An investigation into existing advertising regulations by Australian law researchers, Flinders University Professor of Law Elizabeth Handsley and the University of Sydney’s Dr Belinda Reeve, has found glaring gaps in how industry self-regulatory measures are applied, poorly policed guidelines, and a lack of transparency in how food companies report their advertising practices.
“Self-regulatory measures have been subject to significant criticism, particularly as they have done little to improve children’s food marketing environment,” says Professor Handsley.
“Significant loopholes in the terms and conditions of the relevant codes and initiatives, and flaws in the regulatory processes mean that little is done to limit children’s exposure to food marketing.”
The report entitled “Holding Food Companies Responsible for Unhealthy Food Marketing to Children: Can International Human Rights Instruments Provide a New Approach?”, by Professor Handsley and Dr Reeve – just published in the UNSW Law Journal (41(2), 449-87) – is critical of industry for producing weak standards created without public or external consultation.
Worse still, these standards are not administered by an independent body or enforced with meaningful sanctions.
The law experts want companies to refocus marketing practices with a view to protecting children’s rights, providing a stronger legal basis with international ramifications as the impetus for change.
“Our arguments conclude that children’s exposure to unhealthy food marketing should be considered a human rights issue,” says Professor Handsley.
She believes the food industry should protect children from exposure to marketing for unhealthy products, based on the UN Convention on the Rights of the Child (UNCRC), the UN Guiding Principles on Business and Human Rights, and the Children’s Rights and Business Principles, which outline human rights obligations for businesses.
While the UNCRC can only be used to place child rights obligations on states, the Guiding Principles and the Children’s Rights and Business Principles create a voluntary framework for holding businesses accountable for respecting children’s rights.
The article by Professor Handsley and Dr Reeve argues that this should include protecting children from unhealthy food marketing, as it infringes rights found in the UNCRC.
Professor Handsley says independent, third-party administration of the codes and initiatives is necessary, along with systematic monitoring of compliance and of the code’s impact on children’s exposure to unhealthy food marketing, and meaningful sanctions for non-compliance.
Although unhealthy food marketing to children can be framed as a human rights issue that should be addressed in business practices, Professor Handsley believes government intervention is still required.
“There needs to be greater leadership by governments, replacing self-regulation with co-regulatory or statutory schemes, because self-regulation is proven to be ineffective in reducing children’s exposure to unhealthy food marketing,” she says.
“We want consideration of food marketing practices integrated into a company’s human rights due diligence programs, and reported publicly under the Guiding Principles Reporting Framework.”
Professor Handsley says there is an urgent need for action, after a 2015 study found that Australian children viewed an average of three advertisements for unhealthy food products per hour of prime-time television that they watched – a figure that has remained unchanged since the introduction of the food industry’s self-regulatory initiatives.
This means that food industry self-regulation is ineffective in addressing children’s exposure to unhealthy food marketing targeted to an adult or general audience.
“Independent research suggests much lower levels of compliance than reported by industry, which rings alarm bells about overt industry practices,” says Professor Handsley.
“A growing body of research demonstrates how the food industry uses tactics similar to those of the tobacco industry in an attempt to prevent, stall, or weaken the introduction of government initiatives on diet-related health.”
These tactics include funding research that is biased in favour of industry interests, lobbying against obesity prevention measures, and employing health experts as a way of steering scientific conversation on public health and diet.
To curb this, Professor Handsley suggests that governance processes created by the Guiding Principles could be strengthened by companies being required to disclose full details of their human rights compliance, along with more robust independent monitoring – and even naming and shaming companies that fail to adhere to the Guiding Principles.