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Food Advertising and Obesity Prevention: What Role for the European Union?

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Abstract

When the Television Without Frontiers Directive (TVWF Directive) was first adopted in 1989, there was very little discussion on how food advertising should be regulated at Community level. However, things have changed as a result of rising levels of obesity in all EU Member States. Consequently, several stakeholders have suggested that the advertising of unhealthy food to children should be restricted. This article analyses whether and how, bearing the obesity epidemic in mind, the European Union could regulate the marketing of food high in fat, sugar and salt to children (HFSS food). It starts by presenting the evidence supporting such regulation. It then focuses on the contribution which the TVWF Directive and the Audiovisual Media Services Directive (AVMS Directive) could make to the debate. It finally looks at the broader regulatory framework by discussing their relationship with other instruments of Community law relating to food advertising, and in particular the Unfair Commercial Practices Directive (UCP Directive) and the recently adopted Regulation on nutrition and health claims made on foods.

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Notes

  1. The primary measure of overweight and obesity is Body Mass Index (BMI). BMI is calculated as weight in kilograms divided by height in meters squared. Optimal BMI levels are generally believed to lie between 20 and 25. Persons with a BMI between 25 and 30 are considered overweight, and those with a BMI above 30 are obese.

  2. Legal intervention is all the more justified to curb the current trends, as income and obesity are negatively associated, particularly for women (Cutler et al. 2003; Poulain 2002).

  3. The EU set up a discussion forum relating to issues of nutrition, diet and physical activity in March 2005 (EU Platform for Action on Diet, Physical Activity and Health); further information is available at: http://ec.europa.eu/health/ph_determinants/life_style/nutrition/platform/platform_en.htm.

  4. It would arguably be useful to undertake similar research using a larger sample of children to reinforce these findings, though it would raise moral dilemmas to experiment on too large a scale.

  5. The association also advocates that the notion of children’s programmes should be redefined to take into account Ofcom’s findings that 71% of the time children spend watching television is outside the time specifically designed for children.

  6. See in particular the contributions to the Commission consultations of 2003 and 2005 of EHN, BEUC, NHF and Diabetes UK. European Commission, Consultations on the Amendment of the TVWF Directive, 2003 and 2005, respectively available at: http://ec.europa.eu/avpolicy/reg/tvwf/modernisation/consultation_2003/contributions/index_en.htm http://ec.europa.eu/avpolicy/reg/tvwf/modernisation/consultation_2005/contributions/index_en.htm.

  7. Amendment 119.

  8. On the contribution which self-regulation can make in the EU advertising sector, see the following report of some discussion among interested parties, July 2006: http://ec.europa.eu/consumers/overview/report_advertising_en.pdf.

  9. OJ 2003, C 321/1, at paragraph 22.

  10. Amendment 68 (emphasis contained in the original text).

  11. Article 3d(1)(f) of the consolidated proposal of the Commission of 24 May 2007 provides that “audiovisual commercial communications must not cause moral or physical detriment to minors. Therefore they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations” [Emphasis added]. See now Art 3e(1)(g) post-Directive 2007/65.

  12. See also Article I-3(3), second paragraph, of the Draft Constitutional Treaty: “[The Union] shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child” [Emphasis added].

  13. Case C-34/95 De Agostini [1997] ECR I-3843.

  14. The Act of 9 August 2004 on Public Health, as amended, introduced New Article L. 2133–1 of the Public Health Code, as implemented by secondary legislation (Décret 2007–263 of 27 February 2007 – NOR: SANP0720072D, and Arrêté of the same date, NOR:SANP0720073A). All these documents are available on the Légifrance website at http://www.legifrance.gouv.fr/.

  15. Details can be found on Ofcom’s website at: http://www.ofcom.org.uk/consult/condocs/foodads_new/.

  16. See, for example, BEUC, “Children and advertising – Summary of the BEUC/CB survey,” X/001/2000.

  17. Case C-376/98 Germany v Parliament and Council [2000] ECR I-8419; Case C-380/03 Germany v Parliament and Council [2006] ECR I-11573.

  18. Directive 2005/29/EC, OJ 2005 L 149/22.

  19. Article 2(e).

  20. Article 5(5).

  21. The Commission believes that by defining only what should be prohibited, the Directive thus leaves room for business to innovate in developing new, fair commercial practices.

  22. This is reflected in Article 5(3).

  23. Recital 9 of the Preamble.

  24. See in particular Case C-429/02 Bacardi France [2004] ECR I-6613.

  25. Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (OJ 1984 L 250, p. 17).

  26. Full harmonisation is also referred to as total, maximum, or exhaustive harmonisation.

  27. Recitals 11 to 15.

  28. No indication is given of what is meant by “approximated field.”

  29. Article 3(9).

  30. OJ 2000 L 109/29.

  31. In Joined Cases C-421/00, 426/00 and 16/01 Sterbenz and Haug [2003] ECR I-1065, the European Court of Justice noted that the Labelling Directive laid down “a specific provision intended to prevent fraud which must consequently be interpreted as a special rule in relation to the general provisions on protection against misleading advertising laid down in Directive 84/450 [...],” at paragraph 25. See also Case C-221/00 Commission v Austria [2003] ECR I-1007, at paragraph 43, and Case 99/01 Linhart and Biffl [2002] ECR I-9375, at paragraphs 19 and 20.

  32. Decision at first instance: Reclame Code Commissie, 10 June 2003, IER 2003/78; appeal: College van Beroep, 12 January 2005, IER 2005/32.

  33. Decision of 1st August 2003.

  34. OJ 2006 L 404/9.

  35. The need for regulation was reinforced by two further considerations. Firstly, cost-benefits analyses suggest that savings in health care costs are relatively greater than the costs incurred by labelling regulation. Secondly, the laws of the Member States relating to food claims varied greatly from on Member State to another, which made them potentially trade restrictive.

  36. Recitals 10 and 28 of Regulation 1924/2006.

  37. Article 3.

  38. Article 6. The burden of proof that a claim is scientifically justified rests with the food business operator.

  39. Article 5.

  40. Article 3.

  41. Article 8.

  42. Article 13.

  43. Article 14.

  44. Article 19.

  45. Article 4.

  46. Certain Member State authorities have already carried out extensive work on the question of nutrition profiling; see in particular the work of the FSA in the United Kingdom, on the basis of which Ofcom has relied to tighten controls of HFSS food advertising to children. For more information on the model developed by the FSA, see: http://www.food.gov.uk/healthiereating/advertisingtochildren/nutlab/.

  47. Article 21.

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  1. School of Law, European law at the University of Exeter, Amory Building, Rennes Drive, EX4 4RJ, Exeter, UK

    Amandine Garde

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  1. Amandine Garde
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Garde, A. Food Advertising and Obesity Prevention: What Role for the European Union?. J Consum Policy 31, 25–44 (2008). https://doi.org/10.1007/s10603-007-9061-2

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