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Focus: Aggressive regulation of consumer goods – is 'junk food' next?

6 June 2013

In brief: Governments and public health experts throughout Australia are turning their attention to the health impacts of excessive consumption of 'junk food'. Although the industry is currently subject to reasonably limited regulation, recent events both here and overseas suggest that the status quo may be under threat. Partner Peter O'Donahoo (view CV), Senior Associates Susie Stone and Tim Maxwell and Lawyer Mark Hosking report.

How does it affect you?

  • Calls for tougher regulation of both advertising and labelling of junk food (a term that is difficult to define – and thus prone to subjectivity – but is generally understood to mean high-calorie food that is low in nutritional value, including soft drinks) in Australia have been mounting since the National Preventative Health Taskforce released the National Preventative Health Strategy Roadmap for Action in June 2009.1
  • Tougher regulation of junk food advertising and labelling is currently supported by the Australian Greens, and by a number of public health agencies. Many of these agencies were among those that campaigned actively and successfully for advertising restrictions, warning labels and plain packaging for tobacco products.
  • While this article focuses on advertising and labelling of junk food, these issues must be viewed in the context of other government initiatives that are likely to affect junk food, the most obvious being pricing measures such as tax increases and minimum pricing.

Junk food advertising in Australia

The National Preventative Health Taskforce was established in April 2008 to provide the Federal Government with a blueprint for tackling obesity, tobacco and excessive consumption of alcohol. In June 2009, the Taskforce released the National Preventative Health Strategy Roadmap for Action, which included recommendations for increased regulation of both advertising and labelling of junk food.

In relation to advertising, the Taskforce recommended:

  • within four years, phasing out the marketing of 'energy-dense nutrient-poor' food and drink on television before 9pm;
  • phasing out premium offers, toys, competitions and the use of promotional characters, including celebrities and cartoon characters, to market 'energy-dense nutrient-poor' food and drink to children across all media sources; and
  • developing and adopting an appropriate set of definitions and criteria for determining 'energy-dense nutrient-poor' food and drink.

The Taskforce recommended that these measures be implemented in stages: monitoring and evaluating the effectiveness of a voluntary industry approach for the first three years; introducing a co-regulatory approach to address any identified shortfalls; and moving to legislation in the fourth year, if the voluntary and co-regulatory approaches proved ineffective.

In its formal response in May 2010, the Federal Government expressed the view that further regulation was unnecessary, citing a range of existing measures (such as the introduction of a dedicated children's television channel, and various voluntary industry initiatives addressing the marketing of food and beverages). However, the Government indicated that it would continue to monitor the issue.2

Since then, calls for tighter restrictions on junk food advertising have continued. The Obesity Policy Coalition, which includes Cancer Council Victoria, Diabetes Australia and VicHealth among its partners, supports a prohibition on the advertising of 'unhealthy' food on television at times when a significant number of children are likely to be watching, as well as a prohibition on other forms of promotion to children (such as radio, cinema, internet and product packaging).3

In November 2011, Senators Bob Brown and Richard Di Natale introduced a Private Senators Bill, the Protecting Children from Junk Food Advertising (Broadcasting and Telecommunications Amendment) Bill 2011, prohibiting the broadcast of an 'unhealthy food advertisement' directed to children and limiting the times in which unhealthy food advertisements could be screened. Although the Bill seems unlikely to be passed, it remains current.

Junk food labelling in Australia

On the issue of labelling, the Taskforce recommended the introduction of labels on front-of-pack and menus with easy-to-understand nutritional information and a standard serve/portion size. Since that time, an independent panel chaired by former Australian Health Minister Dr Neal Blewett AC has conducted a detailed review of food labelling law and policy. The panel presented its report, Labelling Logic: Review of Food Labelling Law and Policy, in January 2011.

For junk food, Labelling Logic recommended the introduction of a traffic light front-of-pack labelling system.4 In its response to Labelling Logic, delivered in December 2011, the Legislative and Governance Forum on Food Regulation (a body comprising health ministers from each Australian jurisdiction and New Zealand) decided that the design of a front-of-pack labelling system would be developed in collaboration with stakeholders during 2012, with a preference for voluntary implementation by industry, depending on the level of stakeholder consensus.5

Before this consultation process commenced, the Federal Government ruled out the possibility of a move to traffic light labelling. The consultation process has now concluded, and new labelling concepts — including a potential 'star rating' system — are currently being tested with Australian consumers.6

Health bodies continue to call for the introduction of traffic light labelling in Australia. For example, the Australian Medical Association has spoken out in favour of mandatory traffic light labelling, on the basis that such labels 'enhance the ability of consumers to make healthier food choices' and a voluntary approach will lead to 'unpredictability, inconsistency, public confusion and failure'.7 By contrast, industry bodies continue to reject calls for traffic light labelling. The Australian Food and Grocery Council criticises the scheme as overly simplistic, arguing that it will confuse consumers and lead to certain nutritious foods, such as dairy products, being viewed as unhealthy due to their higher levels of fat.8

Developments overseas

Both the United Kingdom and the United States have recently moved towards tougher regulation of junk food and soft drinks. In October 2012, the UK Government announced plans to introduce consistent front-of-pack traffic light labelling across the UK.9 The UK Government expects that major food manufacturers and retailers in the UK will comply with the new labelling system, which is due to be introduced later this year.

Other countries in Europe already have more stringent regulation of junk food labelling. For example, France has had requirements for healthy eating messages to accompany advertising for junk food since 2004,10 with four short messages rotated on screens and in other media.

In July 2012, Chile introduced new marketing restrictions and labelling requirements for packaged foods high in calories, fat, sugar or salt. Among other things, the new laws require that 20 per cent of the main surface of the package for these foods bear a stop sign-shaped warning, and prohibit junk food advertising to children under 14 (including the use of promotional devices such as toys and prizes). Several World Trade Organisation (WTO) member states have expressed concerns about the new laws to the WTO Technical barriers to Trade Committee.11

In the United States, California, New York City and Seattle have long required fast food chains to post prominently the calorie content of their food.12 In March 2012, major soft drink manufacturers changed their manufacturing processes in the US, in response to California introducing mandatory health warnings on products containing certain ingredients the state deemed carcinogenic.13

In May 2012, the mayor of New York City, Michael Bloomberg, announced a plan to limit the size of sugary soft drinks sold in restaurants, cinemas, stadiums and arenas. The city's Board of Health approved the plan, which was set to take effect in March this year, but was opposed by groups representing beverage makers, restaurants and cinemas. Following legal action by these groups, the New York Supreme Court issued a permanent injunction, preventing the city from implementing the plan. The city has indicated that it will appeal the ruling.14

Conclusion

It is certain that, in coming years, the Federal Government will face increasing and sustained pressure to introduce tough junk food regulation to replace the current self-regulatory approach. Tougher regulation of junk food is supported by the Australian Greens, as well as a number of public health agencies.

At present, there is no indication that the Government or the Opposition will pursue express health warnings or advertising restrictions of the kind seen in relation to tobacco products for the past 40 years. The possible exception in the short term is front-of-pack labelling, which might operate as a de facto warning label for junk food. However, as the form of that labelling is yet to be determined, its likely effects are difficult to assess.

Given the increasing pressure from public health advocates, however, efforts to introduce further regulatory measures appear inevitable.

Reproduced with the kind permission of LexisNexis from its Australian Product Liability Reporter, November 2012, volume 23(1&2).

Footnotes
  1. National Preventative Health Taskforce, Australia: The Healthiest Country by 2020 – National Preventative Health Strategy – Roadmap for Action, 30 June 2009.
  2. Federal Government, Taking Preventative Action: A Response to Australia: The Healthiest Country by 2020, May 2010, pp 46-47.
  3. See http://www.opc.org.au/paper.aspx?ID=foodadv_polbrief&Type=policydocuments, accessed on 9 October 2012.
  4. In a traffic light system, a green light indicates low levels, amber medium levels and red high levels of a component such as saturated fat, sugar and salt.
  5. Legislative and Governance Forum on Food Regulation, Response to the Recommendations of Labelling Logic, 9 December 2011, pp 51-54.
  6. Kathy Chapman, 'Out with traffic lights, in with stars – next steps in food labelling', The Conversation, 7 December 2012, accessed on 15 April 2013.
  7. See http://ama.com.au/traffic-light-labelling, accessed on 8 October 2012.
  8. See http://www.afgc.org.au/media-releases/1054-wrong-diagnosis-by-ama-on-traffic-lights.html, accessed on 8 October 2012.
  9. Denis Campbell, 'All supermarkets to adopt "traffic-light labelling for nutrition"', The Guardian, 24 October 2012, accessed on 22 March 2013.
  10. Dr Rhonda Jolly, 'Marketing obesity? Junk food, advertising and kids', Parliamentary Library Research Paper No 9, 2010-11, 12 January 2011.
  11. See http://www.wto.org/english/news_e/news13_e/tbt_13mar13_e.htm, accessed on 15 April 2013.
  12. Jeff Jacoby, 'Want a warning label with those fries?', Boston Globe, 11 January 2009
  13. Mikaela Conley, 'Coke, Pepsi skirt cancer warning label', 9 March 2012, accessed on 8 October 2012.
  14. See http://www.bloomberg.com/news/2013-03-12/new-york-city-files-notice-of-appeal-over-soda-size-case.html, accessed on 5 April 2013.

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