Viewpoint

New Zealand has an unacceptably high prevalence of childhood obesity,1 and the Minister of Health, Dr Jonathan Coleman, has made it one of his priorities to reduce this rate through the government’s childhood obesity plan.2 Achieving this goal will require a significant reduction in the marketing of unhealthy foods and beverages to children and young people.

The WHO Commission on Ending Childhood Obesity, which is co-chaired by the Prime Minister’s Chief Science Advisor, Professor Sir Peter Gluckman, had its report3 endorsed by all Member States, including New Zealand, at the World Health Assembly in May 2016. This report supports a strong regulatory approach to reduce unhealthy food marketing to children, as do New Zealand public health experts.4,5

In 2015, the Advertising Standards Authority (ASA), the industry body responsible for the self-regulatory codes on advertising, pre-empted the launch of the government’s 22-point plan2 by announcing a review of the two ASA codes which relate to advertising to children. In September 2016, the ASA’s independent Review Panel submitted its report to the ASA Board, recommending including the amended code provisions to be included into a new single, combined ASA code.6 Dr Coleman commented that the revised ASA code would make significant improvements to protect children and young people from exposure to the marketing of unhealthy food products.7 This analysis critically assesses whether the revised ASA code will achieve that outcome.

The ASA Review Panel received 91 submissions, including 52 from public health and nutrition organisations that called for substantially strengthened codes, and 15 from the food and beverage industry sector, which largely opposed stronger codes.8 For example, the Food and Grocery Council called for a lowering of the age to which the ASA code would apply from 14 years to 12 years.9 Six weeks after the release of the Review Panel report, ASA asked submitters to comment once again on two issues: the nutrient profiling system to use (see point 6 below) and the definition of targeting children (see point 7 below).

Although there is no evidence that industry-controlled, voluntary codes are effective in reducing marketing to children,10 public health groups actively participated in the ASA review in the hope of strong outcomes. A group of over 70 health professors provided a submission with eight outcomes (in bold below) that they would use to assess the strength of the revised code.11 How well does the proposed new code meet these outcomes?

1. The UN Convention on the Rights of the Child (UNCROC) is expressed throughout the code. As in the existing ASA codes, UNCROC is recognised in the introduction of the proposed combined code. However, the rules of the proposed code do not take a rights-based approach, which would give primacy to children’s interests. Instead, they are a compromise between protecting the interests of children and protecting the interests of the private sector, which advertises unhealthy foods to children. Assessment: no change, outcome not achieved.
   
2. The definition of children aligns with UNCROC (under 18 years). Despite widespread agreement in the submissions from public-interest groups that a child should be defined as under 18 years, as per UNCROC, the review recommended no change from the current age of 14 years. For children aged 14–18 years, the review suggested that ‘a special duty of care be taken’, but did not further define what such a duty would entail. As a result, none of the new provisions in the proposed ASA code apply to adolescents 14–18 years. Assessment: no change, outcome not achieved.
   
3. The objectives of the code are to reduce the exposure and power of unhealthy food marketing to children. While the purpose of the ASA review stated that ‘the best interests of children are a primary consideration’, the code remains focused on the appropriateness of single advertisements rather than the overall marketing to which children are exposed. The revised code, thus, fails to address the crux of the public health concern. Although the code mentions restrictions on the use of celebrities and licensed characters popular among children, it is unclear how these restrictions will be operationalised, as commercial sponsorship and advertising on the packaging have been excluded from the proposed code. Assessment: small changes, outcome not achieved.
   
4. Recommendations are made to government to significantly invest in achieving reductions in marketing to children. Many submissions to the ASA review called for government involvement in co-regulatory arrangements because of the failure of self-regulatory approaches in New Zealand and internationally to significantly reduce unhealthy food marketing to children. The Review Panel ruled that it was out of scope for it to make any recommendations to government. Instead, they used soft language to suggest that ‘advertisers be encouraged to discuss’ unresolved issues such as sponsorship, advertising on packages and an appropriate nutrient profiling system with government. Despite a large number of submissions calling for independent monitoring, the Review Panel recommended that the ASA be responsible for monitoring the code. Assessment: no change, outcome is not achieved.
   
5. The code covers all forms of marketing. As in the existing ASA codes, the term advertising is defined very broadly in the proposed code, but sponsorship and advertising on product packaging are exempted. These are major forms of marketing unhealthy foods to children. The protection from the forms of advertising which are covered within the code is highly dependent on the definition of targeting children (see point 7 below). Assessment: no change, outcome is not achieved.
   
6. The code defines unhealthy foods using a robust nutrient profiling (NP) system (WHO NP system recommended). WHO is the world’s most important standard-setting organisation for health. The WHO Europe NP system has been specifically designed for marketing to children, and was the most highly recommended NP system by public health submitters.12,13 The Review Panel received specific testimony from world experts who recommended the WHO Europe NP system and provided the Panel with comprehensive comparisons of various NP systems using New Zealand data.12 The Panel said it could not decide on this point and recommended the Ministry of Health food and beverage classification system14 be used in the interim. The Ministry’s NP system has three levels (everyday, sometimes and occasional foods), and was designed for food sold in schools so would require modification to ensure suitability for this purpose. By contrast, the WHO NP system was designed specifically to limit marketing of unhealthy food to children, and has two levels (acceptable or not). Assessment: improvement since previous code had included no nutrient profiling system, outcome partially achieved, but pending the further round of consultations.
   
7. The code clearly defines ‘marketing to children’ (Quebec model recommended). The Review Panel recommended that ‘targeting’ means the advertisement has ‘principal appeal to children and/or young people’ with the nature of the product, theme, language and images ‘taken into account’. The operationalisation of these definitions is unclear. The Panel also recommended that an advertisement is ‘deemed to be targeting children or young people if they are likely to comprise 25% or more of the likely audience’ (although children aged 5–14 years comprise only about 20% of the total population). This figure of 25% appears to have been chosen arbitrarily. The Review Panel had not evaluated any children audience data for the various media when it made this quantitative recommendation, and it is unclear how this rule will be operationalised. Following further inquiries on these issues to the ASA by the authors, the ASA has requested further submissions on this point. In addition, because adult viewership is in the denominator, having more adults in the audience will reduce the percentage of children watching but not the total number of children watching. The highest number of children exposed to unhealthy food advertising is during evening television (figure), which is also when the frequency of unhealthy food advertisements peaks. Indeed, in peak viewing times, 6–7pm, more than 120,000 5–13 year olds are exposed to over 15 unhealthy food advertisements an hour, creating over 2 million ‘impacts’ (ad impressions x viewers) per hour. Using children’s viewership is a more logical and robust way to define marketing to children (see markers A and B in the figure) than including adult viewership in the metric. In Quebec, the Consumer Protection Act defines advertising as targeting children based on a) the nature and intended purpose of the goods advertised; b) the manner of presenting such advertisement; c) the time and place it is shown.15 The Office of Consumer Protection has decades of experience in implementing these definitions, which are now tightly defined through multiple case judgements. The table addresses the third of these criteria for various media as they might apply in New Zealand. Assessment: great uncertainty in the operationalisation of the proposed definition, outcome uncertain.
   
8. The code covers marketing in child and youth settings. The proposed ASA code states that ‘Settings where children gather must be free from all forms of occasional food and beverage product advertisements’. This is an improvement in wording over existing codes. However, more than 95% of schools report that they are free of food advertising (unpublished data). Sponsorship activities are the main form of marketing in children’s settings, yet are exempted under the proposed code. Thus, Ronald McDonald teaching road safety to six-year-olds is not considered by the proposed code to be marketing to children. In addition, the full extent of settings included is not clear. The actual impact of this improved wording is likely to be small. Assessment: improvement in wording, outcome uncertain.
   

Table 1: Suggested criteria, by media type, for determining if the timing and placement of marketing of unhealthy foods is likely to result in significant exposure to children.

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Other important criteria of the nature of the product and the manner of its presentation are not considered here.

From our assessment, the revised ASA code cannot be expected to have a significant effect on restricting unhealthy food marketing to children and young people, and there is no indication that independent monitoring will be implemented to assess the code’s effects. The code reflects problems endemic to self-regulation where commercial interests conflict with public interests,10,16 and falls far below current international best practice.17

In summary, we recognise the ASA’s initiative in instigating a review of its codes, but we consider that, while the proposed code appears to be a small step in the right direction, it does not provide adequate protection of children and young people’s interests. A further potentially serious downside is that the revised ASA code will be given as a reason by the Government for not implementing the regulations that would effectively reduce children and young people’s exposure to marketing of unhealthy foods.

In our view, the Review Panel has missed a major opportunity to introduce meaningful changes that would help to reduce childhood obesity. Government regulation is urgently needed to create a policy framework which privileges children’s health and well-being above commercial interests.

Figure 1: Numbers of children aged 5–13 years (solid bars) and 14–18 years (striped bars) in weekdays (grey bars) and weekend days (black bars) watching television (all channels combined).  

A and B mark 10% and 15% respectively of the total children aged 5–13 years in New Zealand. The line represents the number of unhealthy advertisements per hour (weighted average of weekdays and weekends) as defined by WHO criteria.13

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