 Food promotion can have an impact upon a child’s
nutritional knowledge and perception of a healthy diet; influence food preference, purchasing
choice and requests, consumption behaviours and diet-related health status; and act as a
significant independent determinant of food behaviours and health status.13 Food promotion
typically makes use of premium offers, promotional characters, nutrition and health-related
claims, the theme of taste and the emotional appeal of fun.14
While television commercials remain the most popular marketing medium, digital
technology, in particular internet-enabled devices, are increasingly used as a promotional
tool.15 For example, internet advertising revenues in the United States were measured at
$23.1 billion for the first six months of 2014, an increase of 15 per cent in spending from the
Simpson C & Simpson B ‘Childhood obesity and the importance of rights discourse: a way forward for public
health practitioners’ (2004) 4 Environmental Health 53.
9
UNCRC Committee , General Comment No 7: Implementing Child Rights in Early
Childhood UN/CRC/GC/7 (United Nations, 2005).
10
O’Hara L & Gregg J ‘Human rights casualties from the “War on Obesity”: why focusing on body weight is
inconsistent with a human rights approach to health’ (2012) 1 Fat Studies.
11
Cairns G et al ‘Systematic reviews of the evidence on the nature, extent and effects of food marketing to
children. A retrospective summary’ (2013) 62 Appetite 209.
12
Cairns G et al ‘Systematic reviews of the evidence on the nature, extent and effects of food marketing to
children’ (2013) Appetite.
13
Cairns G et al ‘Systematic reviews of the evidence on the nature, extent and effects of food marketing to
children’ (2013) Appetite.
14
Jenkin G et al ‘A systematic review of persuasive marketing techniques to promote food to children on
television’ (2014) 15 Obesity Reviews.
15
Cairns G et al ‘Systematic reviews of the evidence on the nature, extent and effects of food marketing to
children’ (2013) Appetite.
8
2
first six months of 2013.16 The internet has brought new potential for the level and reach of
marketing, given its accessibility and low cost compared with traditional media.17
Furthermore, children access a variety of media: for example, an EU survey from 2005/2006
found that (in the opinion of their parents) 60 per cent of 6-10 year olds use the internet,
compared with 86 per cent of 15-17 year olds.18 Using the UK as an example, research
estimates that one in three children (aged 5-15) has their own tablet; 43 per cent use it to go
online; 71 per cent of 12-15 year olds are on social media and 43 per cent of parents feel their
children know more about the internet than they do.19
Technology brings inestimable benefits to child education and development. However, it can
also expose children to sophisticated advertising strategies, from which their parents may
lack the insight to protect them. It appears that children find it more difficult to identify
advertisements on websites than traditional media,20 especially where ‘stealth’ marketing
results in advertisements being difficult to distinguish from editorial content. Multiple
platforms allow companies to take a cross-media approach whereby children are targeted
with the same message through different media, making it difficult to identify the impact of a
single medium.21 Due to its interactive nature, digital marketing may also tap into emotional
or unconscious choices,22 allowing more engagement than traditional media.23 By using
cookies, marketers are able to gather data on user preferences and thereby suit advertisements
to the unique user.24
Marketing to children can be considered unethical since, depending on their age and maturity,
children cannot understand the intention of commercial communications. Therefore, some
states set age limits at which companies may target children, with 12 years sometimes
suggested as a suitable minimum age.25 However, children differ in their stages of
development and, consequently, their ability to discern the intentions of advertisements.26
Without an adequate understanding of the aim of an advertisement, children may be unable to
‘Internet Advertising Revenue Half-Year Report’ Interactive Advertising Bureau, 2014 available at
http://www.iab.net/research/industry_data_and_landscape/adrevenuereport#sthash.EbeFn8GB.dpuf (accessed
19 December 2014).
17
Cairns G et al ‘Systematic reviews of the evidence on the nature, extent and effects of food marketing to
children’ (2013) Appetite.
18
Flash Eurobarometer upon the request of Directorate General Information Society and Media Towards a Safer
Use of the Internet for Children in the EU – A Parents’ Perspective Analytical Report (2008).
19
Ofcom Children and Parents: Media Use and Attitudes Report 2014 (2014).
20
Mallinckrodt V & Mizerski D ‘The effects of playing an advergame on young children’s perceptions,
preferences, and requests’ (2007) 36 Journal of Advertising 87.
21
Advertising Education Forum Digital Marketing and Advertising to Children: A Literature Review (2012).
22
Center for Digital Democracy Food marketing in the digital age: a conceptual framework and agenda for
research (2011) .
23
Bailey R et al ‘How avatar customizability affects children’s arousal and subjective presence during junk
food-sponsored online video games’ (2009) 12 Cyberpsychology & behavior 277.
24
‘What is a cookie?’ All About Cookies available at http://www.allaboutcookies.org/cookies/ (accessed 8 June
2015).
25
Ali M et al ‘Young children’s ability to recognize advertisements in web page designs’ (2009) 27 The British
journal of developmental psychology 71.
26
Kunkel D ‘Commentary mismeasurement of children’s understanding of the persuasive intent of advertising’
(2010) 4 Journal of Children and Media 109.
16
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evaluate it in the same manner as an adult.27 For example, Roedder John suggests that it is
only in the reflective stage (age 11-16) that children are able to understand the persuasive
intent of marketing as they grasp abstract ideas and question what they are told. 28 On the
other hand, Rozendaal argues that there is insufficient evidence that once children understand
advertising, they will not be impacted.29 In the light of this, without regulation companies
may take advantage of children’s credulity and inexperience.
By contrast, some dispute the effect of marketing generally, as well as the evidence linking
obesity and food marketing, arguing that the regulation of marketing is premature in the
absence of more compelling evidence.30 This position is supported by the fact that it is
difficult to isolate individual causal factors in relation to obesity, given its multifaceted
nature. However, due to rising concern about childhood obesity levels, the HFSS food
industry is increasingly declaring itself open to reforming its approach to children through
self-regulation.31
3 International Child Rights
3.1 The Rights to Health and Food under the CRC
In terms of the CRC, parents/guardians are under the primary obligation to ensure their
children’s health and development.32 Secondary to this, the state shall assist and provide
facilities and services.33 Thus, the CRC recognises that some factors are beyond parental
control and means, and requires States Parties to pursue the implementation of children’s
rights through ‘all appropriate legislative, administrative and other measures’.34 In the case of
economic, social and cultural rights, such as the rights to food and health, states shall do so
‘to the maximum extent of their available resources and in the framework of international cooperation’.35 The UNCRC Committee has interpreted state obligations for socioeconomic
rights to include the concept of progressive realisation in the International Covenant on
Economic, Social and Cultural Rights (ICESCR),36 although there is some opposition to this
approach.37 The approach considers all states to have basic obligations to respect, protect and
27
Advertising Education Forum Digital Marketing and Advertising to Children: A Literature Review (2012) 45.
Roedder John D ‘Consumer socialization of children: a retrospective look at twenty‐five years of research’
(1999) 26 Journal of Consumer Research 183.
29
Rozendaal E et al ‘Reconsidering advertising literacy as a defense against advertising effects’ (2011) 14
Media Psychology 333 .
30
Brownell KD et al ‘Personal responsibility and obesity: a constructive approach to a controversial issue’
(2010) 29 Health affairs 378.
31
Hawkes C ‘Self-regulation of food advertising: what it can, could and cannot do to discourage unhealthy
eating habits among children’ (2005) 30 Nutrition Bulletin 374.
32
Article 18(1), 27(2) UNCRC.
33
Article 18(2) UNCRC.
34
Article 4 UNCRC.
35
Article 4 UNCRC.
36
UNCRC Committee General Comment No 5 (2003) ‘The General Measures of Implementation of the
Convention’ (CRC/GC/2003/5).
37
Nolan A ‘Economic and social rights, budgets and the Convention on the Rights of the Child’ (2013) 21
International Journal of Children’s Rights 248.
28
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fulfil rights, although the more resources a state has, the weightier its obligations become.38
According to the ICESCR Committee, states must take steps that are ‘deliberate, concrete and
targeted as clearly as possible towards meeting the obligations’.39 Finally, a third-tier
obligation rests on the international community to assist states that are unable to fulfil their
duties.
The UNCRC Committee consists of 18 independent experts who are mandated to examine
States Parties’ progress in realising their obligations under the CRC.40 States submit reports
(within two years of ratification and every five years thereafter) outlining factors and
difficulties affecting the fulfilment of the rights found in the CRC.41 Non-compliance with
periodic reporting lacks a sanction and is therefore a weak form of enforcement. However,
the UNCRC Committee issues state-specific recommendations, called Concluding
Observations, on the basis of its examination of the report and data from civil society and UN
agencies. Although the recommendations are non-binding, it is submitted that the State under
review should give serious consideration to them in the light of the obligation to fulfil
international treaties in good faith.42 Similarly, General Comments are non-binding, non-state
specific pronouncements that outline all States Parties’ obligations under the relevant
convention.43 They are widely viewed as an authoritative interpretation of obligations.44
General Comments approach treaty obligations holistically – they go beyond merely
outlining the normative content of rights and recommend a wide spectrum of action, from
enshrining concepts in legislation to recommending state-led action plans.
Under the right to health, State Parties shall take appropriate measures ‘to combat disease’.45
The right to food is a component of the right to health and an adequate standard of living
under the UNCRC and the ICESCR.46 In its General Comment on the right to health, the
UNCRC Committee placed particular emphasis on the need to regulate the marketing of ‘fast
foods’ and drinks to prevent obesity.47 In relation to periodic reporting, the UNCRC
Committee has requested that States Parties provide details of their efforts to tackle both
communicable and non-communicable diseases.48 In its Concluding Observations, The
38
See, for example, The Maastricht Guidelines on Violation of Economic, Social and Cultural Rights (1997);
ICESCR Committee, General Comment No 12 (1999) ‘The Right to Adequate Food’ (E/C.12/1999/5).
39
Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3, The Nature of
States Parties’ Obligations (art. 2, para 1), UN Doc. No. E/1991/23 (1990) para 2.
40
Article 43 UNCRC.
41
Article 44 UNCRC.
42
Article 26 Vienna Convention on the Laws of Treaties, 1969 (1969) 8 ILM 679; O’Flaherty M ‘The
Concluding Observations of United Nations Human Rights Treaty bodies’ (2006) 6 Human Rights Law Review
27.
43
Article 45(d) UNCRC.
44
Ando N ‘General Comments/ Recommendations’ (Max Planck Encyclopedia of Public International Law,
2010) available at http://ilmc.univie.ac.at/uploads/media/general_comments_recommendations_empil.pdf.
45
Article 24(c) UNCRC.
46
Article 24(2) UNCRC; Article 27 UNCRC; Article 11 ICESCR.
47
UNCRC Committee General Comment No 15 (2013) ‘The right of the child to the enjoyment of the highest
attainable standard of health (art. 24)’ (CRC/C/GC/15).
48
UNCRC Committee General Comment (2010) ‘Treaty-specific guidelines regarding the form and content of
periodic reports to be submitted by States parties under article 44, paragraph 1 (b), of the Convention on the
Rights of the Child’ (CRC/C/58/Rev.2).
5
UNCRC Committee has made recommendations regarding childhood obesity levels in
eighteen states.49 Most of these Observations merely draw attention to childhood obesity
without offering detailed guidance on strategies to address the issue through child rights. For
example, in its 2011 recommendations to Finland, the UNCRC Committee expressed concern
at the lack of regulation of unhealthful foods to children, but did not go so far as to
recommend Finland introduce regulation.50 The UNCRC Committee was more decisive when
addressing Denmark, advising it to ‘strengthen its efforts to combat obesity among children
and adolescents’, in particular through engagement with ‘the mass media and the food
industry to ensure their contribution to healthy lifestyles and consumption patterns by
children and adolescents’.51 Thus, although the UNCRC Committee is aware of concern
regarding HFSS marketing to children, it does not appear to be addressing the issue
consistently, at least in the case of EU member states. Furthermore, the UNCRC Committee
approached obesity from the perspective of health and did not address the right to food in any
of the Concluding Observations examined.
Looking beyond the UNCRC, the Special Rapporteurs on the Right to Health and Food, as
the ‘eyes and ears’ of the Human Rights Council, may fill gaps and further elucidate
obligations from a wider perspective.52 The Special Rapporteurs’ mandates stem from the
Human Rights Council and thus relate to all UN Member States, not only parties to specific
human rights treaties. Special Rapporteurs serve in advisory capacities, tracking and
reporting issues affecting the fulfilment of the rights in question and making
recommendations to the Human Rights Council.53 As their scope is much narrower than
treaty bodies (which examine state progress in a number of areas), Special Rapporteurs have
the opportunity to analyse specific rights or situations in greater detail. Furthermore, they are
less politically constrained than the UN Committees.54
The Special Rapporteurs’ precise mandates have resulted in their being more vocal in
bringing attention to food marketing to children from a rights standpoint. In his annual report
on the right to health, the Special Rapporteur on the Right to Health highlighted the link
between an unhealthful diet, obesity and non-communicable diseases. He added that states
have a positive duty, under their obligation to protect, to regulate marketing of unhealthful
foods. Collaboration between industry and government was recommended as an alternative to
49
UNCRC Committee, Concluding Observations, Armenia (2013); Austria (2012); Belgium (2010); Chile
(2007); China (2005); Cuba (2011); Denmark (2005 & 2011); Iceland (2012); Malta (2000); Mexico (2006);
Palau (2001); Saint Vincent and the Grenadines (2002); San Marino (2003); Saint Lucia (2014); Saudi Arabia
(2006); Slovenia (2013)); Spain (2010); and Sweden (2009).
50
UNCRC Committee, UN Committee on the Rights of the Child: Concluding Observations, Finland, 2011,
CRC/C/FIN/4 para 23.
51
UNCRC Committee UN Committee on the Rights of the Child: Concluding Observations, Denmark, 2011,
CRC/C/DNK/4.
52
Subedi SP ‘Protection of Human Rights through the Mechanism of UN Special Rapporteurs’ (2011) 33
Human Rights Quarterly 201 204.
53
UN Human Rights Committee The right of everyone to the enjoyment of the highest attainable standard of
physical and mental health Human Rights Resolution 2005/24; Mandate of the Special Rapporteur on the right
to food, Human Rights Council Resolution 6/2 (27 September 2007).
54
Subedi SP ‘Protection of human rights through the mechanism of UN Special Rapporteurs’ 201-9.
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self-regulation.55 The former Special Rapporteur on the Right to Food has been particularly
outspoken in designating obesity as a rights concern. In a non-binding report to the Human
Rights Council, he called on states to adopt statutory regulation on the marketing of HFSS
food to children in line with the recommendations of the WHO.56
3.2 Rights-Based Approaches
While there is no agreed ‘rights-based approach’, Tobin suggests interdependence and
indivisibility, accountability and universality as three guiding principles.57 A child rights
approach utilises both the provisions and general principles of the UNCRC: nondiscrimination, the right to life and development, the best interests of the child and the right
to participation.58 These principles can be applied to ‘analyse governmental progress
toward[s] implementation’ of rights59 as they provide ‘the normative framework to guide the
design, implementation and evaluation of health care and related policies by identifying the
entitlements to which all children are eligible by virtue of their status as human beings’.60
Therefore, the CRC can serve as an ‘auditing tool whereby its standards are used to children’s
rights-proof law and policy at domestic level’.61
A registered charity made up of leading obesity professionals (the International Obesity
Taskforce, or IOTF, now called World Obesity Federation) drafted the only expressly ‘rightsbased’ guidelines on regulating food marketing to children.62 The ‘Sydney Principles’
recommend that states protect children from food marketing as an inherent form of
commercial exploitation, in the light of the rights to food and ‘freedom from obesity’ under
the CRC.63 Seven principles are recommended when introducing measures to reduce
commercial promotion. The first is that initiatives support the rights of the child, meaning
that regulations align and support the CRC and the Rome Declaration on the Right to Food.
The Principles do not outline in further detail what this approach requires or how it may be
achieved, but the main elements are that guidelines should be statutory in nature, contain a
wide definition of commercial promotions and be evaluated, monitored and enforced. The
IOTF received 220 submissions, including several from the food industry and health
55
UN Human Rights Council Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of
the Highest Attainable Standard of Physical and Mental Health 1 April 2014 (A/HRC/26/31).
56
UN Human Rights Council Report of the Special Rapporteur on the right to food (2011) (A/HRC/19/59).
57
Tobin J ‘Beyond the supermarket shelf: using a rights based approach to address children’s health needs’
(2006) 14 The International Journal of Children’s Rights 275 281-5.
58
UNCRC Committee, Report on the second session, UN Doc No CRC/C/10 (1992) para 67.
59
Tarantola D & Gruskin S ‘Children confronting HIV/AIDS: charting the confluence of rights and health’ in
Gruskin S et al (eds) Perspectives on Health and Human Rights (2005) 229.
60
Tobin J ‘Beyond the supermarket shelf: using a rights based approach to address children’s health needs’ 275
278.
61
Lundy L & Kilkelly U ‘Children’s rights in action: using the UN Convention on the Rights of the Child as an
auditing tool’ (2006) 18 Child and Family Law Quarterly 331-2.
62
‘Who we are’ available at http://www.worldobesity.org/who-we-are/ (accessed 8 June 2015).
63
IOTF Guiding principles for achieving a substantial level of protection for children against the commercial
promotion of foods and beverages (2007).
7
professionals, reflecting widespread support for a rights-based approach. The only opposition
recorded was the food and advertising industries’ objection to statutory regulation.64
The Principles demonstrate an early recognition of the untapped potential of the CRC in the
regulation of marketing to children, which could serve to frame regulation as the state’s
obligation and not a policy option. However, the rights-based approach should have been
more clearly explained, for example by highlighting the guiding principles of the CRC, and
accountability, universality and interdependence, as a lens to examine the state’s obligations.
3.3 The WHO Marketing Guidelines
Despite the Principles outlined, there is little evidence to date of convergence between
international rights and international health systems in food marketing to children. As the
WHO’s central objective is the ‘attainment by all peoples of the highest possible level of
health’, unsurprisingly it has been instrumental in calling on states to address childhood
obesity.65 In 2010 the WHO issued recommendations to guide WHO Member States in the
restriction of marketing to children. Concerned by the lack of clear goals in Member States’
policies, it recommended that the policy aim should be to diminish the impact on children of
marketing foods high in saturated fats, trans-fatty acids, free sugars, or salt; moreover, the
overall policy objective should be to lessen the exposure of children to the marketing power
of these foods. Using this approach, states should design regulations or polices that not only
reduce the quantity and intensity of advertisements, but also tackle the effect of such
marketing on children. Therefore, the success of measures cannot be measured simply by a
reduction of advertising; it must also be shown that children actually view less advertising
and are less coerced.
The WHO Guidelines call on states to act as core stakeholders, cooperate to reduce the
impact of cross-border marketing, specify enforcement mechanisms, establish
implementation and monitor compliance in line with objectives.66 Thus, they aim for
transparent and effective state-led action to ensure the key child rights principles, such as
accountability and best interests. However, the Guidelines are non-binding and not expressly
rights-based. As the WHO Constitution enshrines the right to health and aims to integrate a
right-to-health approach, the WHO could have anchored the Guidelines in rights as a means
to highlight states’ legal obligations.67 Going forward, the UNCRC Committee could address
this oversight by drawing Member States’ attention to the Guidelines and connecting them
with the provisions and principles of the UNCRC, as it has done in relation to the WHO
International Code on Marketing of Breast Milk Substitutes.68
4 Regulatory and Non-Regulatory Responses
Swinburn B et al ‘The ‘Sydney Principles’ for reducing the commercial promotion of foods and beverages to
children’ (2008).
65
Constitution of the World Health Organization 1948, Article 2; WHO Interim Report of the Commission on
Ending Childhood Obesity (2015).
66
World Health Organization Set of Recommendations on the Marketing of foods and non-alcoholic beverages
to children (2010).
67
‘The Right to Health’ 2013 available at http://www.who.int/mediacentre/factsheets/fs323/en/ (accessed 8 June
2015).
68
World Health Organization International Code of Marketing of Breast-Milk Substitutes (1981).
64
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4.1 European Union Involvement in Food Marketing to Children
The EU has devised an Action Plan on Childhood Obesity which aims to demonstrate states’
‘shared commitment’ to addressing childhood obesity, set priorities, and propose monitoring
mechanisms. Citing the WHO’s research, the Plan states that it is necessary to address
marketing to children in order to address obesity.69 Although the EU is not bound by the CRC
or ICESCR, it has adopted a child rights perspective. Under article 24 of the EU Charter on
Fundamental Rights, children are entitled to special protection and care and to have their best
interests judged as a primary consideration.70 Thus, there is some convergence between the
EU’s child rights approach and the CRC, although the former is more limited in scope.
Furthermore, as public health is a supporting competence, the EU’s latitude is restricted.
Under the Audiovisual Media Services Directive (AMSD), audiovisual commercial
communications ‘shall not cause physical or moral detriment to minors’. 71 Such
communications must not directly encourage minors (or encourage them to convince their
parents or others) to buy or hire a product or service by ‘exploiting their inexperience or
credulity’.72 Additionally, product placement to children is prohibited.73 Thus, there is some,
albeit limited, recognition of children’s increased susceptibility to marketing and lower
capacity to identify advertisements. The Directive also recognises the potentially harmful role
of HFSS food marketing, but avoids requiring a regulatory approach. Rather, it proposes that
states must encourage media service providers to develop advertising codes for HFSS food
and beverages during or with children’s programmes.74 This loose obligation echoes article
17 of the CRC, which calls on States Parties to encourage the media to develop appropriate
guidelines. Minimal responsibility is placed on the state, and instead it must only engage with
the media. This system seems to contradict the child rights approach which emphasises
accountability, the right to development and best interests.
Individual states can adopt more stringent national measures as long as they do not breach
cross-border rules. The Directive merely harmonises the law, requiring implementation at
national level. From a rights perspective, different laws in EU member states may have the
result that states which are more economically dependent than others on advertising adopt
weaker regulations for fear that companies will move to more favourable locations. Some
also argue that advertising bans may impact on the quality of children’s programmes. 75 This
effect warrants further study in the light of the right of the child to access information.
69
European Commission European Union Action Plan on Childhood Obesity 2014-2020 (2014).
European Union, Charter of Fundamental Rights of the European Union, 26 October 2012, 2012/C 326/02.
71
Audiovisuals covers ‘mass media in their function to inform, entertain and educate the general public, and
should include audiovisual’ (preamble para 22).
72
Directive 2010/13/EU of the European Council and the European Parliament of 10 March 2010 on the
coordination of certain provisions laid down by law, regulation or administrative action in Member States
concerning the provision of audiovisual media services OJ L 95-1 (Audiovisual Media Services Directive),
Article 9(1)(g).
73
Audiovisual Media Services Directive Article 11(2).
74
Audiovisual Media Services Directive Article 9(2).
75
Kang JH ‘Barbie banished from the small screen: the proposed European ban on children’s television
advertising’ (2000-2001) 21 Northwestern Journal of International Law and Business 543.
70
9
However, the EU’s tempered approach is unsurprising, given that the majority of EU member
states have adopted self-regulatory models.76 Unconvinced that evidence establishes a
significant link between marketing and adiposity, governments allow the industry to regulate
and monitor itself, placing responsibility for health in the realm of businesses, whose intrinsic
interest is in profit, not health. There are a number of voluntary initiatives by food and
beverage companies, including the EU Pledge.77 While self-regulation is flexible and
therefore more able to keep up with technology, for Spain78 and Germany,79 assessments of
such self-regulatory systems have shown a failure to reduce the intensity of marketing.
Research in the United States suggests that, although companies meet their pledges, this does
little to change children’s exposure to food marketing as not all food marketers participate
and the industry sets low benchmarks for what constitutes healthy food. 80 States should fulfil
their duty to protect children’s health, and not transfer responsibility to others. If selfregulation is to be used, it should be transparent, set meaningful objectives and benchmarks,
be accountable with objective evaluation and subject to oversight.81
4.2 Regulation of Marketing in the United Kingdom
The United Kingdom (UK) has a high rate of childhood obesity and for this reason has
adopted detailed statutory and non-statutory marketing regulations. Under the
Communications Act 2003 (as amended) Ofcom is tasked with reviewing standards codes,
one of the aims of which is to protect those aged under 18. Ofcom does so in the light of a
risk-based model which assesses the degree of harm likely to result due to the composition of
the audience. Advertisements are independently monitored, as are complaints from the
public.82 Under the UK Code of Broadcast Advertising, television advertisements for HFSS
foods cannot be made during, before or after programmes intended for, or of particular
interest to, child viewers.83 Food is defined as HFSS through the Food Standards Agency
Nutrient Profiling Model (NPM). Television advertising directed at children (aged under 16)
must not include product placement, celebrity sponsorship, health/nutritional claims, ‘pester
power’ messages or licensed characters. The aim of the regulation is to reduce the exposure
of children to HFSS advertising, thus incorporating one of the WHO’s policy aims.84
Hawkes C ‘Self-regulation of food advertising: what it can, could and cannot do to discourage unhealthy
eating habits among children’ 374.
77
The EU Pledge (2014) available at http://www.eu-pledge.eu.
78
Romero-Fernandez MM et al ‘Compliance with self-regulation of television food and beverage advertising
aimed at children in Spain’ (2010) 13 Public health nutrition 1013.
79
Effertz T & Wilcke AC ‘Do television food commercials target children in Germany?’ (2012) 15 Public
health nutrition 1466.
80
Kunkel DL et al ‘Evaluating industry self-regulation of food marketing to children’ American journal of
preventive medicine.
81
Sharma LL et al ‘The food industry and self-regulation: standards to promote success and to avoid public
health failures’ (2010) 100 American Journal of Public Health.
82
‘Monitoring ads’ Advertising Standards Authority available at http://www.asa.org.uk/Consumers/Monitoringads.aspx (accessed 19 December 2014).
83
Committee on Advertising Practice The UK Code of Broadcast Advertising (2010).
84
Television advertising of food and drink products to children – Final statement (2007), para 1.9.
76
10
Ofcom’s 2010 review estimated that children are exposed to 37 per cent less television
advertising for HFSS food than before the ban.85 On the other hand, a survey from Newcastle
University provided data indicating that children are actually exposed to a similar level of
advertising because they do not watch only ‘children’s programmes’.86 The regulations apply
to programmes aimed at children, which do not include ‘family’ shows such as the XFactor,
which has at least 5.8 million UK viewers.87 Furthermore, while advertisers may not use
licensed characters, brand equity characters are permitted. However, brand characters have
been shown to increase the desirability of products.88 Similarly, free toys are not restricted,
although they impact on meal selection.89
Finally, the rules focus on ‘traditional’ media and do not apply to digital media. For instance,
advergames (online games which integrate advertising) appear to influence children’s food
preferences.90 Yet such ‘new’ technologies are left to separate self-regulatory codes, which
seems insufficient from a rights perspective as this approach has been deemed inadequate for
television broadcasting. Non-traditional media codes are devised by the Committee of
Advertising Practice (CAP), an organisation comprising representatives of the industry, and
do not have force of law. The sanctions available to CAP include preventing an
advertisement from being repeated, the power to name and shame, to advise media not to
host, to revoke privileges or require persistent non-compliers to be pre-vetted before
advertising.91 Such measures are insufficient from an accountability perspective.
Self-regulation is a source of concern because, in spite of industry pledges, new media such
as advergames are still used to market sugary foods to children.92 One study found that 70 per
cent of the top ten most popular children’s websites in the United States (where advertising is
self-regulated) marketed food that was of low nutritional value.93 Furthermore, Emani and
Lobstein report a sharp division in the assessments of initiatives to limit advertising of food
and drinks to children. According to the authors, scientific, peer-reviewed papers continue to
show that there is a high level of ‘unhealthy’ food advertising, whereas industry-sponsored
reports claim a high level of observance to voluntary codes.94 Thus, although regulation in the
85
Ofcom HFSS Advertising Restrictions - Final Review (2010).
Adams J et al ‘Effect of restrictions on television food advertising to children on exposure to advertisements
for ‘less healthy’ foods: repeat cross-sectional study’ (2012) 7 PLoS ONE.
87
‘Strictly Come Dancing beats X Factor in ratings battle’ BBC 27 September 2014 available at
http://www.bbc.com/news/entertainment-arts-29392694 (accessed 19 December 2014).
88
De Droog SM et al ‘Using brand characters to promote young children’s liking of and purchase requests for
fruit’ (2010) 16 Journal of Health Communication: International Perspectives 78.
89
Hobin EP et al ‘The Happy Meal(R) effect: the impact of toy premiums on healthy eating among children in
Ontario, Canada’ (2012) 103 Canadian journal of public health 244.
90
Pempek TA & Calvert SL ‘Tipping the balance: use of advergames to promote consumption of nutritious
foods and beverages by low-income African American children’ (2009) 163 Archives of pediatrics & adolescent
medicine 633.
91
The Committee of Advertising Practice The UK Code of Non-broadcast Advertising, Sales Promotion and
Direct Marketing (2014).
92
Cheyne AD et al ‘Marketing sugary cereals to children in the digital age: a content analysis of 17 childtargeted websites’ (2013) 18 Journal of health communication 563.
93
Alvy LM & Calvert SL ‘Food marketing on popular children’s web sites: a content analysis’ (2008) 108
Journal of the American Dietetic Association 710.
94
Galbraith-Emami S & Lobstein T ‘The impact of initiatives to limit the advertising of food and beverage
products to children: a systematic review’ (2013) 14 Obesity Reviews 960.
86
11
UK is remarkably stringent compared to other jurisdictions, gaps remain which leave children
exposed to advertising that has been identified as contrary to their best interests.
4.3 The Swedish Approach
In the 1990s Sweden adopted a rights-based approach to all marketing, whereby television
advertising may not be ‘designed to attract the attention of children under 12 years of age’. 95
No advertising is permitted during, immediately before or after a children’s programme,
which is ‘a programme that is primarily addressed to children under twelve years of age’.96
Equally, characters or individuals prominently featured in children’s programmes may not
appear in commercial television advertising. Such advertisements are considered unfair and
can be subject to a fine under the Marketing Act.97 Furthermore, the broadcaster’s licence
may be revoked where it has ‘materially contravened’ the section.98
Although the ban was hailed as a victory for child rights, it is not as strict as has been
assumed.99 Outside of children’s viewing times, an advertisement must be directed at children
to be banned, and children’s music, voices and cartoons are not permitted to attract their
attention.100 However, the mere fact that a product is of interest to a child is insufficient. For
instance, television advertising for the video ‘Cinderella’ was legitimate, as it was not
specifically designed to appeal to children or broadcast at a time with a particularly high level
of child viewers.101 Likewise, an advertisement by an ice-cream company showing two clay
penguins looking enviously at another walking by with an ice-cream was not within the scope
of the ban. The court stated that the use of clay figures did not in itself mean that the
advertisement was directed at children. The advertisement could appeal to families generally,
as it was not connected with typical children’s programming time.102 Therefore, similar to the
UK experience, family advertising is legal.103 The ban is outdated, and digital media in
Sweden, as in the UK, is subject to self-regulatory codes. Furthermore, country-of-origin
rules apply, with the result that the ban applies only to Swedish-based broadcasters.104 The
two major commercial children’s channels broadcasting to Sweden are based in the UK and
escaped the prohibition (although they are now subject to UK rules). However, since 2010, if
95
Chapter 8, Section 7, Radio and Television Act (RTA)(2010:696).
Chapter 8, Section 3 (RTA).
97
Chapter 17, Section 9 (RTA).
98
Chapter 18, Section 2.1 (RTA).
99
‘Advertising ban won’t stop “brand bullying”, says childhood expert’ 2011 available at
http://www.independent.co.uk/news/media/advertising/advertising-ban-wont-stop-brand-bullying-sayschildhood-expert-2354917.html (accessed 10 June 2015).
100
Shave MA & Soontae A (eds) The Global Advertising Regulation Handbook (2014) 104.
101
Konsumentombudsmannen v Buena Vista Home Entertainment AB og TV4 AB Marknadsdomstolen 2001:5
Dnr B 1/99 13 March 2001 available at
http://www.marknadsdomstolen.se/Filer/Avg%C3%B6randen/Dom01.5.PDF (in Swedish). My thanks go to
Katarina Hyltén-Cavallius for providing these translations.
102
Konsumentombudsmannen (KO) v Hemglass Sverige Marknadsdomstolen 2002:31 Dnr B 6/01 10 December
2002, available at http://www.marknadsdomstolen.se/Filer/Avg%C3%B6randen/Dom02.31.pdf (in Swedish).
103
Harrabin R ‘A commercial break for parents: Sweden wants children’s TV advertising banned across the EC’
8 September 1998, available at http://www.independent.co.uk/arts-entertainment/a-commercial-break-forparents-1196811.html (accessed 9 January 2015).
104
(Joined Cases C-34-36/95) Konsumentombudsmannen (KO) v De Agostini (Svenska) Forlag AB and TVShop
Sverige AB [1997] ECR I-3843.
96
12
a TV broadcaster wholly or primarily directed to Sweden, established in another EEA state,
transmits advertising directed at children, the regulatory authority in Sweden may contact
the relevant authority in the other state and request that they comply.105 If the broadcaster
fails to, and in the event that he has established himself in order to avoid the stricter rules,
the authority may take action after notifying the Commission and relevant EU Member
Finally, it has been shown that children in Sweden are exposed to similarly high
levels of advertising for HFSS foods.107 Therefore, it is suggested that without a more
comprehensive response, effective protection of children from harmful marketing is
unattainable. If businesses are not held accountable for their digital marketing practices,
children will continue to be exposed to media that is contrary to their best interests and rights.
State.
106
5 Recommendations
5.1 Increasing the Role of the UNCRC Committee
Under the CRC, all states must progressively realise the rights to health and food. In order to
harness both the CRC and the UNCRC Committee’s potential to guide states in ensuring the
highest attainable standard of health and adequate food, the UNCRC Committee should
interpret standards more creatively for developed states and recommend clear measures that
take account of risks to health beyond the core minimum. Despite its General Comment and
the high levels of childhood obesity, the UNCRC Committee has not consistently brought
attention to marketing as an area of concern, nor requested states to provide information on
marketing regulations. If civil society were to mobilise as it did against tobacco marketing, it
could play an instrumental role.108 It is vital for the success and legitimacy of the CRC that its
Committee, while encouraging the provision of digital space that offers opportunities to play
and learn,109 take a proactive approach to technology that places the best interests of the child
at risk.
The UNCRC Committee should take into account the WHO Guidelines and Sydney
Principles and highlight best practice. A greater convergence between the CRC and WHO
bodies could strengthen protection and further the WHO’s mandate to mainstream the right to
health. The UNCRC Committee has drawn attention more consistently to WHO breastfeeding
guidelines, while (thus far) side-lining the marketing guidelines. The UNCRC Committee is
in the unique position (through periodic reporting) of being able to request that states provide
details of their regulations regarding food marketing to children, which could allow for better
collation of data and marketing regulations. It is clear from the experiences of the EU,
Sweden and UK that marketing is a complex issue which is not easily addressed, even
through national regulation. Therefore, it is recommended that the UNCRC Committee
pursue targeted, clear recommendations with consistent follow-up, while emphasising the
105
CH 16:15.
Ch 16:15.
107
Kelly et al ‘Television food advertising to children: a global perspective’ (2010) 100 Am J Public Health
1730.
108
Huang TTK et al ‘Mobilisation of public support for policy actions to prevent obesity’ The Lancet.
109
Human Rights Council, The right of the child to engage in play and recreational activities (2014)
(A/HRC/27/L.28).
106
13
elements of a rights-based approach. For instance, the UNCRC Committee could call for a
broadening of the definition of a child under marketing rules in the light of the best interests
of the child. Evidence suggests that the impact of marketing on young children may not be as
different and that adolescents may be more influenced than was earlier believed. 110 The
UNCRC Committee should also highlight the need for accountability through effective
sanctions and remedies where marketing codes are breached.
5.2 An Alternative Approach
While the UNCRC Committee (and other commentators) has dealt with marketing to children
predominantly under the rubric of the right to health, it could approach the topic from the
perspective of protection of children from exploitation. Under article 36 of the CRC, children
are afforded wide protection from commercial exploitation. This raises interesting questions.
For example, it is sometimes suggested that the marketing techniques adopted by HFSS
advertisers should be used to boost consumption of fruit and vegetables.111 If this were done,
and the techniques characterised at the same time as inherently exploitative, would it imply
that exploitation is acceptable if it is in children’s best interests?112
In 2013 the UNCRC Committee issued General Comment No. 16 on state obligations
regarding the impact of the business sector on children’s rights. It noted that ‘the marketing to
children of products such as cigarettes and alcohol as well as foods and drinks high in
saturated fats, trans-fatty acids, sugar, salt or additives can have a long-term impact on their
health’.113 It called for effective monitoring and regulating of advertising and marketing to
children. Although the UNCRC Committee drew specific attention to the WHO Framework
Convention on Tobacco Control and the International Code on Breast-milk Substitutes, it did
not mention the WHO marketing guidelines.114 Furthermore, the significance of article 17 of
the CRC, which requires States Parties to encourage media to develop codes to protect
children from harm, remains under-explored. It is submitted that any regulation of access to
media must be the least injurious to the child’s participation rights, such as the right to play
and express and form opinions.
6 Conclusion
In view of the worldwide propagation of food marketing to children and high rates of
childhood obesity, it has been argued that states are under an obligation to protect children
from harmful marketing, ideally through regulatory responses. A child rights approach
assesses the basis and content of regulations through a number of principles. These include
universality, accountability, interdependence and indivisibility, best interests, the right to life
Carter O et al ‘Children’s understanding of the selling versus persuasive intent of junk food advertising:
implications for regulation’ (2011) 72 Social science & medicine 962; Harris JL et al ‘The food marketing
defense model: integrating psychological research to protect youth and inform public policy’ (2009) 3 Social
issues and policy review 211.
111
Cicchirillo V Stop playing with your food: a comparison of for-profit and non-profit food-related advergames
(2011).
112
Linn S & Novosat CL ‘Calories for sale: food marketing to children in the twenty-first century’ 133.
113
UNCRC Committee General Comment No 16 (2013) ‘State obligations regarding the impact of the business
sector on children’s rights’ (CRC/C/GC/16) para 19.
114
General Comment No 16 (2013) para 57.
110
14
and development, participation and non-discrimination. Furthermore, food marketing can be
examined through the lens of the right to health and food. It has been suggested that there is
scope to limit marketing by adopting the perspective of protecting children from exploitation.
It is proposed that the UNCRC Committee, as the body responsible for monitoring and
evaluating state compliance with the central child rights treaty, adopt a more proactive role.
The UNCRC Committee should give regard to the WHO marketing guidelines, as well as
existing regulations in the EU, UK and Sweden. A global regulatory response to food
marketing is a key step to protecting children’s rights and best interests as well as ensuring
accountability.
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