Annex: Regulering van
voedingsreclame gericht op Kinderen
Landenrapporten voor 11 EU lidstaten

Zoetermeer , 19 februari 2015
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Inhoudsopgave
1

België

1.1

1.3
1.4

Description of Current national approach to regulating food
advertising aimed at children
Context in which the current national approach was developed and
implemented
Evaluating the outcomes and effectiveness of policies
Transferability

7
9
11

2

Denmark

13

2.1

2.3
2.4

Description of Current national approach to regulating food
advertising aimed at children
Context in which the current national approach was developed and
implemented
Evaluating the outcomes and effectiveness of policies
Transferability

3

Finland

3.1

3.3
3.4

Description of Current national approach to regulating food
advertising aimed at children
Context in which the current national approach was developed and
implemented
Evaluating the outcomes and effectiveness of policies
Transferability

4

France

4.1

4.3
4.4

Description of Current national approach to regulating food
advertising aimed at children
Context in which the current national approach was developed and
implemented
Evaluating the outcomes and effectiveness of policies
Transferability

5

Germany

5.1

5.3
5.4

Description of Current national approach to regulating food
advertising aimed at children
Context in which the current national approach was developed and
implemented
Evaluating the outcomes and effectiveness of policies
Transferability

6

Luxemburg

6.1

Description of Current national approach to regulating food
advertising aimed at children
Context in which the current national approach was developed and
implemented
Evaluating the outcomes and effectiveness of policies
Transferability

1.2

2.2

3.2

4.2

5.2

6.2
6.3
6.4

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5
5

13
14
17
21

23
23
25
30
31

33
33
37
42
45

47
47
53
55
57

59
59
60
61
61

3

7

Norway

7.1

7.3
7.4

Description of Current national approach to regulating food
advertising aimed at children
Context in which the current national approach was developed and
implemented
Evaluating the outcomes and effectiveness of policies
Transferability

8

Slovenia

8.1

8.3
8.4

Description of Current national approach to regulating food
advertising aimed at children
Context in which the current national approach was developed and
implemented
Evaluating the outcomes and effectiveness of policies
Transferability

9

Spain

9.1

9.3
9.4

Description of Current national approach to regulating food
advertising aimed at children
93
Context in which the current national approach was developed and
implemented
97
Evaluating the outcomes and effectiveness of policies
103
Transferability
109

10

Sweden

10.1

10.1

Description of Current national approach to regulating food
advertising aimed at children
111
Context in which the current national approach was developed and
implemented
114
Evaluating the outcomes and effectiveness of policies
117

11

United Kingdom

11.1

Description of Current national approach to regulating food
advertising aimed at children
Context in which the current national approach was developed and
implemented
Evaluating the outcomes and effectiveness of policies
Transferability

7.2

8.2

9.2

10.2

11.2
11.3
11.4

4

63
63
66
71
74

75
75
81
87
90

93

111

119
119
121
124
128

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1
1.1

België
Description of Current national approach to regulating food
advertising aimed at children

1 . 1 . 1 H o w is f oo d a dv e rt i si ng to wa rd s c h i ld r en d ef ine d in th e cou nt ry? Do di f fe r en t
a c to rs u se d i ff e re nt d efi n i t ion s?
The Media Decree defines children as being 12 years and under. Minors are those
individuals under 16 years and under. However there are no specific stipulations on
food advertisements aimed at children. There is however a definition of what
constitutes a children’s programme in the Flemish media decree, Article 2.19. This
states that a children’s programme is one which “is aimed predominantly at children,
which can be apparent from the content, the time at which it is broadcast, the design
of the programme, the presentation and the way in which the programme is
announced” 1.
The advertisements aimed at children are monitored and interpreted on a fairly
common sense basis. The Flemish Media Regulator (VRM) adopts a case by case
approach when it receives complaints or during its monitoring activities. If a radio or
television advertisement appears to have childish appeal (judged by the VRM using
common sense and intuition, examining the apparent intent behind an advertisement)
and which is not compliant with the decree, it can step in.
The FEVIA self-regulatory code also understands children to be those of 12 years and
under, as does the more recent national Belgian Pledge on food advertisements aimed
at children. Minors are also considered and these are 16 years of age and under. The
code and the pledge use several broad criteria where the apparent appeal of an
advertisement towards children is based on the interpretation of the monitoring and
enforcement bodies.
1 . 1 . 2 S y st em o f re gu la t ion f ol l o w ed b y c ou nt ry fo r re g ul a t in g fo od a d ve rt i s in g
t owa r ds ch i l d re n
The media decree, “Media Decreet”, which regulates broadcast media in Flanders, was
introduced in 2009. This decree was formed to implement the EU regulations on
broadcast media, namely the Audio-visual Media Services Directive (AVMS) (which
was introduced in 2007 and codified in 2010). In transposing this EU regulation to
Flemish law, the Flemish Regulator for Media Services (the VRM) was established by
the Flemish government. This body is the formal but independent regulator for all
broadcast media in Flanders.
Besides this the Belgian federation for the food industry, FEVIA, has its own
advertising code as well for marketing food products. In this code advertising towards
children specifically is addressed as well. This was developed with the Belgian Union of
Advertisers (UBA) in 2004. In 2005 representatives from the FEVIA, the UBA, and the
Association of Communication Companies (ACC) and the Belgian Jury for Ethical
Advertising Practice (JEP) presented and explained this food advertising code to food
producers and actors in the marketing chain.

1

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Flemish media decree, 2009

5

Additionally, a Belgian Pledge was introduced which takes up the rules and stipulations
in the EU Pledge. In Belgium as a whole some 37 companies signed and these
promises were made public. This pledge carries the agreement that no advertising will
be carried out aimed at children less than 12 years of age for foods which do not fulfil
appropriate nutrient profiles. This Belgian Pledge was introduced in 2009 and launched
in 2012. It was developed at the initiative of FEVIA, the UBA and the Belgian
federation of trade and services, COMEOS. This Pledge is monitored by the JEP.
The regulatory agreements in Flanders take the shape of statutory regulation, namely
in the form of the Media Decree. This is supplemented by the specific, self-regulatory
code developed in the name of FEVIA. Besides this the self -regulatory Belgian Pledge
was also launched in an effort to involve as many food producers and marketers and
to get them to commit to not advertising unhealthy foods using any media towards
children under 12.
The Media Decree focuses on broadcast media. It does not contain any specific clauses
on advertisements about food aimed at children. Instead the Decree contains more
general clauses on how enterprises can advertise towards ch ildren. It broadly contains
stipulations on dangerous, violent or overly sexual advertising content and that this
should not be aimed at children. Advertisements are only allowed to be shown for
children when the programme is more than 30 minutes long. Furthermore,
advertisements should not undermine the authorities and social values in a child’s life;
advertisements should be constructed bearing the “necessary social responsibilities” in
mind when being aimed at children and young people. The clauses are t hus quite
broad for the most part in the media decree. They do not concern the content as much
as the general form, shape and timing of advertisements.
In the FEVIA code there are stipulations on the content of the advertisement in that
this must be clearly separate from programming. The code covers all advertising
forms, including online media. Promotions or sales must be clearly explained as well
so that a child can understand the conditions attached to the promotions or sales.
Furthermore concerning the content of advertisements, promotional or children
friendly characters should not be used to mislead children about the nutritional values
of food products advertised. Advertisements should also not make any child feel
inferior by not having the product being advertised. Additionally, advertisements may
not undermine social values, the authority of parents or teachers, or invite children to
persuade their parents to buy the products for them.
The Belgian Pledge also regulates the content of all forms adve rtisements. No
advertisements should be mad of any kind aimed at children under 12 which do not
fulfil the appropriate nutrient profiles.
The Media Decree implements the EU Audiovisual Media Services Directive and
concerns advertisers and media organisations broadly.
The FEVIA code targets producers of food products and advertisers and media
organisations. The indirect target groups of the Media Decree are all consumers of
media, while for the FEVAI code these are all people who consumer food products,
with a specific focus on children and minors.

6

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1 . 1 . 3 W h en wa s th e a p p roa ch i mp l em e nt ed
The Media Decree was implemented in its current form in 2009. It transposes the
AVMS Directive which was codified in 2007 and implemented in 2010. The FEVIA code
was developed and implemented in 2005. The Belgian Pledge was implemented in
September of 2012.

1.2

Context in which the current national approach was developed
and implemented

1 . 2 . 1 P ro b l em r ec og n it i on
The Media Decree was developed to regulate broadcast media initially, but it was
amended to its current form in order to transpose the AVMS Directive in 2009. This
new directive and the amendments to the Media Decree were in response to
technological developments which changed the structure and transmission of
broadcast media.
The FEVIA code was developed in response to increasing pressure on food producers
and the role they play in contributing to obesity and overweight in Belgium. Its first
version, in 2004 was developed in response to the ICC Consolidated Code on
Advertising Practices.
As a response to the pressure on the food industry, the food and advertising
industries decided to proactively take measures to regulate the advertisement of food
more strictly. The rationale for the industry was that self -regulation is the best
approach and wished to demonstrate their commitment to advertising food
responsibly.
The Belgian Pledge in turn was in response to the EU Pledge for food producers and
companies. The driving idea behind a national version of this pledge came from the
food producers, trade and services organisations and the Belgian association for
advertisers. The idea was to sharpen the commitment and responsibility of food
producers when it comes to advertising food towards children specifically.
By introducing more formal responsibility for Belgian food, media and advertisement
producers, the Belgian Pledge and the FEVIA code were implemented to regulate the
Flemish media without resorting to statutory regulations. By making food
advertisements more responsible, with special emphasis on children, these aimed to
contribute to more socially responsible advertising with less emphasis on unhealthy
foods.
1 . 2 . 2 D o es th i s a p pr oa c h t o re g ul a t in g fo od a d ve rt i se m en ts a i m ed a t ch i l dre n
c on ne ct w it h pr i o r it i es f r om ot he r p o l icy a r ea s?
There are other policies on promoting healthy lifestyles and an awareness of the
pervasive nature of media. In this vein there are movements from the Ministry of
Public Health, Well Being and Family to increase the “reclame wijsheid” or “advertising
wisdom” amongst children.
The activities on promoting better advertising of food, to children amongst other
groups, have strong ties with national policies on heathier living. In 2006 Belgium
launched a Plan on Nutrition and Health covering the period 2005–2010. In line with
the principles of this plan the FEVIA code was developed. In 2007, a White Paper for
Belgium on the advertising of food and non-alcoholic beverages to children was also
developed into this Nutrition Plan and was partially also implemented in t he FEVIA
code. 2
2

C11062

WHO, Overview of implementation of statutory and self-regulatory codes in the area of marketing foods and
beverages to children in European Union Member States, 2010.

7

Additionally, the Belgian Pledge also contains stipulations concerning primary schools.
Advertisements for food products should not be shown here unless the school
expressly asks for this.
1 . 2 . 3 W h ic h a cto r s o r o rga n isa t i on s a r e re sp on s ib l e fo r i n it ia t ing t he cu r r ent
o r ga n is a t io n of fo od a dv e rt i si ng a im ed a t ch i l dr e n?
The Belgian Federation for Food producers, FEVIA, was one of the main instigators of
the FEVIA code and the Belgian Pledge. In both these self-regulatory instruments
however, the Belgian Union of Advertisers (UBA), and the Association of
Communication Companies (ACC) were involved in the development as well. For the
FEVIA code, Belgian Jury for Ethical Advertising Practice (JEP) was involved in the
development and implementation process.
The Ministry of Public Health, Well Being and Sport and the Ministry of Culture, Youth,
Sport and Media were involved in transposing the AVMS Directive into the Media
Decree, along with the VRM.
1 . 2 . 4 D e ve l o pm ent o f th e a pp r oa c h: w hi ch co nt ex tua l fa c to rs in f l ue nc ed t he
d e ve l op m ent o f t he c urr e nt a p p roa ch to r e gu la t i ng f oo d a dv e rt is i ng a im e d a t
c h i ld r en?
The current FEVIA code was developed in collaboration with advertising, food and
related business sectors. The JEP which monitors and enforces the code has been in
place since 1974 as the independent self-regulatory body for the advertising sector.
The Belgian Pledge was developed at the initiative of several industry bodies and has
been sanctioned by the Belgian government who felt this was a favourable init iative.
The Media Decree was already in place and was amended. The VRM was also already
in existence in accordance with previous EU Directives, namely the Television without
Frontiers Directive (the predecessor of the AVMS Directive).
The main contextual factors which affected the development of this approach can be
categorised into political, social and technological structural factors. The political
debate concerning healthier living reflects a social concern about increasing trends in
obesity and overweight. This is common across Europe and the nature of this debate
is quite similar in other countries. Society and representatives of different societal
groups express concern about rising obesity and overweight, especially amongst
children, coupled with concerns about the increasingly pervasive and subtle styles of
advertising. This concern, especially with obesity and overweight has been the subject
of debate at the political level for some time as well, reflected in the first Belgian
moves to make a self-regulatory code (2004) and the Nutrition Plan 2005 – 2010.
Indirectly, economic considerations from the food and advertising industries seem to
have played a role. While the proactive stance of food and advertising industries to
self-regulate advertisements about food is also based on health and social concerns,
statutory regulation tends to be more expensive and inflexible. Stricter regulations
and the economic impacts of having to operate in a more restrained manner may also
have contributed to the development of self-regulatory codes in collaboration with
governmental bodies.
Technological advancements regarding the internet and its effect on converging media
technologies (in the shape of digital media, social media, advergames, direct
marketing etc.), influenced the revision of the EU AVMS Directive which consequently
also led to amendments of the Media Decree in Belgium.

8

C11062

1 . 2 . 5 I mp l em en ta t i on of t he a pp r oa ch : h o w wa s th i s d on e ?
The Media Decree was already in place in a different form and hence the amendments
were applied and came into force in 2010. The VRM is the independent regulator
appointed by the Flemish government to monitor and enforce this Decree.
The FEVIA code was developed by several actors. Before implementing it, in 2005,
representatives from the FEVIA, UBA, ACC and the JEP came together to present the
new FEVIA code on advertising food products to the industry companies and
enterprises. The JEP is the monitoring and enforcement body and consists equally of
advertising sector representatives and civil society representatives. Specifically, the
civil society half consists of actors such as the national consumer body (TEST
AANKOOP), other consumers and citizens elected by the King Boudwijn charity, the
institute for equal treatment of men and women, and members from the academic and
research communities.
The Belgian Pledge was implemented by the FEVIA, UBA, and the COMEOS (the
representative for Belgian trade and services). Food producers and distributors are
invited to act more responsibly by signing the Pledge.
For all three of these regulatory forms, preventative measures in the shape of advice
and information provision to advertisers and food producers also form part of the
activities of the enforcement organisations.
The VRM has a budget of around 6,400,000 euro per year.

1.3

Evaluating the outcomes and effectiveness of policies

1 . 3 . 1 H a s th e re b e en a ny r e vi e w /e va lua t ion o f t h e a p p ro a ch s o fa r?
The activities of the VRM are published annually in its annual reports. These reports
detail the main decisions of the VRM across a range of areas beyond just advertising
aimed at children or advertising about food. The VRM contains a general chamber and
a chamber for the protection of minors but this concerns protection against sexual,
violent or other influences which undermine the social values and responsibility in
Belgium.
A second annual report is also developed on the compliance with the Media Decree
and this is sent to the Flemish Parliament. The VRM however cites little to know
complaints when it comes to food advertising, let alone regarding food advertising
aimed at children.
FEVIA produces annual reports of its activities as well, but the FEVIA advertising code
is not featured specifically or regularly. The monitoring of the code is carried out by
the JEP however, which does produce annual reports containing its decisions. There is
no real increase in the number of complaints regarding food and drink advertisements
according to the report for 2013. Cases where the JEP establishes a breach in
compliance with the Code amongst others are rare.
1 . 3 . 2 I s th er e a ny sy st em f or mo n it or i ng th e ef fe ct of t hi s a p pr oa c h t o r eg u la t i on?
I f so, wh i ch o rga n isa ti on s or a c to r ca r r i es th i s o ut?
The VRM is the in charge of implementing the media decree and making sure it is
upheld by broadcasting companies and organisations. They do not form policy but
make sure it is upheld properly and complied with.
The VRM works on a monitoring basis and on a complaints basis. Complaints are not
received often, but in these situations the VRM general chamber invites the noncompliant broadcaster to explain and correct their commercial message. If this does
not happen the chamber discusses and takes a decision regarding what kinds of
sanctions to implement.

C11062

9

The monitoring of the VRM consists of screening activities of different types of
broadcasts. When the VRM discovers a broadcast which does not comply with the
media decree the VRM can then start a procedure at their own initiative. (This
monitoring constitutes a screening process which involves taking a sample of
broadcasts which take place within a given space of time and examining these for
compliance with the media decree rules). The VRM administration and legal
departments analyse the screened broadcasts and make a report of their findings
which is then presented to the general chamber of the VRM who then decide what kind
of action (if any) is required.
The VRM works with an external organisation “Nielsen” which records broadcasts
between given times and helps the VRM in its screening activiti es. Nielsen makes a
general overview of programming and this overview also gets sent to the
administrative and legal departments of the VRM which create the reports on
potentially non-compliant broadcasters. The VRM defines a specified number of
screenings to carry out in a year but beyond this no targets or objectives are set for
the media decree of the VRM to achieve.
The FEVIA code is monitored and enforced by the JEP (See above for more
information). This happens on a complaints based system for the most part.
The Belgian Pledge is monitored by different organisations on regular though not
annual basis. In the first quarter of 2010 independent monitoring took place of
advertising in primary schools, carried out by Gent University. TV spots were analysed
by the organisation “Mindshare” and the JEP analysed websites. The monitoring was
based on samples for the different advertising venues and compliance overall was said
to be very high, namely 96% and over for these three advertising forums.
1 . 3 . 3 H o w is c om p l ia nc e w it h th es e r eg u la t io ns m on it o re d a nd e nf or c ed? W ha t
s o rts o f con se qu en c es o cc ur if a n o rga n i sa t i on/ e nt e rp r is e do e s n ot f oll o w
t he re gu la to ry r u le s in p l a c e?
The VRM can undertake a number of actions to enforce compliance. The VRM can
address and inform the non-compliant advertiser of their transgression and opt for a
voluntary resolution. Should this not work, a warning can be issued, the non compliance advertisement and the VRM’s decision on it can be broadcast, advertising
licenses can be suspended or withdrawn, and fines can be issued.
(See above for monitoring of the FEVIA code and Belgian Pledge).
1 . 3 . 4 H o w ef fe ct iv e d o y ou f ee l t h is p ra c t ic e i s in c on tr i bu t in g t o a g oo d r eg u la t i on
o f fo od a d ve r t is in g a i me d a t ch i l d re n? P l ea s e e x p la in.
The Media Decree and the way it is monitored and enforced appears to be effective. In
its 2013 annual report the VRM reports increasing numbers of requests for information
on the VRM, suggesting an increasing awareness and interest in the VRM’s activities
amongst the public. There have also been increases in the satisfaction which
consumers feel towards the VRM and its communication activities. The VRM indicates
it receives little to no complaints concerning the advertisements on food, let alone
food advertisements aimed at children.
From the VRM’s perspective a positive aspect of this approach is the independent
nature of the regulators as they stand above policy and can operate relatively freely
from bias.

10

C11062

1 . 3 . 5 H a v e th er e b e en a ny o bs ta c l es o r cha l l en ge s en co unt e re d i n de v el o p in g a nd
i m p l em en ti ng th i s a p pro a ch t o re gu la t ing f oo d a dv e rt i s ing a im e d a t
c h i ld r en?
From the VRM perspective some of the main challenges were as follows:
o

A challenge for media regulators specifically is the convergence of different
media types and how best to regulate this. This is an issue which concerns the
VRM but does not constitute enough of a large problem to focus too much time
and energy on dealing with. At the moment, these cases of converged media
are examined on a case by case basis when the VRM encounters them in their
monitoring activities.

o

Another challenge constitutes the broadcasts which come in from outside the
Belgian borders; these form a big challenge for all regulators. For example,
RTL being situated in Luxembourg where the commercial broadcasting rules
are more lenient, NETFLIX and how to classify and regulate this form of
media, satellite broadcasts, etc.

o

Commercial communication also has many categories within it: for instance
product placement, advertising, infomercials, packaging etc. There is
something of a grey zone which broadcasters make as much use of as they
can. This makes categorising a broadcast and then knowing how to deal with it
problematic for regulators.

o

Additionally, there are multiple pressures at work from advertisers, large
companies, the economic crisis, and consumer interests which make it
necessary to employ a case by case approach to regulating broadcasts.

o

1.4

Transferability

1 . 4 . 1 D i sc us s ion o n t ra nsf e ra b i l i ty o f a pp ro a ch
From a self-regulatory perspective, the Belgian approach to regulating food
advertisements aimed at children seems quite transferable. The self -regulatory code
and the Belgian Pledge carry intuitive appeal in that actors from the food and media
industry voluntarily came together to address a societal issue (namely obesity and
overweight) with governmental and civil actors.
Financially speaking, these approaches do not contain high levels of extra costs, nor
would the human resources involved prove an obstacle to transferring these
approaches according to interviews held for this case.
Institutionally speaking, a self-regulatory code is recommended by the EU and as such
many countries have a code of some kind and a self-regulatory body to monitor this.
The form of the regulating body is interesting in that it is autonomous and includes
private and governmental interests in its activities. The Belgian Pledge is monitored by
the same organisation which monitors the self-regulatory code in Belgium. However,
for monitoring compliance with the Belgian Pledge, a number of different organisations
were also involved. The regulating body, being a hybrid of sorts between public and
private interests could also be implemented in other countries, as could outsourcing
certain types of monitoring to organisations with enough expertise to do so, as was
done by the JEP in monitoring the Belgian Pledge.
The statutory approach is relatively easy to implement in other countries as the
normal process for introducing a new law was followed in Belgium. This could
therefore also presumably be done in other countries; the Media Decree is relatively
broad and is complemented by the self-regulatory approaches.

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11

1 . 4 . 2 P ot en t ia l o bs ta c l es t o tr a n sf er r in g th is a p p r oa c h to ot he r na t i ona l con te xt s
The Belgian Pledge may, according to interviews, prove a challenging approach to
enforce. This is because the stipulations are stricter than in the EU Pledge and
because it came about due to the voluntary and committed efforts of a large number
of Belgian food producers. Replicating this attitude amongst private stakeholders for
responsible and committed advertising will prove difficult.

12

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2
2.1

Denmark
Description of Current national approach to regulating food
advertising aimed at children

2 . 1 . 1 H o w is f oo d a dv e rt i si ng to w a rd s c h i ld r en d ef ine d in th e cou nt ry? Do di f fe r en t
a c to rs u se d i ff e re nt d efi n i t ion s?
The Danish approach
Denmark has a self-regulatory and voluntary approach to food advertising aimed at
children developed and maintained by the industry. A partnership between the full
marketing value chain including producents, the media branch, retail food vendors,
internetmedia and broadcasting stations has formed the ‘Forum of Responsible Food
Marketing Communication’ (see ‘Forum for fødevarereklamer’) with the aim of
relieving children for advertisements for food products with a high degree of sugar,
salt and fat. They have issued a central Codex (see ‘Kodeks for Fødevarerreklamer’)
that encourage partners to not show advertisements for food products containing high
quantities of sugar, salt or fat to children in medias that are targeted to children
under 13 years of age.
2 . 1 . 2 S y st em o f re gu la t ion f ol l o w ed b y c ou nt ry fo r re g ul a t in g fo od a d ve rt i s in g
t owa r ds ch i l d re n
Three aspects are to be considered if advertisement of a foo d product qualifies to the
restrictions in the Codex: 1) if the food product that is advertised for has sufficient
levels of salt, sugar or fat as specified in the guide following the Codex (see ‘Kodeks
for fødevarereklamer’), 2) if the marketing happens through a medium (currently all
mediums are included), and 3) if parts of that medium can be described as a childrens
medium. A childrens medium is based on the character of the langauge, effects,
persons, themes, age of actors, the date and time of the pub lication. The member
organisation responsible for the advertiser judges wheter or not the media is to be
considered a childrens media.
The Codex applies to broadcast, online media, and printed media. The Forum of
Responsible Food Marketing Communication do not consider the products themselves
as marketing; ie. The wrapping and appearance of the physical object itself is not
considered. Other grey zones that the interviewees discussed were examples of
children using app-games on adult’s computers. This is an area that is not possible to
account for in the Codex.
The partnership
The partnership is made up of branch organisations for different parts of the industry.
The partnership is voluntary for the organisations, but enterprises that are members
of organisations in the partnership is obliged to follow the Codex. The partners are
invited to join in to create the structure, content and control of the Codex. The
advertisers bear the responsibility of not market unhealthy food products to children,
and the organisations in the partnership bear the responsibility of monitoring their
part of the valuechain and take action if breaches occur. In addition to the Codex, the
partnership has created a guide to the senders of advertising that clarifes which food
products, mediums and types of marketing that is subject to the Codex (see ‘Kodeks
for Fødevarerreklamer’).

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13

The food products are judged as included in the Codex on the level of sugar, salt and
fat in accordance to the Danish Nutrition Guide. The forum has created several food
categories to which different nutrition criteria applies (see “Kodeks for
fødevarereklamer”).
The Codex was effective of from January 1 st 2008. The partnership consists of:


The Danish Food and Drink Federation in the Confederation of Danish
Industry;



Danish Chamber of Commerce;



Association of Danish Media;



TV2 Denmark (broadcasting);



Danish Brewer’s Association;



Creativity and Communication, Danish Association of Communication and
Creative Agencies;



Association of Danish Advertising;



Federation of Retail Grocers;



Horefsta, Branch organisation for Hotel, restaurants and tourism.

The target group
The Codex applies to children under 13 years of age. It applies to all types of media
that children under 13 years are in contact with and to all media equally. It is limited
to media, however, and does not take into consideration other forms of marketing as
for an example the wrapping of products. The codex encourage, but do not regulate,
that special care is taken when marketing to teenagers over 13 years old as well.
The target group of the Codex is the senders of advertisment of unhealthy food to
children as well as the full media value chain. Both the senders of advertisement as
well as the media organisations are obliged to follow the codex. The indirect target
groups that are ultimately affected by this model is children under 13 years of age,
who are not exposed to marketing of unhealthy food products through medias.
2 . 1 . 3 W h en wa s th e a p p roa ch i mp l em e nt ed
The Codex came into effect on January 1 st, 2008.

2.2

Context in which the current national approach was developed
and implemented

2 . 2 . 1 P ro b l em r ec og n it i on
Danish context
It is important to note that Denmark has a quite low level of marketing of unhealthy
food products to children compared to other EU member states. This is true both
before and after initiatives were taken to limit the marketing to children. Interviewees
has pointed out that Danish consumers largely react negatively on heavy marketing
aimed at children, which does not stimulate a great number of this kind of marketing.
The years 2007 and 2008 saw a strong political discussion of the marketing of
unhealthy food products to children in Danish public debate. There was discussions of
the possibilities of legislating on the area in the Danish parliament, but there was not
reached a majority to legislate. As a consequence of the debate, the industry took
initiative to create the Forum of Responsible Food Marketing Communication.

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Interviews with the industry pointed to the fact that it would be more beneficial for
the industry to be involved in the crafting of a solution themselves. In this way the
industry would show responsibility on the area as well as not enduring legislation. The
Forum of Responsible Food Marketing Communication was thus created on the
backdrop of a luring govermental legislation on the area. The Danish Food and Drink
Federation took initiative to start the Forum and invited the branch organisations
covering the value chain of marketing in Denmark. They involved the partner
organisations by the most important players first, but eventually included the
complete valuechain in marketing as well as industry organisations. Of notable
exceptions, The Danish Consumer Council and the The Danish Patient Association
chose to stand outside the partnership as they did not view the Codex discussed to be
sufficiently strict in its regulation. They still meet w ith the Forum regularly to discuss
the Codex. The Consumer Council and Patient Organization choose to stay out because
they did not find the Codex to be sufficiently strict in its definitions of ‘unhealthy food
products’ and age-definition of ‘children’. They do meet with the Forum regularly, as
part of a group of Consumer organizations consisting of The Danish Cancer Society,
The Danish Diabetes Association, the Danish Heart Association and The Danish
Consumer Council. No consumer organization or representative is formally part of the
Codex, but the forum meets with these organisations as well as The Patient
Association on a regular basis to discuss their views.
The organisations have been positive towards the self-regulatory approach in the
Codex, but they do have objections concerning definitions as well as the extent of the
Codex and the degree of monitoring. The Forum has viewed the dialogue between
consumer/patient organisations and the Forum as constructive.
From a policy debate perspective, the issues have largely disappeared, as there is
very limited marketing of unhealthy products to children at all. This is not a topic of
public debate today.
Objectives of policy
The main objectives of the Codex is to create a safe space for children where they will
not be confonted by advertising for unhealthy food products. The rationale behind this
objective was to stop the increasing weight gain of Danish children to enhance their
life quality of their whole life as well as decreasing public expenses to obesi ty-related
sicknesses. By increasing focus on protecting the health of children, the Codex falls
into a Danish tradition of protecting vulnerable consumer groups.
The second objective of making a industry led Forum and a Codex was to involve and
engage the industry from all aspects of marketing in developing a solution instead of
making governmental legislation. This process was industry led and headed by The
Danish Food and Drink Federation.
2 . 2 . 2 D o es th i s a p pr oa c h t o re g ul a t in g fo od a d ve rt i se m en ts a i m ed a t c h i l dre n
c on ne ct w it h pr i o r it i es f r om ot he r p o l icy a r ea s?
Denmark has a strong tradition for emphasis on good nutrition for children with a
strong political focus on the area. This is among other aspects a consequence of the
strong institutions regarding children that Danish children are largely exposed to;
kindergartens, schools, youth gardens, and their long established roles of shaping the
children as healthy individuals.

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During the early 2000s a number of articles shows a growing interest in the number of
children affected by obesity. Emphasis was put on the health risk the children would
experience for the most of their life as well as the expenses it would put on the Danish
society in terms of sickness, hospitalizations and early retirement from work.
2 . 2 . 3 W h ic h a cto r s o r o rga n isa t i on s a r e re sp on s ib l e fo r in it ia t ing t he cu r r ent
o r ga n is a t io n of fo od a dv e rt i si ng a im ed a t ch i l dr e n?
(Please see Section 2.1.1 on Problem Recognition)
2 . 2 . 4 D e ve l o pm ent o f th e a pp r oa c h: w hi ch co nt ex tua l fa c to rs inf l ue nc ed t he
d e ve l op m ent o f t he c urr e nt a p p roa ch to r e gu la t i ng f oo d a dv e rt is i ng a im e d a t
c h i ld r en?
Development of Forum and Codex
The Codex, like the Forum, was developed in negotiations between the partners of the
Forum and initiated by The Danish Food and Drink Federation. Interviews pointed to
these negotiations between different industry organisations as tough because there
would inevitably be limits to some organisations members marketing strength. The
negotiations centered around key definition questions like which nutrition criteria to
be used to judge which food product as unhealthy. The Forum eventually chose to use
the nutrition criteria from a previous official food guide developed by The Danish
Veterinary and Food Administration and consisting of a green, yellow and red
category. The Forum then used the red category, the unhealthiets category, as
defining what food products were not allowed to market. The industry thus took
independent initative to start the Forum for Food Advertising, but based part of t he
criteria on earlier governmental efforts.
The Codex is not based on any governmental legislation, but has references to the
Marketing law chapter 3 (Law number 1216 of 25. September 2013) that states that
marketing aimed at children must be crafted with special thought to the natural trust
and lack of critical experience of children that make them easy to influence. In
addition, marketing aimed at children and young people under 18 years can not
legally make references to euphoric substances, including alcohol, nor use violence,
fear or superstition as basis for marketing. The official consumer service, the
‘ombudsmand’, regurlarly issues guidances about the interpretation of the law on
behalf of buisnesses. The first guide was issued about children and marketing in 1998.
The development of the codex prompted the Danish Vetenary and Food Administration
to take a standpoint on the issue of marketing of unhealthy food products to children.
They ordered a report on the extent of the marketing of unhealthy food products in
Denmark (named “Usund indflydelse”, currently only available in Danish). The report
concluded that the extent of marketing of unhealthy food products in Denmark is quite
low compared to other European memberstates, as well as marketing of unhealthy
food products is an area that is very hard to legislate upon as the platforms for the
marketing is constantly changing.
The policy of the governmental institution Danish Veterinary and Food Administration
towards the codex at the time of development was following the line of the Minister of
Food, Agriculture and Fisheries at the time. His opinion was that the Ministry shoul d
await the development of the Codex and see how effective it was before pursuing
legislation. It followed from interviews that if the Administration was to make
legislation on the area, it would try to align it with EU -level legislation. National
legislation would not be enough to sufficiently stop marketing of unhelathy food
products to children, as it has no authority over non-Danish internetshops.

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This priority made the effort to pursue legislation a greater effort than if it would be a
question of national legislation. The minister chose to follow the area by having yearly
meetings with the Forum of Food Advertising to monitor its effectiveness. The public
debate that was very present in 2008 and 2009 has largely decreased since then.
2 . 2 . 5 I mp l em en ta t i on of t he a pp r oa ch : h o w wa s th i s d on e ?
The multiple partnership posed challenging to the formulation of the Codex in the
negotating phase, but it was very effective in implementing the Codex among the
partners members when it was crafted. Interviews mentioned that because the
partners involved represented the branch organisations of the whole marketing value
chain, they had the possibility to implement the Codex among their members very
efficiently. The partners had very direct acces to their members and we re in an
already established position to inform and guide their members from other fields. The
implementing process initially required a change in some of the web pages of
enterprises that were members of The Danish Food and Drink Federation to
correspond to the Codex.
It was important for the partners to include the full marketing value chain in both the
development and implementing of the Codex. As well as committing and engaging all
the partners, it also added a great dynamic to act fast on challenges to the codex
faced by new media platforms. As examples of new media platforms discussed is
online games and socail media platforms aimed at children.
The development of the Codex involved all who had a part in the marketing of the
products: producents, the media branch, retail food vendors, internetmedia and
broadcasting stations. The Danish Industry Food Product branch initiated the process
of developing the codex. It is rare, but possible for branch organisations to stand
outside of the partnership, as for an example the Branch Organisation for Danish
Cinemas have done.

2.3

Evaluating the outcomes and effectiveness of policies

2 . 3 . 1 H a s th e re b e en a ny r e vi e w /e va lua t ion o f t h e a p p ro a ch s o fa r?
Evaluating the self-regulating model
After the implementation phase, the Forum has found only four instances of violations
of the Codex. Based on the monitoring work by the Forum the model has been very
successful.
There is no governmental program for evaluating the work of the Forum or the effect
of the Codex. According to interviews, The Ministry for Food, Agriculture and Fisheries
is working towards a system of independent evaluation. The Ministry is in dialogue
with other Nordic countries about developing an independent evaluation. This dialogue
is still in very early stages. Now, The Ministry and the Forum meet yearly for a
dialogue on the effectiveness of the Danish model.

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17

2 . 3 . 2 I s th er e a ny sy st em f or mo n it or i ng th e ef fe ct of t hi s a p pr oa c h t o r eg u la t i on?
I f so, wh i ch o rga n isa ti on s or a c t o r ca r r i es th i s o ut?
No government controlled or independent monitoring of the enterprises adherence to
the Codex exists. Instead, the partners in the Forum have obliged themselves to
monitor the part of the value chain that they are in contact with. The monitoring of
adherence to the codex is thus conducted internally in the codex. There is currently no
external monitoring of enterprises adherence to the Codex.
Each of the partners in the Forum represents a different part of the value chain and
thus monitors different parts of the media using different practices. For three
examples, we mention here The Danish Food and Drink Federation, TV2 Broadcast and
The Association for Danish Media. The Danish Food and Drink Federation monitors the
web pages of their member enterprises for marketing that violates the Codex. TV2
monitors the marketing on their own broadcast. The Association for Danish Media
makes a yearly test of all the print media targeted at children to monitor that the
marketing adheres to the codex.
The monitoring process is both reactive and proactive as different actors at the
various stages of the supply chain employ different monitoring schemes. As an
example, The Danish Media Association employs a proactive approach by monitoring
parts of the media among their member enterprises that are most likely to reach
children. The Forum of Responsible Food Marketing Communication has a complaint
hotline and acts reactionary based on complaints. They have not yet received any
complaints. The actors in the supply chain generally employs a proactive approach
while the Forum employs a reactive approach.
The Forum is in principle open for an independent monitoring scheme in the future to
assist the internal monitoring schemes. They stress, though, that there is a very
important discussion about the allocation of further resources to a problem that they
view as largely solved. The Forum emphasises that it would not be fruitful to use
excessive resources to document that there is indeed a very limited marketing of
unhealthy food products to children. The Forum could potentially monitor the Danish
marketing on foreign broadcasting to the Danish market in order to detect marketing
that violates the Codex. However, from the point of view of the Forum, the reward, if
any, would not match the effort that they put into it.
2 . 3 . 3 H o w is c om p l ia nc e w it h th es e r eg u la t io ns m on it o re d a nd e nf or c ed? W ha t
s o rts o f con se qu en c es o cc ur if a n o rga n i sa t i on/ e nt e rp r is e do e s n ot f oll o w
t he re gu la to ry r u le s in p l a c e?
In instances of violation of the Codex the advertiser is made aware of the violati on
with regard to their specific advertisement. This has so far been sufficient in order for
the advertiser to pull back the advertisment and/or relocate it to a media that are not
considered targeted to children. For instance, the Danish Industry Food Age ncy went
through the homepages of 85 Danish food product enterprises and found violations of
the Codex in three of them. In this case it was sufficient for the partnership to inform
the enterprises of the violation of the Codex in order to make a change in the
marketing.

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In cases of doubt on whether the marketing violates the Codex, the advertisment is
brought to the Forum and discussed among the partners. If the advertisment is
thought to violate the Codex the organisation representing the member takes contact
to the enterprise and starts a dialogue where the enterprise are informed about the
violation and the guidelines in the Codex. This has been sufficient to make the
enterprise correct violation so far. This happens usually by the enterprise taking the
advertisement down. Interviews hinted at certain webbased and semi -automatic
procedures for placing marketing on web pages, that did not necessarily filter through
an employee at the web page in question. Violations usually stemmed from these
instances, where the transgression usually happened due to ignorance of the Codex on
the part of the placers of marketing, and they were thought to be easily resolved.
Only if the dialogue does not lead to a change in marketing will the enterprise be
reported. This has not happened so far since the introduction of the Codex.
All in all however, the process of enforcing compliance is not clear in the Danish case
as enforcement has yet not been necessary. The system of actual sanctions is thus not
well-defined at this time. The most commonly applied sanctions are simple approaches
to the senders of marketing to inform them that the advertisement is not compliant
with the codex. These instances are rare after the first implementation period, and so
far they have proved sufficient. No actual sanctions have thus been put to use.
The different actors in the value chain judges whether an advertisement is compliant
with the Codex. According to the Codex two things are to be taken into account:
whether the advertisement 1) contains high degrees of sugar, fat and salt, and 2) if
the media is directed at children under 13 years old. A guide with exact definitions is
available to the actors in the supply chain.
2 . 3 . 4 H o w ef fe ct iv e d o y ou f ee l t h is p ra c t ic e i s in c on tr i bu t in g t o a g oo d r eg u la t i on
o f fo od a d ve r t is in g a i me d a t ch i l d re n? P l ea s e e x p la in.
Oxford Research views the Danish model of industry led self -regulation is a very
effective model in terms of resources and prevention of marketing of unhealthy food
products to children.
The Danish Veterinary and Food Administration views the self -regulatory model as a
very cost-efficient model for the Administration. From their perspective, the model
solves 70-80% of the problem with marketing of unhealthy food product to children,
but does so with a minimal drain on governmental resources. The administration is
relieved of the responsibility of maintaining the model and answer questions to the
industry in cases of doubt.
The Forum also views the Danish model as cost-effective on their side. The
responsibilities of monitoring and informing their members has become an integrated
part of the Forum partners work and generally falls in line with the daily work of these
member organisations. Having developed the model themselves, the Forum expressed
a proud attitude to the fact that they were able to take a social responsibility on the
subject of children’s health without having to be forced by legislation. The Forum
furthermore added that this industry led model was much more effective in monitoring
the media landscape for marketing that violates the Codex, than a governmental
board would have possibility to be. This stems from the partnerships broad contact
with the whole value chain of marketing, and the fact that the industry discusses the
Codex and potential violations internally.

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This last aspect on the Forums discussions of violations of the Codex also makes the
Danish self-regulation cost-effective. This brings member organisations from the
marketing value chain together to discuss the limits of marketing to children. During
so, the Forum observed that the member organisations took responsibility for their
member enterprises priorities in monitoring that other parts of the value chain did not
violate the Codex. The partnership thus has an eye on each other to a certain degree,
and will point out any marketing that violates the codex. These mechanisms also
happen at enterprise-level. This self-regulation in practise is viewed across industry
and governmental institutions to be far more effective in monitoring the marketing
than a governmental monitoring based on top-down legislation can ever be. This point
was echoed as a positive and unintended effect of the self-regulatory model by all
interviewees.
Marketing in Denmark generally adheres to the Codex. It is both true that marketing
of unhealthy food products to children has never been as great as in many fellow EU
Member States, and that the implementation of the Codex has had an immediate
effect in decreasing the number of this marketing. Interviewees ranging from industry
to government representatives all expressed satisfaction with the Danish model in
terms of effectiveness in solving the problem and cost-effectiveness in relation to
resources. The industry has expressed satisfaction with the model that balances their
social responsibility with the commercial freedom of speech on the field. The Danish
Veterinary and Food Administration view the Codex as largely prevent ing marketing of
unhealthy food products to children using a minimal of governmental resources. The
Danish Consumer Council, standing outside the partnership, has expressed positive
views concerning the final Codex, but critical to specific elements (see
“Statusrapport”).
The effectiveness of the Codes is, in part, viewed as a result of the monitoring at each
level of the value chain. The Danish Food and Drink Federation monitors members
webpages, the Danish Association of Communication and Creative Agenc ies monitors
the advertising industry, and the media organisations monitors the content of their
media platforms. The uninteded effect of the partnerships monitoring of each others
members marketing campaigns has further secured an effective monitoring mod el.
Instances of violation of the Codex has showed a very smooth system based on
information and dialogue between the forum and the violators, which has been
completely effective in readjusting the marketing to adhere to the Codex.
Oxford Research views the Danish industry led and self -regulating model as highly
effective and highly cost-effective. It has close to eliminated marketing of unhealthy
food products to children under 13 years of age in Denmark, without an excessive use
of ressources. The industry represented by the Forum did not express the work of
maintaining and monitoring adherence to the Codex as an burden, but as a desirable
model comparaed to governmental legislation. It must be noted that the industry did
take initaitive and continues to develop the Forum in respect to the possibility that the
government administration might legislate on the area if they deem the current
practice ineffective.
It is widely agreed that the self-regulating model creates a mental attitude among the
industry that is more proactive and determined to make an impact in reducing the
marketing of unhealthy food products to children, than they would have if they were
subject to top-down legislation.

20

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Oxford Research views the Codex as having had an effect on the area, but this is also
to be seen in the context of the rather limited marketing of unhealthy food products in
Denmark in general.
2 . 3 . 5 H a v e th er e b e en a ny o bs ta c l es o r cha l l en ge s en co unt e re d i n de v el o p in g a nd
i m p l em en ti ng th i s a p pro a ch t o re gu la t ing f oo d a dv e rt i s ing a im e d a t
c h i ld r en?
The challenges in initiating and developing the self-regulative model stems from
disagreement in the criteria to be used in the Codex. The Danish Veterinary and Food
Administration expressed concern with the differences in criteria for sugar, salt and fat
in different food categories. Their concern was mainly that producers could market
their product in a different food category, if their product was judged ‘unhealthy’ in
one food category. Furthermore, they questioned the definition of children as under 13
years old, discussing whether 15 years of age might be more fitting. Finally, they see
an ideal model viewing marketing in a broader perspective than the marketing i n
media alone.
Additionally, it posed a challenge, and was ultimately unsuccessful, for the Forum to
include the Danish Consumer Council and The Danish Association for Patients in the
development in the codex due to too big of a gap in definitions of cri teria for the
Codex.

2.4

Transferability

2 . 4 . 1 D i sc us s ion o n t ra nsf e ra b i l i ty o f a pp ro a ch
The Danish model of voluntary self-regulation is in principle easily transferable as it is
very light on ‘hard structure’ like financial requirements and legal prerequisites.
However, it does rely heavily on a set of ‘soft’ contextual factors to function. It
requires willingness in mind-set and attitude for all partners (the marketing valuechain and government administration) to have an open dialogue on the area. This
requires the industry to be willing to discuss limiting their marketing reach. It also
requires the official legislator’s willingness to trust that a loose model of self regulation can solve the problem, and a trust that industry can participate in
formulating the principles behind a Codex without losing sight of the problems to be
solved. Interviews pointed to the Danish tradition of dialogue between industry and
government as an important contextual factor for the success of the self -regulatory
approach in Denmark. The dialogue has created an understanding between industry
and government based on trust. Interviewees all hints at this tradition for dialogue
and trust as a prerequisite for the self-regulatory model to work.
Experts (Professor Birgitte Tufte, CBS in “Statusrapport december 2010) have also
spoken of these trends as typically Danish, seeing it as another example of a Danish
way of promoting dialogue and information before strict legislation. This should point
to the fact that the model is not readily transferable as it is rooted in a historical
framework of dialogue and engagement between industry and government, which is
vital to its functioning.
These factors have been made possible by an established tradition in Denmark of
collaborating across boundaries and previous good experiences for the government to
use a voluntary and holistic approach in solving complex challenges like childhood
obesity.

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Additionally, the Danish model was made possible by a strong initiative from the
branch organization Danish Industry Food Products that had the capacity to act as
initiator and secretariat of the Forum of Responsible Food Marketing Communication.
If this model is to be transferred, Oxford Research views it as vital that the full value
chain of marketing is involved in the development and continued monitoring of the
market. This has been one of the key factors to success in the Danish model.
The factor that made the industry develop a Forum on Food Product Advertising was
the possibility that legislation would be developed on the area. This had been the key
contextual factor that made the industry take action.
Oxford Research considers the model of voluntary self-regulation as an example of a
successful model. The principles of self-regulating ensures a very efficient and
dynamic model that can readily respond to shifting trends in the media landscape. It
also ensures a high degree of commitment and engagement from the full value chain
to the current Codex, as well as a dynamic model that can act when new m edia
platforms emerge.
2 . 4 . 2 P ot en t ia l o bs ta c l es t o tr a n sf er r in g th is a p p r oa c h to ot he r na t i ona l con te xt s
To be successfully transferred, it is important to note the key points that made the
model succeed in Denmark: established and trustful dialogue between industry and
government, a strong industry initiator and alluring government legislation on the
area.

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3
3.1

Finland
Description of Current national approach to regulating food
advertising aimed at children

3 . 1 . 1 H o w is f oo d a dv e rt i si ng to wa rd s c h i ld r en d ef ine d in th e cou nt ry? Do di f fe r en t
a c to rs u se d i ff e re nt d efi n i t ion s?
Consumer Protection Act (38/1978) and National Food Act (23/2006) constitute the
legislative framework for food advertising aimed at children in Finland. The advertising
in general is also monitored by Finncham through the Ethical Council of Advertising,
who follow the guidelines of International Chamber of Commerce (ICC), Finnish
Competition and Consumer Authority, The Consumers’ Union of Finland and The
Market Court. There aren’t specific laws for food advertising towards children, instead
laws of Consumer Protection Act and the articles of marketing of Food Act concentrate
on securing the rights of all consumers without concentrating specifically on certain
consumer groups or product types. The laws of Consumer Protection Act have
acknowledged the minor customers for the first time in 2008. Even though policies
define what is considered allowable advertising and what is considered to be
advertising against good practices, but they don’t concentrate specifically on minors.
With the term underage or minor, we mean a person who is less than 18 years old. In
practice in Finland, the advertising towards minors is divided into two different groups
based on target groups; minors in general (less than 18-years-old) and children (less
than 15-years-old).
3 . 1 . 2 S y st em o f re gu la t ion f ol l o w ed b y c ou nt ry fo r re g ul a t in g fo od a d ve rt i s in g
t owa r ds ch i l d re n
The regulation of food advertising towards children is mainly statutory regulation, but
co-regulation and self-regulation also exist. Regulation in Finland also follows the
principles of The European Charter on Counteracting Obesity, Global Strategy on Diet,
Physical Activity and Health by World Health Organization (WHO) and
FoodDrinkEurope. Many other parties, such as Finnish Competition and Consumer
Authority, The Consumer’s Union of Finland, The Mannerheim League for Child
Welfare, Ombudsman for Children in Finland and Finnish Food and Drink Industries’
Federation and Finnish National Board of Education have presented their support and
their own guidelines based on acts of Consumer Protection Act and National Food Act.
In addition the Ethical Council of Advertising and the Association of Finnish Advertisers
also have conducted their guidelines for advertising towards children. Each guideline
entails the same principles, but each organization follows their own guidelines. This
means also that each organization gives statements about advertising and
advertisements in general but also in case of laws or regulations change, or in other
relevant issues. There is no general self-regulatory code for food advertisements
aimed at children although the principles of each guideline are the same. The
regulation is strongly based on finding violations of good practices (regardless of
whether adverts are food or children focused) instead monitoring advertisements
before their launch. In Finland, generally, companies follow the regulations carefully.

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According to Finnish Competition and Consumer Authority, there are four types of
advertising that children are exposed to. (1) Either the advertisement which
advertises product for children is aimed at under-aged, but the decision to buy the
product is made by an adult. (2) Or an advertisement that is aimed at under aged
person and she/he can make the decision to buy it by her/himself. (3)On the other
hand, there is also advertising aimed towards adults, where the product itself is
targeted towards adults (such as alcohol), but also minors are exposed to it. (4) There
is advertising towards adults, the content of which can be interesting to minors.
(Finnish Competition and Consumer Authority)
In Finland, the advertising towards minors is divided into two different groups based
on target groups; minors in general (less than 18-years-old) and children (less than
15-years-old). The difference of target groups also dictates the requirements and
demands for the advertisement itself. At the end, power of decision of the parents of
shouldn’t be ignored or questioned by the advertisement (Consumers’ Union of
Finland, Finnish Competition and Consumer Authority).
Finnish Competition and Consumer Authority has stated following regulations for
advertising towards small children: It is allowed to advertise in children’s programs if
the program lasts more than half an hour, but these advert isements are now allowed
to include characters of the same children’s program shown. Advertisements that are
made with same graphic style as the program are not allowed as they might blur the
difference between the program and advertisement. Also, as the picture is in the main
role, it shouldn’t be misleading and other games, play and other entertainment must
be separated clearly from advertising (advergames). This is considered extremely
important on Internet advertising as on Internet the advertisements u sually have
bright colours and moving pictures together with interactive contents.
The main role of the advertisement can’t be given to children – only if children are
naturally linked to the advertised product. Children on the advertisement are not
allowed to present direct suggestions to buy a product or present them to other
children. Also subliminal advertising is prohibited. With food advertising aimed
towards children, one must be careful also with free gifts/toys that come with the
product itself as small children are not capable to evaluate the value of the free gift in
the same way than adults. For this reason, the free toy/gift can’t be emphasized when
advertising. This also applies in advertisements where a product is linked to
collectables, as collecting might become the main reason for a child to want certain
product.
Nowadays in Finnish schools and academies might have vending machines for pupils
and students to buy beverages and snacks. Sometimes the vending machine already
might include some advertising. Same rules of food advertising aimed towards
children apply also on vending machines. For this reason Finnish Competition and
Consumer Authority, Finnish National Board of Education and the National Public
Health Institute of Finland have set recommendations on what the vending machines
of schools should sell. Advertising shouldn’t give faulty image of the wholesomeness of
the food. (Finnish Competition and Consumer Authority)
In general, audio-visual advertising shouldn’t cause physical or moral harm to minors
and it shouldn’t contain direct requests or orders to buy a certain product. Audiovisual
advertising shouldn’t take advantage of inexperience or credulity of minors or
encourage them to persuade their parents or other people to buy advertised goods, or
take advantage of the position of trust of guardians, teachers or other people.

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In addition it shouldn’t be presenting minors in dangerous situations without a reason.
All these actions are considered to be against good practices of adve rtising.
(Consumer Protection Act, 2 § 29.8.2008/561)
When considering the target groups of food advertising towards children, also parents
and legal guardians are affected. Advertising is considered to be against good
practices if it disregards the responsibility and possibility of parents to act as
educators for their own children, or if it takes advantage of inexperience or credulity
of minors. Suitable advertising is decided based on the age of minors reached by the
advertisement and their level of development with other conditions. (Consumer
Protection Act, 2 § 29.8.2008/561.)The most important part about advertisement
towards children is to make sure that the commercial meaning is clear – the children
understand the commercial purpose of advertising only when they are about 8 years
old (The Consumers’ Union of Finland). Other parties affected by regulation of food
advertising towards children are f. ex. the Association of Finnish Advertisers and the
producers of food.
The actors involved in the implementation processes are mostly consumer protection
groups, health institutions and other NGOs. They have been the actors who have
created the definitions of policies and specified which kind of advertising is acceptable,
if the advertising is aimed towards children.
3 . 1 . 3 W h en wa s th e a p p roa ch i mp l em e nt ed
The last component of this approach came into force in 2008.

3.2

Context in which the current national approach was developed
and implemented

3 . 2 . 1 P ro b l em r ec og n it i on
Main objective behind the regulation of food advertising towards children has been the
growing concern for adolescents and childrens obesity that is increasing with alarming
rate, and for their health. Finland, as a member of WHO, has agreed to follow WHO’ s
strategies of 2004 to challenge obesity and to promote healthy nutrition and exercise.
Healthy nutrition and exercise have been seen more likely to improve national health
than any other remedies. After 2004, Finland has paid additional attention on heal thy
nutrition, especially among adolescents and children as studies have shown that early childhood obesity is linked to obesity in later stages of life, which causes not only
severe health problems but also social difficulties. The Consumers’ Union of Fin land
has also stated that food advertising is also one direct reason for obesity and
overweight, with lack of exercise and unhealthy nutrition. For these reasons, also food
advertising aimed especially towards children has been under scrutiny. (The
Consumers’ Union of Finland).
According to The Consumers’ Union of Finland minors are liable to impressions and to
the influences of advertising. Children usually don’t have needed skills to separate
advertisements from reality and they don’t have enough information about the health
problems caused by excess sugar, salt or fat. Food advertising aimed towards children
also causes pressure to parents who should have the right and the responsibility to
decide about acquisitions of the family. Usually advertising als o creates images of
trendy lifestyles and ways of life which might be unhealthy, that advertisers want
consumers to keep after becoming adults. (The Consumers’ Union of Finland)

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25

This approach to regulate food advertising aimed at children connects several policy
areas such as health policy priorities and consumer protection. Especially important
are health policy priorities such as obesity that is becoming more common among
adolescents and children, and it causes severe health problems at later stages of li fe.
3 . 2 . 2 D o es th i s a p pr oa c h t o re g ul a t in g fo od a d ve rt i se m en ts a i m ed a t ch i l dre n
c on ne ct w it h pr i o r it i es f r om ot he r p o l icy a r ea s?
The organizations that started giving guidelines how to design food advertising
towards children were Finnish Competition and Consumer Authority together with The
National Public Health Institute of Finland although their guidelines follow guidelines
set by WHO in 2004. Based on these guidelines also legislation of Finland was
modified in 2008, to state that it is agains good practices of advertising to effect to a
child in a negative way. (Finnish Competition and Consumer Authority, The National
Public Health Institute.) There has been no major changes to the regulation in
response to the WHO 2004 strategies.
3 . 2 . 3 W h ic h a cto r s o r o rga n isa t i on s a r e re sp on s ib l e fo r in it ia t ing t he cu r r ent
o r ga n is a t io n of fo od a dv e rt i si ng a im ed a t ch i l dr e n?
Current approach of regulating food advertising aimed at children has been
developed by following WHO’s strategies to challenge obesity (2008) but already
in 2004 Finnish Food and Drink Industries’ Federation set relf -regulation guidelines
for advertising aimed at children based on guidelines of ICC. In 2008 an article
was added to national Consumer Protection Act that targeting advertising, that
exploits inexperience and credulity of children, harms their development or
questions the right of parents to raise their children, is against good practices.
Nowadays Finland is trying to protect adolescents and children also in Internet,
but establishing regulations and laws specifically for that area has been difficult.
3 . 2 . 4 D e ve l o pm ent o f th e a pp r oa c h: w hi ch co nt ex tua l fa c to rs inf l ue nc ed t he
d e ve l op m ent o f t he c urr e nt a p p roa ch to r e gu la t i ng f oo d a dv e rt is i ng a im e d a t
c h i ld r en?
Political factors affecting national policies on food advertising towards children are
mostly concentrating on children seeing food advertisements of products that are
targeted for adults and special concern has been paid to advertising alcohol.
Currently in Finland direct and indirect advertising and sales promotion of spirits is
prohibited and products can be presented only with a price list, but advertising
mild alcohols has been allowed since 1995. In 2015 the legislation of advertising
mild alcoholics will change and advertising of mild alcoh olics is limited in public
places and alcohol advertising shouldn’t be linked to games, lotteries or
competitions. According to the Ministry of Social Affairs and Health the legislation
is changed mainly for reducing situations in which children and young are exposed
to advertising of alcohol. The Ministry of Social Affairs and Health has considered
that according to several surveys, being exposed to alcohol advertising advances
the age of starting to drink alcohol, increases the consumption of alcohol and
increases drinking aiming to intoxication. Use of alcohol among minors also
increases risks of violence and accidents, harms the development of the young,
and prefigures addiction and excess consumption of alcohol in later stages of life.
(Ministry of Social Affairs and Wealth)

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Alcohol policies have been always debated subject in Finland both in politics as
among consumers and the regulation of alcohol and advertising have always
received a lot of attention. Some people argue that regulation is too paternalistic
but others agree with it and believe that regulation is needed to improving the
health of the nation.
Also the regulation of sweets, ice-cream and soft drinks has caused a lot of
discussion. In Finland additional taxes have been added to products that fall under
these categories and this is reflected in the price of the products. (Ministry of
Social Affairs and Wealth) These taxes could have been set by keeping health
benefits is mind, but Finnish Competition and Consumer Authority has questi oned
the purpose of them as the health benefits have only been weakly justified. Most
likely taxes has been set for the reason that sweets and ice -cream are popular
products especially in Finland, and collecting taxes on these products has
increased the tax income of the state.
Finnish Food and Drink Industries’ Federation has represented interests of food
and drink industries in Finland for years and it has 270 member companies. Food
and drink industry is the fourth biggest industry in the country and its gross
production value is valued at EUR 11.6. Largest food and drink industry sectors in
Finland are meat processing, dairy farming and bakery products. Dairy products
and ice-cream cover almost 25% of the whole production, meat processing covers
23% and other food including sugar, candy, chocolate, cocoa and convenience
food that covers 15 %. Finnish Food and Drink Industries’ Federation has agreed
to follow the European food industrys principles of ethical marketing. (Finnish
Food and Drink Industries’ Federation.)
In Finland, every 5 th person is overweight. Since 1970’s the amount of overweight
men has increased and since 1980’s the amount of overweight woman has
increased. Although the development has slowed down, obesity is still a major
problem in Finland especially among children, whose obesity has become more
common. (National Institute for Health and Welfare.)
In Finland, overweight of 12-18-year-olds has become threefold in last four
centuries and the obesity is more severe than before. According to School Health
Promotion study 20 % of 14-15 years old boys are overweight and of the girls of
same age, 13 % are overweight. In high school, 18 % of the boys and 11% of the
girls are overweight and in professional institutes, 26 % of the boys and 17 % of
the girls are overweight. Study suggests that overweight is more common in
countryside than in population centers. Childrens’ obesity is also linked to the
socioeconomical status of the parents; overweight is more common among
children whose parents have less education. (National Institute of Health and
Welfare.)
Promoting healthy lifestyle is also important from the point of view of the welfare
state, as obesity causes several health problems such as type 2 diabetes. In
Finland, even younger children get diabetes than before. Healthy lifestyle also
includes exercise and this recommendation has been added to Nutrition
Recommendations 2014 of The National Nutrition Council of Ministry of Agriculture
and Forestry. (The National Nutrition Council)

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27

What comes to regulation of food advertising towards children when advertising is
online or outside of traditional media channels, the regulation doesn’t change. The
difference between online marketing and marketing in general has been
recognized, but online marketing of food towards children isn’t regulated with
specific legislation or articles. Same principles of marketing apply no matter if the
advertising is aimed towards children and no matter the media channel.
The Consumers’ Union of Finland has stated that in online marketing games, and
other entertainment must be clearly separated from advertising content and they
shouldn’t be interrupted with advertising. If the entertainement is sponsored, the
name of the sponsor has to be mentioned but advertising of the sponsor that
might interest children is not allowed. Internet pages for children usually have
services with what children can connect their friends, such as e -cards or messages
– these messages should not have advertising included. (The Consumers’ Unio n of
Finland 2014).
It is also important to consider the role of media education in Finland. Finnish
Society on Media Education’s (Metka’s) aim is to develop and support the field of
research and practices concerning media education. Media education is us ually
merged together with first language education. During the education, children and
adolescents learn how to read advertising and evaluate advertising from an
objective point of view. The main goal of the media education is to attain critical
media literacy. (Metka)
Through Metka Media Education center, media education can be provided even to
children less than 8-years old. Other parties, such as parents and teachers can
also learn, why media education is so important. Media education material is also
provided by several other institutions such as the Mannerheim League for Child
Welfare and Save The Children –organization. Media education has been seen as
essential part of early childhood education as it should build understanding on how
to read and interpret advertising and what ways of influence it uses.
3 . 2 . 5 I mp l em en ta t i on of t he a pp r oa ch : h o w wa s th i s d on e ?
The advertising principles for food advertising towards children are same
principles and guidelines that are set to any advertising towards children. As
mentioned before advertising that abuses the inexperience of children and their
lack of understanding of boundaries between reality and advertising is considered
to be agains the good practices of marketing. The main purpose of the Consumer
Protection Act is to prohibit advertising that can be considered inappropriate and
misleading from the point of view of the consumer (Virtanen 2010).
The authority making sure that the Consumer Protection Act is followed is
Consumer Ombudsman, who works under the Finnish Competition and Consumer
Authority. When inappropriate advertising has been brought to the attention of
Consumer Ombudsman, he tries to convince the trader to stop using the
advertising voluntarily. The trader can also give his/her statement about th e
controversial advertising, in case he feels that the standpoint of Finnish
Competition and Consumer Authority is different than his. If traders opinion is
justified well or the advertising is stopped, the matter is settled. In case the
matter isn’t settled, Consumer Ombudsman can continue investigating the matter.

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Consumer Ombudsman can prohibit the trader to continue inappropriate advertising or
give a notification to the trader. Last option for the Consumer Ombudsman is to
prohibit all advertising of the trader, and heighten the ban by setting a fine. (Virtanen
2010)
The Market Court handles most cases linked to advertising that is against Consumer
Protection Act. The cases go through The Market Court in 3 cases: (1) if Consumer
Ombudsman is dealing with advertising that is so substatial that he himself cannot
ban the advertising or (2) if the trader has opposed the ban set by Consumer
Ombudsman or (3) if consumer associations wants to ban advertising that hasn’t been
agreed with Consumer Ombudsman. In Finland the last case is almost impossible to
happen as there aren’t as strong consumer associations in Finland that would have
enough resources to fight a case in The Market Court. The Market Court is the
strongest party to apply sanctions, such as heavy fines and other sanctions, when the
consumer ombudsman can only prohibit the trader to continue inappropriate
advertising or give notifications and set a lighter fine. Although the consumer
ombudsman is the party that can define what is considered to be inappropriate
advertising when The Market Court cannot do that.
The Consumer Ombudsman is the person who is mainly responsible for monitoring the
advertising content, but rather being an active monitor, the consumer ombudsman is
the party to whom consumers can turn if they have noted inappropriate advertising.
Also FCCA can receive notifications from consumers about inappropriate advertising,
but it mainly concentrates on issues of competition. It is though important to know
that the consumer ombudsman works under FCCA and concentrates on securing the
rights of the consumer and monitors that the Consumer Protection Act and other
regulations are being followed.
According to our interviewee from The Consumers’ Union of Finland, the initiative for
controlling food advertising towards children has been strongly based on guidelines of
WHO and European Union, and the initiator who would have been especially active on
this isn’t clear. It almost seems that the guidelines have been applied in Finland only
for following the guidelines, but not for actually and actively improving the control of
food advertising towards children. The same has happened with objectives as they
have been formed based on guidelines of other organizations that want to improve
health, but applying the objectives actively hasn’t happened although all the parties
involved in controlling the advertising aimed towards children agree on the importance
of it. Many organizations and insitutions, such as several NGOs, consumer unions,
industry associations and media associations, have given their instructions of food
advertising towards children based on the principles of WHO. (Marniemi.) In contrary
to interviewee of The Consumers’ Union of Finland, the interviewee of Finland
Chamber of Commerce saw the regulation of advertising very extensive, as it covers
all the medias. (Paloranta)
There hasn’t been a specific budjet on controlling advertising aimed towards children
as the main investments seem to have been the actual guidelines. Although there a re
several actors controlling the advertising, there isn’t any actor that controls the
advertising more proactively. According to our interviewee from The Consumers’ Union
of Finland, most complaints usually come to The Consumers’ Union of Finland or to
Finnish Competition and Consumer Authority from consumers. This also means that
there isn’t a specific budjet for controlling the advertising towards children as several
parties are held responsible for it, but as a part of their job with other duties and no t
proactively.

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29

Current organizations that represent and control food advertising aimed towards
children haven’t changed since 2008 when minors were considered in the regulation of
advertising. There hasn’t been any changes to the regulation and guidelines.
According to our interviewee from The Consumers’ Union of Finland, there is a clear
need to adapt these guidelines to the present for reaching better also the modern
media such as social media and games and Internet. (Marniemi.)

3.3

Evaluating the outcomes and effectiveness of policies

3 . 3 . 1 H a s th e re b e en a ny r e vi e w /e va lua t ion o f t h e a p p ro a ch s o fa r?
This far in Finland there are several actors following the regulation of advertising,
but there isn’t any actor that would monitor proactively advertising in genera l.
There is also a lack of critical evaluation of the approach and it is not clear if
regulating the food advertising aimed towards children has helped to reduce
obesity rates or improved health of children. The compliance of the guidelines and
laws are monitored by several organizations mentioned before such as The Market
Court, Consumer Ombudsman, Finnish Competition and Consumer Authority and
The Consumers’ Union of Finland. Although in Finland not many organizations have
received the prohibition to advertise at all, but many advertisements have
received a notification from the Finnish Competition and Consumer Authority to
stop using certain advertisement as it has been breaking the principles of good
practices. Usually the matter has been settled at this point and recently there
hasn’t been many advertisements breaking the rules. (Paloranta.)
3 . 3 . 2 I s th er e a ny sy st em f or mo n it or i ng th e ef fe ct of t hi s a p pr oa c h t o r eg u la t i on?
I f so, wh i ch o rga n isa ti on s or a c to r ca r r i es th i s o ut?
(Please see Section 3.2.5 on Implementation of the approach)
3 . 3 . 3 H o w is c om p l ia nc e w it h th es e r eg u la t io ns m on it o re d a nd e nf or c ed? W ha t
s o rts o f con se qu en c es o cc ur if a n o rga n i sa t i on/ e nt e rp r is e do e s n ot f oll o w
t he re gu la to ry r u le s in p l a c e?
(Please see Section 3.2.5 on Implementation of the approach)
3 . 3 . 4 H o w ef fe ct iv e d o y ou f ee l t h is p ra c t ic e i s in c on tr i bu t in g t o a g oo d r eg u la t i on
o f fo od a d ve r t is in g a i me d a t ch i l d re n? P l ea s e e x p la in.
When considering the efficiency of this measure, it is effective in regard to applying
guidelines and laws for advertising in general. Actors that make sure that guidelines
and laws are being followed, have also other tasks, so that they don’t concentrate
only on following the content of advertising. In this way, it is very efficient from
financial and human resources point of view as the regulation doesn’t require many
resources. On the other hand the measure lacks efficiency because no actor is
following proactively that the guidelines and laws are really followed. As mentioned
before, in Finland mostly the consumers pay attention to advertising and they are the
ones to complain about marketing that is against good practices. According to
interviewee from The Consumers’ Union of Finland, there should be more proactive
institutions in following advertising not only on traditional media but on new types of
media as well.

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One obvious success factor is that based on the guidelines of WHO and European
Union, the acts of the Consumer Protection Act have been updated and many other
important institutions have adopted these guidelines as their own. This means that
adopting the guidelines and laws has been easy and efficient and many actors have
agreed to follow them. One important aspect to be improved is that there isn’t any
actor to follow these guidelines more proactively and measuring the efficiency of
following the guidelines hasn’t been done as extensively as it could be. It has become
difficult to follow children on Internet and even if the regulations still apply, it’s
increasingly hard to find all the channels through which children are exposed to
advertising. Controlling advertising of food aimed towards children on Internet, social
media and other new marketing channels requires very vast resources even though
the regulation of advertising in Finland has been considered media -neutral. These new
media forms also pose additional challenge for controlling the advertising aimed
towards children. It is also interesting, that according to our interviewee from The
Consumer’s Union of Finland questioned if anything should be marketed towards
children in general. (Marniemi.)
3 . 3 . 5 H a v e th er e b e en a ny o bs ta c l es o r cha l l en ge s en co unt e re d i n de v el o p in g a nd
i m p l em en ti ng th i s a p pro a ch t o re gu la t ing f oo d a dv e rt i s ing a im e d a t
c h i ld r en?
It is important to notice that the guidelines and laws have worked well without
proactive monitoring of the practices because in Finland people are in general very
law-abiding. They follow the rules and laws applied and it is not very common to break
the rules, even if there wouldn’t be very severe repercussions for certain actions. For
this reason, the way of controlling the advertising in Finland has been arranged can be
considered efficient as it is followed relatively well.

3.4

Transferability

3 . 4 . 1 D i sc us s ion o n t ra nsf e ra b i l i ty o f a pp ro a ch
The measures of controlling (food) advertising are media -neutral in Finland, which
means that they can be applied to any media. This is also seems extremely efficient,
as there aren’t different rules and regulations to each type of media, and this type of
approach also increases the flexibility to apply the law to any new situation, media or
environment. According to the interviewee of Finland Chamber of Commerce, Finland
also follows the regulation applied by ICC very carefully. ICC regulation hasn’t been
separately customized to Finnish Legislation, but they are rather used intertwined and
the problems are solved case by case.
The regulation of advertising in Finland is also considered to be very general as there
isn’t regulation for each type of product such as food, but the regulation applies to all
the advertising, no matter if one is advertising products or services. All the
interviewees considered the Finnish approach to control advertising as culture-neutral;
it could be applied to any other country also, but in case the regulation of advertising
is very detailed, it could be more difficult to apply more general approach.
Financial requirements for this type of regulations are not substantial and this was
agreed with the interviewee of the Ethical Council of Marketing. The only costs are
based most likely to the change of legislation, but as the general guidelines apply to
all the situations and all the media, the details won’t be a burden to the budget.
Interestingly, Finland has also adopted the marketing guidelines of ICC, but it hasn’t
changed the guidelines to Finnish culture, they have been kept untouched.

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31

According to the interviewee of the Ethical Council of Marketin g, other countries
following the guidelines of ICC have applied them by modifying them closer to the
culture and legislation of each country, which has needed additional financial
requirements.
3 . 4 . 2 P ot en t ia l o bs ta c l es t o tr a n sf er r in g th is a p p r oa c h to ot he r na t i ona l con te xt s
The fact that Finland follows ICC guidelines and has put together a media -neutral
legislation, applying to all the media and advertising, makes the other capacity
requirements minimal. Only setting up the guidelines can be considered labori ous, but
otherwise the process itself is relatively straightforward. In this light, also the legal
and institutional requirements are relatively small. Once the laws have been set as
media-neutral and applicable to all products and services, there is no ne ed to specify
legislation to apply to different cases or situations as the same principles are always
valid.
The key feature of this approach that make it easily transferable is the fact that it isn’t
tied strictly to the culture or cultural norms, or to a certain media or certain products
or services, but the regulation of advertising applies to all advertising, to all consumer
groups and advertisers and it is media-neutral. The only obstacle would be the fact,
that the Finnish approach to the regulation of advertising is so flexible, that it might
not work in a country, where the regulation in general is very detailed at the moment.

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4
4.1

France
Description of Current national approach to regulating food
advertising aimed at children

4 . 1 . 1 H o w is f oo d a dv e rt i si ng to wa rd s c h i ld r en d ef ine d in th e cou nt ry? Do di f fe r en t
a c to rs u se d i ff e re nt d efi n i t ion s?
In the two charters aiming to promote healthy food behaviors and physical activities
conducive to health, we find that the approach to regulating food advertising aimed at
children is based on these definitions.


Food advertising: all types of advertisements representing eating behaviours.
Every food sector is concerned by. Source: AARP (professional regulator
authority of advertising grouping advertiser, advertising agencies and
medias);



Children: 3-11 years old. Source: PNNS (Health and Nutrition National
Program).

When signing charter, signatories accept definitions specified in the charter. There is
no disagreement or discussion on this.
However, some actors, among which industry actors, use a less precise definition for
ads diffusion rules. They use two criteria:


1- ads with children acting;



2 -ads dedicated to children. This second criteria is not defined more
precisely. There is no definition of how a commercial qualifies as ads dedicated
to children.

4 . 1 . 2 S y st em o f re gu la t ion f ol l o w ed b y c ou nt ry fo r re g ul a t in g fo od a d ve rt i s in g
t owa r ds ch i l d re n
The current national approach to regulating food advertising aimed at children is
defined in a charter signed in 2013 for a period of 5 years (2014-2018). Its aim is to
promote healthy eating and activity, physical health promotion in programmes and
advertisements broadcast on television.
It continues, specifies and completes the objectives of a first charter, signed in 2009
for the period of time 2009-2013 called the “Charter to promote supply and a
favorable physical activity to health in programs and advertisements broadcast
television”.
The second charter has expanded the scope of work of the first one by including new
programme distribution methods (Internet, TV called "catch up", delayed viewing) in
addition to traditional TV broadcast. It also now concerns 36 channels (TNT,
ultramarine television and local television...) compared to 19 previously. It concerns
advertising broadcasted on television, video-on-demand ("VOD"), (whether in
dedicated services or Websites headings), Catch-up TV services ("Catch-Up TV"),
online services offering audiovisual content, professionals and "editorialized" services.
The second charter was signed by 33 structures, among them 6 ministries of
government, 16 media groups or media associations, 1 association of communication
agencies, 6 advertisers or associations of advertising producers and 2 food industry
association.

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33

France has adopted a system of self regulation.
Since 2001, public authorities established thePNNS (Health and Nutrition National
Program). It aims to:


Reduce obesity and overweight in the population;



Increase physical activity and reduce sedentary lifestyles for all ages;



Improve dietary practices and nutritional intake, especially among at-risk
populations;



Reduce the prevalence of nutritional diseases.

One of the ways to achieve these aims is to reduce the effects of advertising pressure
by continuing reflections in order to succeed in limiting the advertising pressure on
children for the consumption of foods which are fatty,sweet, orsalty. Two
complementary ways exist to achieve it: regulating ads contents and regulating ads
diffusion.
1.

First attempt regulating ads diffusion:

Self regulation had begun before the signature of the first charter in 2009 by trying to
regulate ads diffusion. Since 2004, the ANIA (National Association of food industry)
has recommended its adherents to begin with eradicating food ads directly associat ed
with children programmes on TV except if those ads are for goods with nutritional
interest.
Some unions (such as those for chocolate or sweets) ask their members to stop
promotion during children’s programmes. Ferrero for instance, defines a rule to: not
promote foods products when a TV program is watched by an audience constituted by
at leat 25% of children of less than 10 years old.
In 2006, the Higher Audiovisual Council (CSA) adopted a recommendation for television
service editors, forbidding a programme dedicated to children from being interrupted,
proceeded, or followed by advertisements for products or services using the image of the
programme protagonists. Thus, the message can’t be broadcast in the last position in the
break before the start of the work and first in the screen of the end of the work.
The main problem of this attempt to self regulate ads diffusion is that it is based on
recommendation. Nothing was made compulsary and there were no regulation
procedures. Each food industry actor does what he expects it to be advantageous to
do.
2.

Second step: regulating Ads contents:

In 2009, the Health Ministry found the results of such engagements insufficiant to
reduce obesity and overweight in children. Therefore the French Ministry of Health
envisaged the elimination of advertising for food products around children's
programming at the time children are in front of tv.

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The audiovisual sector and the Higher Audiovisual Council (CSA 3) responded by
explaining that the removal of food advertising would undermine the economic model
(which irrigates cinema, fiction, animation, sports etc.), or even the sustainability of
many television channels.
Negotiations following this resulted in a compromise with the first charter to promote
nutrition and physical activity in health-promoting programmes and advertisements
broadcast on television. Therefore, the focus of self-regulation changed from ads
diffusion to ads contents.
The ads diffusion topic is not written in the two charters of 2009 or 2014 but
remains an objective for self-regulation coming from the food industry alone.
The first charter was signed in February 2009 for a period of five years and the second
one was signed in December 2013 to continue, specify and complete the objectives of
the first charter. The second charter covers the period 2014-2019 and the first
commitment is related to food advertising towards children even if it is wider than the
specific age group. In this commitment, it is written that:
Advertisers are committed to enhancing the "quality" approach to advertising
on the content of food advertising.
Advertisers (by ARPP 4) agree to a reassessment of ethical rules on the content
of advertisements aimed at children in the light of their new advertising
undertaking. This reassessment should in particular consider the following
topics:
- Updating the development of good eating habits and lifestyle;
- Attitude and vocabulary limits of humor with respect to a child audience;
- Reference to equivalence and nutritional comparisons with fruits and
vegetables etc…;
- Directed messages (not maximalists’ presentations and performances related
to the product, rigorous staging of components of the product ...)
- Relations with educators and parents (respect for authority etc.);
- Guidelines to the attention of traders on communication on nutritional
guidelines of the National Health Nutrition Program.
After the consultation work and writing required to finalise these rules,
advertisers will present the new text to the Ministry of Health and Sports, and
the Ministry of Culture and Communication. This proposed reassessment must
be made within a maximum of 6 months to the Ministry of Health and Sports,
in consultation with the Ministry of Culture and Communication.

3

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Created by the law of 17 January 1989, the Higher Audiovisual Council (CSA) is to ensure the freedom of
audio-visual communication France. It has broad responsibilities, including: protection of minors, respect
for the pluralist expression of opinion trends, organization of election campaigns on radio and television,
rigor in information processing, allocation of frequencies to operators, respect for the dignity of the human
person, consumer protection. In addition, the Council is responsible for "ensuring defence and illustration
of the French language and culture" on antennas. More recently, it has received new assignments: making
television programs accessible to people with hearing or visual disability; ensure representation of the
diversity of our society in the media; contribute to actions for the protection of health. CSA consists of
a college of nine members appointed by decree of the President of the Republic. Three of them, including
the President, were appointed by the President of the Republic, three by the President of the Senate and
three by the President of the National Assembly. The Council consists of senior clerks of the State,
journalists and audiovisual professionals.
Professional regulator authority of advertising grouping advertiser, advertising agencies and medias, which
has signed charters.

35

In December 2013, a new charter was signed because the first charter was coming to
an end. The scope of work was expanded by including new programme distribution
methods (Internet, TV called "catch up", delayed viewing). The charter now concerns
36 channels (TNT, ultramarine television and local television ...) compared to 19
previously.
The main interest of such charters is not to emphasize food ads exclusively, but try to
work on the ways TV programs and ads can promote food behaviours conducive to
health. In the first charter, in addition the the first commitment, there were seven
others. In the second charters, there were fourteen.
In the charters, the AARP 5 elaborated a collection of ethical rules submitted to the
Ministers in charge of health and culture. Advertising must:
- Still represent a balanced meal;
- Not encourage excessive consumption;
- Oppose snacking;
- Not to represent a scene in front of screen consumption within a household
(this rule can rule any image that would combine the consumption of food and
beverages to a sedentary leisure-related vision Screen.
The code of practice also reinforces the prohibition of advertising featuring children, or
for children, which would leave them believe that taking a food can produce an effect
of nature making them access exceptional performance.
Finally, the advertising should not devalue or minimize authority or undermine adults
surrounding consumer products, in terms of children, or suggest their resignation.
This charter concerned television (national or local, generalist or thematic). Since
2014, 36 notional chanels plus local chanels. It concerns linear TV + internet websites
of those channels and television on demand.
For both charters, the regulation is shared by public and private actors . The AARP
(professional regulator authority of advertising) defines the rules. The rules are then
discussed by public authorities (Ministries); rules are taken in place by the Union of
advertisers. The respect of rules is assessed by the CSA (Higher Audiovisual Council)
each year in a report.
4 . 1 . 3 W h en wa s th e a p p roa ch i mp l em e nt ed
In December 2013, a new charter was signed because the first charter was coming to
an end. The approach with charters was implemented since 2009 even though these
were in preperation since the beginning of 2000’s.

5

36

Op cit.

C11062

4.2

Context in which the current national approach was developed
and implemented

4 . 2 . 1 P ro b l em r ec og n it i on
The main objectives of this approach is to promote good pratices in food ads so that
ads don’t contribute to or encourage food behaviors unfavorable to health, especially
given the growth of obesity on children. This is also especially relevant for children
belonging to lower social classes who look at TV more than others.
There is a lack of data on children and teenagers’ obesity. In 2009, the prevalence of
obesity in children of 5-15 years was higher for 14-15 year old than for 5-6 years old.
Male children seems to be more concerned by obesity than female children.
Prevalence of obesity among age
Âge

Male

Female

5-6

2,9

3,3

9-10

4,1

3,7

14-15

4,1

3,8

Sources : school health surveys, French
Health Ministry, 2009. for 5-6 : school
year 2005-2006. For 9-10 : 2007-2008.
For 14-15 : 2008-2009.

Some articles write that obesity regressed among children of the upper classes and
progressed among the children of the lower classes. However, the evidence on this is
insufficient to draw definitive conclusions. For teenagers, school health surveys show
that obesity has grown on teenagers coming from household of managerial staff and
emplyees but not for teenagers belonging to workers households. Nevertheless,
obesity was higher for those teenagers.
Prevalence of obesity and weight among teenagers
Social group of
parents

Overweight

Obesity

2001

2004

2009

2001

2004

2009

Managerial staff

11,3

11,0

12,5

0,7

1,9

2,3

intermediate
professions

15,2

15,1

14,7

2,8

3,5

2,1

Farmers and
retailers

17,9

21,1

19,2

2,3

5,1

3,9

Employees

17,0

18,9

19,9

3,9

5,2

5,0

Workers

19,8

21,4

22,2

6,8

7,2

6,5

Others

23,4

21,0

17,2

6,1

3,8

3,4

Sources : school health surveys, French Health Ministry, 2009.

In France, in 2006, 10% of programs watched by children (4 -10 years old) were ads.
This is more than for adults (7%) (source: Bureau de Vérification de la Publicité).
A number of studies on advertising and children focus on misleading advertising,
children not knowing the difference between advertising and other television
programs. Children are often not able to understand the commercial purposes of
advertisements when they are under 7, 8 or even 11 years of age.

C11062

37

The impact of advertising on children's health is the subject of a large number of
international studies involving scientists concerned with the issue of childhood obesity,
including the WHO (World Health Organization). According to the French Agency for
Food Safety of food, "exposure to television advertising has a major direct impact on a
balanced diet of children. First, the time spent watching TV contributes to settle the
child. On the other hand, the proportion of food commercials aimed at children is 62%
on an averaged Wednesday. For adults, only 42% of advertisements are for food. Half
of these ads are for high-calorific products. »
By regulating the contents of ads children can watch, private and public actors expect
to contribute to better children food beheviors.
4 . 2 . 2 D o es th i s a p pr oa c h t o re g ul a t in g fo od a d ve rt i se m en ts a i m ed a t ch i l dre n
c on ne ct w it h pr i o r it i es f r om ot he r p o l icy a r ea s?
The link between food ads and health policy is explicitely written in charters and is
present since the first PNNS (2001).
4 . 2 . 3 W h ic h a cto r s o r o rga n isa t i on s a r e re sp on s ib l e fo r in it ia t ing t he cu r r ent
o r ga n is a t io n of fo od a dv e rt i si ng a im ed a t ch i l d r e n?
In the two charters, the initiating organisation is the same. The AARP (professional
regulator authority of advertising) defines rules. Rules are discussed by public
authorities (Ministries); rules are implemented by advertisers (Union of advertisers).
The respect of rules is assessed by the CSA (Higher Audiovisual Council) each year in
a report. In this way, every actor is involved and the assessment of charter impact
can be widely shared.
Debates involved Food industry, public actors and consumers associations. ANIA (Food
Industry association) and UFC-Qu Choicer (Consumer association) are particularly
actives on these debates.
4 . 2 . 4 D e ve l o pm ent o f th e a pp r oa c h: w hi ch co nt ex tua l fa c to rs inf l ue nc ed t he
d e ve l op m ent o f t he c urr e nt a p p roa ch to r e gu la t i ng f oo d a dv e rt is i ng a im e d a t
c h i ld r en?
Before the charters, rules and laws, based on European directives and agreements were
signed between operators and the Higher Audiovisual Council (CSA).
The first texts are written in the Law of 30 September 1986. It frames the appearance of the
first private television channels (Canal Plus and TV5). Advertisements shall in no case
exploit the inexperience or credulity of children and adolescents.


Children and adolescents may not be prescribing the product or service being
advertised;



They may not be key players if there is a direct relationship between them and the
product or service involved.

As noted by the CSA, "the decree prohibited the use of children and adolescents as
prescribers of a product or service and as the main actors of an advertisement for a product
not on directly, that is to say, not for family consumption or not mostly consumed by them.

38

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These provisions are being eased with a 1992 decree that incorporates the terms of Article
16 on the protection of children, from the EU Directive "Television without Frontiers" of 3
October 1989. Television advertising shall not cause moral or physical detriment to minors
and must therefore respect the following criteria for their protection:


it must not directly encourage minors to buy a product or service by exploiting their
inexperience or credulity;



it must not directly encourage them to persuade their parents or others to purchase
the goods or services;



it must not exploit the special trust minors place in parents, teachers or other
persons;



It shall not unreasonably show minors in dangerous situations.

In addition, "advertising must not cause moral or physical harm to minors. To this end, it
must not:


Directly encourage minors to buy 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;



operate or alter the special trust minors place in parents, teachers or other persons;



Submit without reason, minors in dangerous situations. "

The 1992 decree prohibits commercial breaks of programmes for children less than 30
minutes. As for Article 14, it imposes a clear separation between advertising pages and the
rest of the programs broadcast: "Advertising messages or sequences of advertisements
must be easily recognizable and clearly separated from the rest of the program before and
after release by screens recognizable by their optical and acoustical characteristics".
In 2001, on the occasion of the renewal of the agreements of the private channels TF1 and
M6, CSA, "anxious to avoid excessively commercialized in children's programming and to
alleviate the advertising pressure in the programs designed for them" has incorporated
specific provisions in agreements of private channels "the company ensures a clear
identification of advertising screens in programs for youth. To this end, it uses for all of
these programs, generic advertising screens with a minimum duration of 4 seconds
composed of audio and visual elements to the young audience to easily identify them.
"(Article 50 of the Convention M6, TF1 Article 45 of the Agreement).
The Higher Audiovisual Council (CSA) adopted the following recommendation in 2006 to
television service editors, to frame these practices: "In order to protect the fragile public
that are minors, the Council draws the attention of all television services on the need to
ensure a framework for programming animation and fiction for minors who, featuring
characters who are the subject of a separate business operation can help to promote
products or services using the image of these characters, maintaining a real confusion in the
minds of the young viewer between the field of advertising and that of fiction. In the case of
animated films and fiction which have experienced a significant success and whose
characters are exploited to create oriented products to the young audience: school supplies,
video, toys and games, etc., to avoid any confusion in the minds of the young viewer
between editorial content of a work and the advertisement promoting the products derived
from it, these advertisements must be clearly separated as chronologically as possible from
the work.
As a result, the work can’t be interrupted, preceded, or followed by advertisements for
products or services using the image of its protagonists.

C11062

39

Thus, the message can’t be broadcast in the last position in the break before the start of the
work and first in the screen of the end of the work.
The current approach is thus more a continuation than a change. As private sectors
had begun to define rules on ads dedicated to children before 2009. BVP (now AARP)
specifies in 2002, deontological rules on ads dedicated to children. 2005, National
Association of food industries creates a guide of good practices on nutritional
communication.
Contextual factors:


Political & social: The link between ads, food behaviors and health is
determinant in the approach chosen in France. In France, there was a growth
inobesity amongst children from lower socio-econonomic classes.



Economic: In 2010, around 50% of commercial revenues of youth chains are
linked to advertising revenues related to food (source UFC Que Choisir et IREP). In
2008, 26.8% of commercial revenues of youth chains are linked to advertising
revenues related to food. A ban on advertising on food for children could threaten
the financial stability of TV channels.

4 . 2 . 5 I mp l em en ta t i on of t he a pp r oa ch : h o w wa s th i s d on e ?
The Authority professional regulation of advertising (ARPP) is the professional
regulatory body for advertising in France. In everyday life, its actions can be reactive
(reacting to complaints for instance) or a proactive process. The ARPP missions result in
different types of actions:



Development of Recommendations: Advertising professionals voluntarily
give rules - say Recommendations form the ARPP - for advertising in France is
exemplary, beyond the mere application of laws that may already regulate it.
The rules of ethics and mission ARPP cover only the content of the advertising
message (that is, is it likely to mislead? Likely to shock? Irresponsible? Etc.)



Compliance before broadcast: Operational teams within the ARPP ensure
that daily advice requested by its members who wish to verify the compliance
of their advertising projects with applicable regulations and ethics before the
broadcast commercials. It concerns every type of Medias (television, radio,
Internet…):
o

The Media Council before finalizing advertisements: members of the
ARPP can seek advice on their projects in order to verify compliance
with professional rules.

o

Opinions ("favorable", "modify", "not to broadcast") are issued before
publication systematically on all completed films for television
advertising boards and audiovisual media services on demand
(SMAD). During 2012, a total of 22,529 pre advice on messages
for television, 22 reviews modifying concerned the application of
ethical recommendation entitled Effective Eating behavior on 1
January 2010. Notification before distribution procedure is
compulsory for commercials for Audiovisual Media Services on
demand (SMAD).
Specifically, these are commercials broadcasted on video-ondemand ("VOD"), whether dedicated services (e.g. TF1 Vision,
Canalplay video Club SFR ...) or Websites headings (e.g. headings
VOD TF1.fr , M6.fr), Catch-up TV services ("Catch-Up TV"), e.g.

40

C11062

M6 Replay, Pluzz (ditto: Dedicated services or sites headings),
online services offering audiovisual content, professionals and
"editorialized" (e.g. BFM TV channel on YouTube, M6 channel on
Daily motion).



Interventions for failure after diffusion: Once the advertisement is
broadcast , ARPP may also intervene in various ways:
o

Teams ARPP may on their own initiative note a failure found after
diffusion of advertising and intervene with the professional at the origin
of the message.

o

The public, if shocked by a broadcast advertising, can enter the
Advertising Ethics Jury who will then decide on the merits of the
complaint and issue a decision.



Interface with public advertising: In order to properly carry out its mission of
regulating advertising, ARPP must be responsive to requests, concerns and
sensitivities of society. This part of its business has expanded considerably in recent
years.



Development of professional regulation: The ARPP ensures a good spread of
professional ethics (conferences, publications ...), works in the permanent widening
of the circle of its members and supports the national and international levels, the
promotion of advertising self.

Before or after dissemination of advertising, ARPP can intervene with the advertising
manager asking them to justify certain allegations, to make changes or not to
broadcast advertising or stop its spread. In case of refusal, the ARPP members can
approach the media. For members, consequences of refusing to follow our decisions
can go all the blame or to radiation.
Penalties may also be taken by JDP (Advertising Ethics Jury) against advertisements
that have been subject to a complaint. JDP's mission is to rule on public complaints
against advertisements which have been broadcast. Advertising Jury opinion follows a
gradation indexed on the gravity of the offense and the response by the professional
(depending on whether or not to accept to withdraw or amend its advertising).
Penalties may be up for the immediate cessation of diffusion in the relevant media
form. The first level of publication is the on-line reviews, as and when they are taken
to the website dedicated Jury. The second level of publication is the press release,
quoting the brand of the advertiser and the agency name (when there is one) to the
breach. In cases where the violation of ethical rules is particularly serious, publication
of an advertisement in the press is made. If campaigns constitute breaches of
professional rules, sanctions can impose an immediate cessation of broadcast request
to the media.

C11062

41

The Union of Advertisers (UDA) implements and complies with procedures in place
since the adoption of the Charter to ensure optimum consideration of the rules of the
recommendation of the ARPP on eating behaviors:


Implementation of best practice sheets summarizing all the rules related with the
recommendation. These good practice sheets were distributed to all teams and
have been posted on the portal for newcomers to the marketing team (intranet);



Training for with the different teams in charge of communication, including, for
some cases, through exchange meetings with ARPP teams at the advertiser;



Internal validation involving multifunctional teams (e.g. regulatory,
communication, legal ...) and, for some, development of specific tools and / or
responsible communication committee to monitor these validations;



Others continued to include the need to respect these rules in contractual clauses
between their agencies;



Some advertisers, signed the UDA charter for responsible communication,
reported on their actions to comply with the rules of the recommendation, on the
website of the UDA in the area dedicated to the Charter (www.uda.fr /
communication section
manager / UDA charter).

The Higher Audiovisual Council (CSA) is responsible for monitoring the
implementation of this charter for editorial aspects of the programs as well as the
legal content of advertisements. The Board monitors and evaluates the
implementation of commitments relating to the content of the advertisement. CSA
established three evaluation reports (2010, 2011, and 2012).

4.3

Evaluating the outcomes and effectiveness of policies

4 . 3 . 1 H a s th e re b e en a ny r e vi e w /e va lua t ion o f t h e a p p ro a ch s o fa r?
1.

Ads contents:

Since 2009, CSA assesses the compliance with commitments by the signatories of the
Charter.
In 2013, the CSA noted:
Four years after the implementation of the Charter to promote nutrition and physical
activity favourable to health in programs and advertisements broadcast on television,
the Higher Audiovisual Council finds from year to year, efforts and will of all
signatories to participate in the fight against obesity by encouraging good behaviour
in specific programs.
In terms of advertising, ARPP, UDA continued to evolve the content of the messages in
the right direction, asking the advertising agencies and advertisers to respect the
commitments of the charter.

42

C11062

In 2014, the Environmental, Economical & Social Council (CESE-EESC) 6
welcomes the most ambitious scope of the new charter (2014) and approves in
particular of the efforts brought to account for specific problems such as obesity in
overseas territories.
It also seems useful, in this regard, to educate parents and children concerning the
influence of advertisements on their eating behavior and encourage them to discuss
these issues as well as on the different food production systems in close collaboration
with the women, men and territories.
Beyond advertising, strictly speaking, television series, very popular with children and
adolescents, may induce effects on dietary patterns of them through the process of
imitation or identification. For our meeting, it is necessary to make rules on the
matter so that these programs are privileged eating behaviors to promote such as
preparing meals together and use of fresh and healthy products instead of snacking
and consumption systematic little health food (chips, pizza ...). The EESC questions
the possibility of prohibiting reprehensible practices nutritionally in programming for
young people, like what has been done to fight against smoking or alcoholism. Indeed,
product placement practice (except tobacco, alcohol or drugs), usually called "hidden
advertising" is permitted in France since 201,017 in television series and other film
productions other than those for children. It would seem sensible to draw all the
consequences of this legislation in the light of the objectives of NFHP and public health
concerns on this issue.
Consumer organizations: In 2006 and 2010, UFC Que Choisir realizes a study on TV
Marketing for food products dedicated to children. This consumer organization wrote
that commitments taken by public and private actors are these recommendations are
the minimum that one is entitled to expect from the makers of advertisers.
2.

Ads diffusion:

In 2014, the Environmental, Economical & Social Council (CESE-EESC) considers
that certain rules of conduct should be applied to all the commercials on food,
regardless of the time of publication. Indeed, if the limitations and prohibitions are
respected in niche programs for youth, there is a larger number of children are
present in front of screens in prime time, for example at night when family dinner,
during which they are a prime target. It also seems useful, in this regard, to educate
parents and children to the influence of advertisements on their eating behavior and
encourage them to discuss these issues as well as on the different food production
systems in close collaboration with the women, men and territories.

6

The Economic Social and Environmental Council (CESE) is a consultative constitutional assembly. CESE is a
consultative constitutional assembly. Made up of representatives of the main economic, social and
environmental activities, CESE encourages cooperation of different socio-professional categories between
them and ensures their participation in the definition and evaluation of public policies.
CESE is mainly invested five tasks:
 Advising Government and Parliament and participating in the development of the economic, social and
environmental;
 Promoting, through its composition, dialogue between occupational groups whose concerns, different in
origin, are similar in the development of proposals of general interest;
 Contributing to evaluation of public policies on economic, social and environmental;
 Promoting constructive dialogue and cooperation with Advisory assemblies created with local authorities
and with its European and foreign counterparts;
 Contributing to information for citizens.

C11062

43

Consumer organization: UFC Que choisir shows that food ads budget remains one of
the most important budget for TV channels, commitments on ads diffusion are very
different from one firm to another, a large majority of ads (80%) during children
products promoting goods with fat, sugar, salt, a carry of advertisements touting food
for children in “all age slots” watched by a number of children even more important
than during “children slots”.
4 . 3 . 2 I s th er e a ny sy st em f or mo n it or i ng th e ef fe ct of t hi s a p pr oa c h t o r eg u la t i on?
I f so, wh i ch o rga n isa ti on s or a c to r ca r r i es th i s o ut?
(Please see Section 4.2.5 on Implementation)
4 . 3 . 3 H o w is c om p l ia nc e w it h th es e r eg u la t io ns m on it o re d a nd e nf or c ed? W ha t
s o rts o f con se qu en c es o cc ur if a n o rga n i sa t i on/ e nt e rp r is e do e s n ot f oll o w
t he re gu la to ry r u le s in p l a c e?
There are no consequences, except for ads contents. If they don’t follow rules of
charter, ads are not authorized to be published.
4 . 3 . 4 H o w ef fe ct iv e d o y ou f ee l t h is p ra c t ic e i s in c on tr i bu t in g t o a g oo d r eg u la t i on
o f fo od a d ve r t is in g a i me d a t ch i l d re n? P l ea s e e x p la in.
In adults, the scientific journal articles on the impact of an advertising ban shows that
it is of no effect on behaviour change (e.g. alcohol or cigarettes). Social Marketing
shows that behavioural changes in the field of food are not that combining nutrition
education, action on the ground (especially among small populations) and change
access to products. If children are undoubtedly more likely to be influenced by the
contents of the advertisements as adults, the fact remains that shares knowledge and
changes in the supply of food products or its access are decisive. Researches in this
area are all based on experimental methodologies. Carried out in very different cultural and
temporal contingencies, they gave mixed results.
The NFHP plays on more research on this subject, the other commitments of the
charter to promote nutrition and physical activity favourable to health in programs
and ads on television as well.
Study results therefore do not allow to rule on the existence of a significant impact of
advertising on food consumption of the child. This raises the question of the relevance
of the regulations of the food commercials broadcast during programs for children or
for children. In addition to advertising, solicitation many sources exist outside of the
television medium: retail outlets and planning, sales promotion, Internet, peer
pressure ... Particularly, according to Bolton (1983), the impact of behavior and eating
habits of the family would be much more consistent than that of television advertising.
These solicitations and importance elements of education tend to limit impact of food
television advertising on nutritional balance of the child. If everything is not resolved
in terms of running advertisements on food for children, it seems more important to
focus on education, access to the supply and field work.
There do not appear to have been any assessments or public studies measuring the
audience of children on TV or in front of computers.
4 . 3 . 5 H a v e th er e b e en a ny o bs ta c l es o r cha l l en ge s en co unt e re d i n de v el o p in g a nd
i m p l em en ti ng th i s a p pro a ch t o re gu la t ing f oo d a dv e rt i s ing a im e d a t
c h i ld r en?
(Please see Section 4.4.2 on Potential Obstacles)

44

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4.4

Transferability

4 . 4 . 1 D i sc us s ion o n t ra nsf e ra b i l i ty o f a pp ro a ch
This approach is readily transferable if:


you can find in this country : food industry organisation, TV cha nnel organisation,
public actors, regulating TV channels, managing health policy;



those actors are able to/use to discuss together and find an interest to do it (for
industry being able to continue to promote food goods, for public actors, finding
the way to finance TV industry).

This approach has many advantages:


Asking every actor to be responsible for its actions;



Asking Food industry to regulate its ads practices. It can continue to promote its
goods;



Allowing Public actors to prevent food behaviours bad for health with the financial
support of food industry;



Asking people to act for their health by good food practices.

4 . 4 . 2 P ot en t ia l o bs ta c l es t o tr a n sf er r in g th is a p p r oa c h to ot he r na t i ona l con te xt s
This approach has limits as well:


Food industry seeks to adopt the least possible binding rules and the best suitable
for promotion of their products, which is not always synonymous with the rules
more effective in terms of health prevention;



The key to change consumer behavior factors are multiple, difficult to identify long
to evolve. The impact of such policies is therefore bound to be evaluated in a long
time and be regularly attacked.

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45

5
5.1

Germany
Description of Current national approach to regulating food
advertising aimed at children

5 . 1 . 1 H o w is f oo d a dv e rt i si ng to wa rd s c h i ld r en d ef ine d in th e cou nt ry? Do di f fe r en t
a c to rs u se d i ff e re nt d efi n i t ion s?
Code of conduct commercial communication for foods and beverages ZAW:
In 2009 the Zentralverband der deutschen Werbewirtschaft / Organisationen der
Lebensmittelindustrie, des Handels und der Medienwirtschaft (ZAW) developed ‘the
German standards advertising council code of conduct on commercial communication
for foods and beverages’.
For the purposes of this code of conduct the following definitions are used:


Commercial communication is the use of any communication instrument by a n
enterprise with the primary objective of promoting the sale of goods or servic es,
excluding editorial content;



Children are persons under 12 years old.

5 . 1 . 2 S y st em o f re gu la t ion f ol l o w ed b y c ou nt ry fo r re g ul a t in g fo od a d ve rt i s in g
t owa r ds ch i l d re n
Legislation
Advertising in Germany is regulated by national and European legislation and
according to Zentralverband der deutschen Werbewirtschaft (ZAW) the relative high
protect level benefits children in a special way. The University of Hamburg considers
regulation of advertisements directed at children in Germany however liberal.
Advertising containing emotionalising elements like celebrities or cartoon characters is
generally allowed and commercials are sometimes described as ‘educational’ by
helping children learn about media.
Several German laws are relevant with respect to advertising aimed at children 7


Gesetz gegen den unlauteren Wettbewerb (UWG);



Lebensmittel- und Futtermittelgesetzbuch (LFGB);



EU-Verordnung über nährwert- und gesundheitsbezogene Angaben über
Lebensmittel (VNGA);



Nährwertkennzeichnungsverordnung (NKV);



Jugendmedienschutz-Staatsvertrag der Bundesländer (JMStV);



Jugendschutzrichtlinien der Landesmedienanstalten;



Rundfunkstaatsvertrag der Bundesländer (RStV);



Werberichtlinien der öffentlich-rechtlichen und privaten Rundfunkveranstalter; EU-Fernsehrichtlinie bzw. Richtlinie über audiovisuelle Mediendienste;

C11062



Telemediengesetz (TMG);



Jugendschutzgesetz (JuSchG).

7

ZAW Zentralverband der deutschen Werbewirtschaft / Organisationen der Lebensmittelindustrie, des
Handels und der Medienwirtschaft, Kinder / Werbung / Ernährung, Fakten zum gesellschaftlichen Diskurs,
oktober 2012.

47

With respect to young people and children some restrictions are relevant. According to
federal law, marketing must comply for example with the legal framework established
to control unfair competition (Gesetz gegen den unlauteren Wettbewerb, UWG, 3 July
214)8. The law prohibits any type of advertising that directly invites children to buy a
marketed product themselves or to take up a marketed service themselves, or cause
their parents or other adults to do so.
For all other restrictions we refer to code of conduct presented below which comprises
almost all legislation.
Code of conduct commercial communication for foods and beverages ZAW
In 2009 the Zentralverband der deutschen Werbewirtschaft / Organisationen der
Lebensmittelindustrie, des Handels und der Medienwirtschaft (ZAW) developed ‘the
German standards advertising council code of conduct on commercial communication
for foods and beverages’ 9.
In the code is indicated that producers of food and beverages are responsible for the
quality of their products and their advertising. In addition is indicated explicitly that
advertising of food and beverages is not the determining explanation for the societal
problem of overweight as shown by numerous scientific findings. The causes of
overweight are considered to be complex. In particular, socio -economic factors (level
of education, social status, descent) play a role in its development, together with lack
of physical activity, unhealthy dietary behaviour, genetic predisposition and psycho social aspects. In comparison to adults, children and adolescents in principle require
special care and protection. Dietary education, encouragement of physical activity,
comprehensible information on nutritional values and freedom of choice among a wide
range of food products on offer are points of departure in seeking to avoid overweight
in children and adolescents. Children's dietary habits are formed under the influence
of their social environment, above all of the family. The parents have a key function in
conveying correct dietary habits, physical activity and interactive skills.
The organisations of the food and beverage industry, retailers, the media,
communication agencies and advertising professions which are members of the
German Advertising Federation (Zentralverband der deutschen Werbewirtschaft - ZAW
e.V.), are of the opinion that commercial communication has a crucial role in free, fair
and open competition. Commercial communication makes the connection between
enterprises advertising their products and their customers and helps to create and
maintain well-ordered markets to the advantage of all concerned.

8

9

48

The Act Against Unfair Competition. Federal Law Gazette (BGBI), 2010, Part 1:254 (http://www.gesetze-iminternet.de/englisch_uwg/englisch_uwg.html, accessed 24 July 2013).
This Act serves to implement Directive 2005/29/EC of the European Parliament and of the Council of 11 May
2005 concerning unfair business-to consumer commercial practices in the internal market This Act further
serves to implement Article 13 of Directive 2002/58/EC of the European Parliament and of the Council of 12
July 2002 concerning the processing of personal data and the protection of privacy in the electronic
communications sector (OJ L 201 of 31.7.2002, p. 37), as last amended by Article 2 Number 7 of Directive
2009/136/EC (OJ L 337 of 18.12.2009, p. 11). There has been compliance with the obligations under
Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure
for the provision of information in the field of technical standards and regulations (OJ L 204 of 21.7.1998, p.
37), as last amended by Directive 2006/96/EC (OJ L 363 of 20.12.2006, p. 81).
German Standards Advertising Council Code of Conduct on Commercial Communication for Foods and
Beverages. Berlin, German Advertising Federation, 2009
(http://www.werberat.de/sites/default/files/uploads/media/dw_commercial_communication_on_foods_2009
.pdf, accessed 22 July 2013).

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Organisations involved:
The organisations of the food and beverage industry, retailers, the media,
communication agencies and advertising professions which are members of the
German Advertising Federation (Zentralverband der deutschen Werbewirtschaft - ZAW
e.V.) have agreed to follow the code of conduct. In total 42 organisations are
participating (November 2014).
Organisations responsible
The Deutschen Werberat 10 (German Advertising Standards Council) is responsible for
surveillance on compliance with this code of conduct, the organisation of the
complaints procedure and the assessment of complaints. Deutscher Werberat is an
institution of the 42 organisations of advertisers, the media, advertising agencies, the
advertising professions and research establishments represented by the German
Advertising Federation (Zentralverband der deutschen Werbewirtschaft - ZAW). It is
funded by all relevant participants in the advertising market. The ZAW Presiding
Committee elects the ten members of Deutscher Werberat from among its members
every three years.
Since May 2009, enterprises can ask ZAW to assess the planned advertising on the
three basic criteria a) to legal correctness; b) in accordance with rules and
decisions of the Werberat; c) on political and social acceptance.
Legislation covered:
In the code of conduct the members have stipulated that: to ensure, to the full extent
of their abilities, compliance with the legal requirements in the area of food and
beverage advertising, in particular the provisions of the Act against Unfair Competition
(Gesetz gegen den unlauteren Wettbewerb - UWG), the Food and Feed Act
(Lebensmittel- und Futtermittelgesetzbuch - LFGB), the Regulation on nutrition and
health claims made on foods (Verordnung über nährwert- und gesundheitsbezogene
Angaben über Lebensmittel) and the law for the protection of minors
(Jugendschutzgesetz/JuSchG and Jugendmedienschutz-Stastavertrag/JMStV).
Contents of the code
For the purposes of this code of conduct the following definitions are used:


Commercial communication is the use of any communication instrument by an
enterprise with the primary objective of promoting the sale of goods or servic es,
excluding editorial content;



Children are persons under 12 years old.

In the design and execution of commercial communication for foods and beverages
general principles are formulated and principles specifically aimed at children:
General Principles:
The following general principles stipulated: Commercial communication for foods and
beverages:


Should be designed in a way that does not abuse the consumers' confidence in the
quality of the advertised product;



Should not undermine a healthy, active lifestyle;



Should not undermine a balanced, healthy diet;



Should not encourage excessive or one-sided consumption of the advertised
products;

10

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http://www.werberat.de/

49



Containing nutrients and substances with a nutritional or physiological effect, of
which excessive intakes in the overall diet are not recommended, should not
represent avoidance of consumption of this item in a negative manner.

Children
In commercial communication directed at children, in addition to the general
principles, the following rules are to be observed. Account must be taken of the
commercial inexperience and the need for protection of persons of this age group.
Commercial communication for foods and beverages:


Should contain no direct demand for purchase or consumption addressed to
children;



Should contain no direct demand to children to induce their parents, other adults
or other children to purchase the advertised product;



Should not exploit the special confidence which children place in persons of trust
such as parents and teachers;



Should not employ inducements to purchase (e.g. add-ons) and aleatory
advertising (e.g. lotteries and prize competitions) in a way which exploits children's
commercial inexperience. In particular, commercial communication for foods and
beverages should not attract children with excessive advantages in a non -objective
inappropriate manner;



Should not suggest to children that the consumption of a particular product is
irreplaceable in a complete and balanced meal;



Beverages should not deter children from acquiring a healthy, active lifestyle.



Should not deter children from acquiring balanced, healthy dietary habits.

To summarise: The general rules of the code emphasise that advertising should not:
(a) abuse consumers’ confidence; (b) undermine a healthy ad active lifestyle; (c)
undermine a balanced and healthy diet; or (d) encourage excessive consumption. The
code stipulates that there should be: (a) no direct demand for children to purchase;
(b) no direct demand for children to convince their parents to purchase; (c) no
exploitation of children’s confidence and; (d) no inducements to purchase.
Complaints
Anyone can submit a complaint on commercial advertising to Deutscher Werberat.
Complaints can be submitted by telephone, fax, email (werberat@werberat.de) or
postal mail. Anonymous complaints are not processed. The Deutscher Werberat can
also instigate proceedings itself. Complainants’ names are treated confidentially and
the proceedings are free of charge to the complainant. The advertiser subject to
complaint is given an opportunity to respond. If a complaint is upheld, the advertiser
is notified and asked to modify or discontinue the advertisement. If a breach of the
law is suspected, the executive office passes on the case without delay to the
responsible authorities – for example the public prosecution service, the
Wettbewerbszentrale (Centre of Protection against Unfair Competition) in Bad
Homburg, or Integritas (the self-regulatory body for pharmaceutical advertising) in
Bonn.
Sanctions
If an advertiser fails to modify or discontinue an advertisement, the Deutscher
Werberat issues a reprimand and makes the case public. Mass media editorial
departments are sent a release on the reprimand which is then reported and
commented upon in the press. In parallel with a reprimand, the media are requested
no longer to carry the advertisement in question.

50

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A public reprimand is rarely necessary. If a complaint is upheld, the advertiser
generally complies with the Deutscher Werberat’s request to modify or discontinue the
advertisement.
Cross border advertising
Problems involving cross-border advertising are addressed by the European
Advertising Standards Alliance (EASA) based in Brussels (www.easa -alliance.com).
This institution, largely founded at the initiative of ZAW, forwards complaints relating
to foreign advertisements to the national advertising standards authority in the
country concerned. Through the EASA, the Deutscher Werberat is also in constant
exchange with other self-regulatory bodies of the European advertising industry.
Radio and television including teleshopping
The code of conduct does not include the:


Rundfunkstaatsvertrag der Bundesländer (RStV);



Werberichtlinien der öffentlich-rechtlichen und privaten Rundfunkveranstalter; EU-Fernsehrichtlinie bzw. Richtlinie über audiovisuelle Mediendienste;



Telemediengesetz (TMG).

In 1998, the Deutsche Werberat has set up the follows rules of conduct regarding
radio and television with and for children 11.
The TV and radio commercials should not:


Lecture children about particular advantages and characteristics of the product,
which is not in accordance with the natural expressions of children;



Contain any direct requests for purchase or consumption of the product by
children;



Contain any direct calls to children and/or from children, to stimulate others to buy
a product;



Abuse the special trust children have in certain individuals who exploit abusive.

In addition:


Aleatory advertising materials (e.g. lotteries, prize draws, prize competi tions and
riddles) should not mislead potential buyers, not attract them to buy based on
undue advantages and not exploit the urge to gamble;



Criminal activities or other serious misconduct that may be jeopardise people, may
not be presented less worse;



For TV Commercials with young people and/or advertising specifically aimed at
young people including teleshopping, also the provisions of the EU Television
Directive has to be taken into account;



No direct stimulation should be made to youngsters, making used of their
inexperience or credulity;



Youngsters should not be asked directly to persuade their parents or others to
purchase the goods or services;



No use should be made of the special trust young people have in parents, teachers
or other persons;

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

Youngsters should not be put in dangerous situations without a reason.

11

See http://www.werberat.de/kinder-und-jugendliche

51

Telemedia
Also in Telemedia - especially websites and Internet services such as e-mail –
advertisement should be identifiable by the user without much effort. This holds also
for vulnerable groups, which include children. In case it is not clear that it is an
advertisement on the basis of the design of the advertising message, the service
provider must add an appropriate indication (See Telemediengesetz/Tele Media Act).
The need of the recognisability of advertising applies also to radio and TV. Programs
for children are particularly affected by advertising rules. (Rundfunk Staatsvertrag/Broadcasting State Treaty).
Agreement commercial TV stations
The Verband Privater Rundfunk und Telemedien – VPRT (Association of Commercial
Broadcasters) 12 is a federation of commercial TV stations in Germany. They have
agreed on a voluntary basis that:


Advertising blocks during or around children's programs, start and end with an
insert making clear that this is an advertisement. In this way, the commercial
providers work in line with the rules of the Landesmedienanstalten (regional
government), which includes an obligation to have a clear marking between a
programme for children and an advertisement.



In addition the commercial TV stations also include an auditory identification at the
start of the advertising block around children's programs especially for younger
children who cannot read yet.

VPRT is also a member of ZAW.
Other codes
In addition there are other codes to particular industries or enterprises that are
relevant. Also relevant for Germany is the EU pledge under which a number of large
industries have agreed to constrain its commercials for food to children under 12
years of age to those that ‘fulfil[s] specific nutrition criteria’.
The ICC Framework of responsible Food and Beverage Marketing Communication is
also relevant in this respect. ICC – stands - for International Chamber of Commerce
and they have also developed guidelines for marketing to children.
See http://www.icc.se/reklam/english/food2006.pdf and http://www.iccwbo.org/
and
http://www.iccwbo.org/advocacy-codes-and-rules/areas-of-work/marketing-andadvertising/marketing-and-advertising-to-children/
Recent developments
The “business community” has a special responsibility when it comes to advertising
particularly when it is targeted at children and adolescents. As a consequence of the
current amendment to the Act against Unfair Competition (UWG), new binding
standards will be established in conjunction with the implementation of the Unfair
Commercial Practices Directive. Together with the business community, the Federal
Government will discuss what additional rules are needed that could be set out in a
code of conduct. One of the goals will be:

12

52

http://www.vprt.de

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

To forego advertising targeting children under the age of 12 ;



For older children and adolescents the Federal Government, together with the
business community and the German Advertising Council, will set down in a
key issues paper the main rules for advertising activities. In this context, the
German Advertising Council (DW) and the Zentralverband der deutschen
Werbewirtschaft (ZAW) have already done important groundwork;



All the media are to be covered by the additional rules;



Besides the classical advertising channels, rules must also be drawn up for
advertising on mobile phones and the Internet.

5 . 1 . 3 W h en wa s th e a p p roa ch i mp l em e nt ed
Since May 2009, enterprises can ask ZAW to assess the planned advertising on the
three basic criteria a) to legal correctness; b) in accordance with rules and
decisions of the Werberat; c) on political and social acceptance.

5.2

Context in which the current national approach was developed
and implemented

5 . 2 . 1 P ro b l em r ec og n it i on
In the code of conduct of ZAW is described that producers of foods and beverages are
responsible for the quality of their products and their advertising. In addition, it is
indicated that advertising of foods and beverages is not the determining explanation
for the societal problem of overweight, as numerous scientific findings have shown.
The causes of overweight are complex. In particular, socio -economic factors (level of
education, social status, descent) play a role in its development, together with lack of
physical activity, unhealthy dietary behaviour, genetic predisposition and psychosocial aspects. In comparison to adults, children and adolescents in principle require
special care and protection. Dietary education, encouragement of physical activity,
comprehensible information on nutritional values and freedom of choice among a wide
range of food products on offer are points of departure in seeking to avoid overweight
in children and adolescents. Children‘s dietary habits are formed under the influence
of their social environment, above all of the family. The parents have a key function in
conveying correct dietary habits, physical activity and interactive skills.
5 . 2 . 2 D o es th i s a p pr oa c h t o re g ul a t in g fo od a d ve rt i se m en ts a i m ed a t ch i l dre n
c on ne ct w it h pr i o r it i es f r om ot he r p o l icy a r ea s?
Government policy regarding obesitas and overweight
The main objective of the Federal government of Germany health and nutrition policy
is the promotion of healthy lifestyles, placing strong emphasis on reducing overweight
and obesity. An important basis for this policy is the Federal Government’s National
Action Plan “IN FORM – German national initiative to promote healthy diets and
physical activity” 13. The plan is aimed at bringing about lasting improvements in
dietary and exercise habits in Germany by 2020. Regarding children, the plan states:
children should be brought up more healthily and benefit from a higher quality of life
and better physical and mental ability in their education, jobs and private lives . IN
FORM is therefore aimed at much more than just preventing overweight. It is about
promoting a healthy lifestyle with a well-balanced diet and sufficient physical activity.

13

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http://www.bmel.de/EN/Food/Healthy-Diet/_Texte/IN%20FORM.html

53

5 . 2 . 3 W h ic h a cto r s o r o rga n isa t i on s a r e re sp on s ib l e fo r in it ia t ing t he cu r r ent
o r ga n is a t io n of fo od a dv e rt i si ng a im ed a t ch i l dr e n?
In November 2014, around 100 projects have been supported by the Federal Ministry
of Food and Agriculture (BMEL) and the Federal Ministry of Health (BMG) under the IN
FORM initiative. The coming years (consolidation and dissemination phase) the
activities will focus on:


Establishing (and stabilising) measures and projects supported under the IN
FORM initiative in the longer term;



Disseminating findings and results, and



Promoting both the exchange of experiences and networking between the
actors in the projects.

IN FORM thus acts as a "dialogue" for policy-makers, industry, the science community
and civil society with regard to all questions concerning a healthy lifestyle. This is, for
example, reflected in the initiative's Internet platform. www.in-form.de
The objectives of the Platform is to avoid the further spread of overweight and obesity
amongst children and adolescents up to 2020 through prevention and health
promotion. The proportion of overweight children should be reduced to the level of
1990 by 2020. The Action Areas of the Platform are part of the national strategy. The
Action Areas of the Platform are:


Using appropriate media children of pre-school and primary school age know to
inform them on a healthy diet and the importance of physical activity.



Parents and their influence on children are important aspects as well. Socially
disadvantaged parents with a low level of education and families with a migration
background require special attention and support.



Day-care centres for children play a key role. The platform (PEB) aims to bring
about improvements to the framework conditions for more nutrition education and
for more physical activity for children in their daily lives. The platform examines
whether and how primary schools can offer stimulus for more physical activity
periods, more school sport and more physical activity in daily life (which is seen as
having major potential to help solve the problem), and for extending nutrition
knowledge and experiential learning whilst eating.

The best chances of success in promoting a healthy lifestyle are when local initiatives
implement local measures and develop them further. That is why the Platform is also
involved in creating networks of local institutions, identifying their mechanisms of
action, strengths and weaknesses, and disseminating the findings. The platform is
active in both areas – diet and physical activity. An expert advisory board, consisting
of recognised scientists and experts, advises platform.
This plan also involves –inter alia – meetings with industry aimed at preventing any
advertising targeting children aged under 12 years of age and formulating a voluntary
code of conduct for advertising activities targeting older children and adolescents.
“IN FORM draws on existing national action plans and federal programmes. It
supplements and builds on them and promotes cross-topic and cross-stakeholder
synergy effects. Mention should be made here of the National Cycling Plan (2002 –
2012), the National Action Plan „A Germany Fit for Children 2005 – 2010“, the
strategy of the Federal Government to promote children‘s health (2008), the Federal
Government-Länder Programme „Socially minded City“ (since 1999) and the
investment programme „Future Education and Care“ (2003 – 2009).

54

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5 . 2 . 4 D e ve l o pm ent o f th e a pp r oa c h: w hi ch co nt ex tua l fa c to rs inf l ue nc ed t he
d e ve l op m ent o f t he c urr e nt a p p roa ch to r e gu la t i ng f oo d a dv e rt is i ng a im e d a t
c h i ld r en?
(Please see Section 5.2.1 on Problem Recognition)
5 . 2 . 5 I mp l em en ta t i on of t he a pp r o a ch : h o w wa s th i s d on e ?
(Please see Sections 5.2.1, 5.2.2 and 5.2.3)

5.3

Evaluating the outcomes and effectiveness of policies

5 . 3 . 1 H a s th e re b e en a ny r e vi e w /e va lua t ion o f t h e a p p ro a ch s o fa r?
Code of conduct ZAW
Only a very small part of the complaints that the Werberat receives refers to ‘children
and advertising' (only one percent of the complaints in 2010). The reason is that due
to the voluntary character the code of conduct, the enterprises also consider, nex t to
the legislation, issue that are politically or socially not acceptable. This system of
control over the legal framework has earned respect in Germany. For example, the
Federal Minister of Justice Leutheusser-Schnarrenberger said in 2010: "Especially the
advertising industry has demonstrated how self-responsibility and self-regulation can
work. The Werberat has been for over 30 years an important and well-known
instrument to ensure even beyond legal limits for integrity and fairness in advertising.
At the EU level, Member States have adopted the Code of Conduct of the German
Advertising Council for advertising with and against children in radio and television in
the EU Television Directive (transposed in the Jugendmedienschutz -Staatsvertrag/
Youth Media Protection State Treaty).
5 . 3 . 2 I s th er e a ny sy st em f or mo n it or i ng th e ef fe ct of t hi s a p pr oa c h t o r eg u la t i on?
I f so, wh i ch o rga n isa ti on s or a c to r ca r r i es th i s o ut?
Organisations involved:
The organisations of the food and beverage industry, retailers, the media,
communication agencies and advertising professions which are members of the
German Advertising Federation (Zentralverband der deutschen Werbewirtschaft - ZAW
e.V.) have agreed to follow the code of conduct. In total 42 organisations are
participating (November 2014).
Organisations responsible
The Deutschen Werberat 14 (German Advertising Standards Council) is responsible for
surveillance on compliance with this code of conduct, the organisation of the
complaints procedure and the assessment of complaints. Deutscher Werberat is an
institution of the 42 organisations of advertisers, the media, advertising agencies, the
advertising professions and research establishments represented by t he German
Advertising Federation (Zentralverband der deutschen Werbewirtschaft - ZAW). It is
funded by all relevant participants in the advertising market. The ZAW Presiding
Committee elects the ten members of Deutscher Werberat from among its members
every three years.

14

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http://www.werberat.de/

55

Since May 2009, enterprises can ask ZAW to assess the planned advertising on the
three basic criteria a) to legal correctness; b) in accordance with rules and
Decisions of the Werberat; c) on political and social acceptance.
5 . 3 . 3 H o w is c om p l ia nc e w it h th es e r eg u la t io ns m on it o re d a nd e nf or c ed? W ha t
s o rts o f con se qu en c es o cc ur if a n o rga n i sa t i on/ e nt e rp r is e do e s n ot f oll o w
t he re gu la to ry r u le s in p l a c e?
(Please see Section 5.3.4 on Effectiveness below)
5 . 3 . 4 H o w ef fe ct iv e d o y ou f ee l t h is p ra c t ic e i s in c on tr i bu t in g t o a g oo d r eg u la t i on
o f fo od a d ve r t is in g a i me d a t ch i l d re n? P l ea s e e x p la in.
Television advertisement - EU-pledge
In January 2012, the German consumer organisation Verbraucherzentrale
Bundesverband (VZBV) has called for stricter rules on food advertising to children,
based on a study carried out by the University of Hamburg 15. The objective of the
study was to examine whether the German food industry directs commercials for
unhealthy products to children and whether self-administered voluntary restrictions on
the promotion of less healthy foods (the EU Pledge) are effective to mitigate this
exposure. By analysing German data from 3 commercial TV channels (MTV, Pro7 and
Nickelodeon), advertised products were categorised and food products classified as
core foods (healthy) and non-core foods (less healthy). Marketing techniques used
were documented. Food commercials were furthermore compared with commercials
for toy products, and comparisons were made between advertising patterns before
and after the EU Pledge.
In 2007–2008, 14.5 % of commercials of the three private channels were for food
products, of which 88.2 % were for non-core foods. Commercials for unhealthy foods
were broadcast significantly more often during children's peak viewing and in
children's programmes, with a higher use of promotional characters and premiums
than found in commercials for non-food products. In 2010, analysis of the three
specified channels showed that 18.5% of commercials were for food products, of
which 98.2 % were for non-core foods. While the use of premiums (competitions,
games, gifts) decreased compared with other commercials, the use of promotional
characters (celebrities, sports persons and cartoon characteristics) in non-core food
commercials increased, especially during children's programmes. The conclusions of
the study were that children in Germany are exposed to large numbers of food
commercials. The exposure to commercials for non-core foods and the use of
techniques attractive to children are widespread and appear to have remained
unaffected by the announcement of the EU Pledge. The researchers conclude that the
industry's voluntary agreement has failed to fulfil its declared purpose.

15

56

Institute for Commercial Law, University of Hamburg, Tobias Effertza and Ann-Christin Wilckea, Do
television food commercials target children in Germany?

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5.4

Transferability

5 . 4 . 1 D i sc us s ion o n t ra nsf e ra b i l i ty o f a pp ro a ch
In Germany the advertisement regarding children is arranged through self -regulation.
The code of conduct that includes all relevant legislation is developed by the German
Advertising Federation (Zentralverband der deutschen Werbewirtschaft – ZAW).
This organisation represents 42 organisations of advertisers, the media, advertising
agencies, the advertising professions and research establishments. ZEW has also set
up the Deutschen Werberat (German Advertising Standards Council) that is
responsible for surveillance on compliance with this code of conduct, the organisation
of the complaints procedure and the assessment of complaints.
This system is transferability to other countries in which self -regulation is a wellaccepted tool to arrange surveillance of compliance with regulation. In addition the
sector involved should be open to organise themselves and set up an institution
responsible for surveillance of compliance, able to decide independently and advice
the sector if needed.
ZAW is one of the founders of the Advertising Standards Alliance (EASA).
The Verband Privater Rundfunk und Telemedien – VPRT (Association of Commercial
Broadcasters) is a federation of commercial TV and radio stations broadcasting in
Germany. They have also agreed on a voluntary basis rules regarding advertisement
to children on television and radio. This agreement could easily be transferred to other
countries. A large number of the organisations that are member of the VPRT are also
broadcasting in other countries worldwide.
The Federal government of Germany has developed a policy to promote healthy
lifestyles, placing strong emphasis on reducing overweight and obesity. An important
basis for this policy is the Federal Government’s National Action Plan “IN FORM –
German national initiative to promote healthy diets and physical activity”. The plan is
aimed at bringing about lasting improvements in dietary and exercise habits in
Germany by 2020. This plan is also easily transferable to other countries. .
5 . 4 . 2 P ot en t ia l o bs ta c l es t o tr a n sf er r in g th is a p p r oa c h to ot he r na t i ona l con te xt s
There do not appear to be any major obstacles to transferring this approach to other
national contexts. However given the mixed conclusions regarding the performance of
this approach to regulating food advertisements aimed at children, lessons should be
drawn from this approach with caution.

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57

6
6.1

Luxemburg
Description of Current national approach to regulating food
advertising aimed at children

6 . 1 . 1 H o w is f oo d a dv e rt i si ng to wa rd s c h i ld r en d ef ine d in th e cou nt ry? Do di f fe r en t
a c to rs u se d i ff e re nt d efi n i t ion s?
In Luxembourg there is no special definition or approach for food advertising towards
children. One of the main reasons is simply the fact that th ere is no company in
Luxembourg producing a food product, targeting specifically children and having the
need to air commercials for their product. If there is a company active in the food
industry, it is aiming at a larger group of potential customers in their advertisement.
The rules/codes/guidelines which do exist are focused on advertising in general or
advertising towards children in general, with no real difference made between a
burger and a toy car. Due to the size of Luxembourg, it is rather rare t hat an
internationally established company produces a commercial just for the Luxemburgish
market. For example: you will not find a commercial from Coca Cola in Luxemburgish
on a Luxemburgish TV-Channel. What you will find is a commercial from Germany or
France or made for BENELUX in cinemas (question/problem with the language) but
again not in Luxemburgish. So most commercials (especially for the cinemas) come
from abroad and since they passed the rules/criteria from Germany or France, they
will not be rejected by Luxembourgish rules or similar because Luxembourg does not
have stricter rules than its neighbours.
6 . 1 . 2 S y st em o f re gu la t ion f ol l o w ed b y c ou nt ry fo r re g ul a t in g fo od a d ve rt i s in g
t owa r ds ch i l d re n
Luxembourg adopts a system of self-regulation, in alignment with the rules applied by
EASA, European Advertising Standards Alliance which are again based on the
Consolidated Code of Advertising and Marketing Communication Practice of the
International Chamber of Commerce (ICC)
The EASA says for instance: “Freedom of commercial speech in the sale of legal
products is a fundamental principle of free markets. However the exercise of this
freedom comes with obligations, and an essential element in the freedom of speech is
responsibility, so the ICC encourages all food and beverage communicators to adhere
to the principles of responsible consumer communication, above and beyond
compliance with laws and regulations, especially when communicating to children.”
There are two associations in Luxembourg, supervising commercials in general, for all
types of media (television/cinema, print, radio, online media, etc.): the “Conseil de la
Publicité du Grand-Duché de Luxembourg a.s.b.l.” (CPL) and the “Commission
luxembourgeoise pour l’éthique en publicité” (CLEP).
The CPL (Council for advertisement Luxembourg) is composed by actors of the sector,
(for example advertiser, advertising agencies, seller of commercials) and counts
around 150 members today. The mission of the CPL is to promote the liberty and the
creation of advertising but also the auto discipline based on a code of conduct/code of
ethics (code de déontologie). The CPL was founded in November 2008 and has the
legal form of a non-profit organization (NPO).

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In 2009 the CPL has created the CLEP (Commission for ethnic in advertising
Luxembourg). The mission of the CLEP is to observe the right usage of the code of
conduct and to act as an adviser. Even though the CLEP has been created by the CPL,
the CLEP is working independently to the CPL.
The principles of the code of conduct are: truthfulness, decorum, honesty, fairness,
being social responsible, environmental responsibility and the respect of privacy.
Along with these principles the code of conduct adopts the Code of Advertising and
Marketing Communication Practice of the International Chamber of Commerce (ICC).
Since the rules in Luxembourg make no specific difference between an adult and
children in food advertising (or elsewhere), there are no age groups to whom a certain
rule would apply or not. There is also no real limitation in terms of content that a
commercial can show, as long as it respects the code of conduct and obviously does
not contain any acts of violence or racism for instance.
6 . 1 . 3 W h en wa s th e a p p roa ch i mp l em e nt ed

6.2

Context in which the current national approach was developed
and implemented

6 . 2 . 1 P ro b l em r ec og n it i on
The CPL has not been founded because there was a problem in the sector but because
the different actors had the will to regroup and make sure certain principles in
advertising (in general) were respected in Luxembourg. Out of this will emerged the
CPL in form of a non-profit organisation. The CPL is completely financed by the
contributions of its members.
6 . 2 . 2 D o es th i s a p pr oa c h t o re g ul a t in g fo od a d ve rt i se m en ts a i m ed a t ch i l dre n
c on ne ct w it h pr i o r it i es f r om ot he r p o l icy a r ea s?
Not in particular no. The current approach in Luxembourg ties to general rules in
consumer protection and upholding good commercial practices.
6 . 2 . 3 W h ic h a cto r s o r o rga n isa t i on s a r e re sp on s ib l e fo r in it ia t ing t he cu r r ent
o r ga n is a t io n of fo od a dv e rt i si ng a im ed a t ch i l dr e n?
(Please see Section 6.1.2 on the System of Regulation)
6 . 2 . 4 D e ve l o pm ent o f th e a pp r oa c h: w hi ch co nt ex tua l fa c to rs inf l ue nc ed t he
d e ve l op m ent o f t he c urr e nt a p p roa ch to r e gu la t i ng f oo d a dv e rt is i ng a im e d a t
c h i ld r en?
As is indicated above, there were not many contextual factors triggering an approach.
Luxembourg appears to have followed the recommendations of organisations such as
the EASA to attempt to regulate the area of advertising as a whole in a better manner.
6 . 2 . 5 I mp l em en ta t i on of t he a pp r oa ch : h o w wa s th i s d on e ?
By creating the CLEP, the CPL also gave consumers (private and non -profite
organizations NOT companies) the ability to go against the producer of a certain
commercial, if they think this commercial was abusive. In that case the CLEP will
reunite (usually 7 members) and discuss the content of the advert. If the content is
considered abusive, the CLEP writes a letter to the advertising company with a
recommendation what needs to be changed. So far all the advertising companies
reacted accordingly to the letter and the CLEP never had to take other measures.

60

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The CLEP however is not in charge when two companies have an argument about a
commercial spot that would have a negative effect for one of the two. These two
companies will have to go to court and let a judge decide. Also the CLEP cannot
impose a fine or even a prison sentence in any case.
Advertising companies in Luxembourg and/or members of the CPL can ask the CLEP’s
advice whenever they have a doubt about the content of a commercial they would like
to produce/sell/air.

6.3

Evaluating the outcomes and effectiveness of policies

6 . 3 . 1 H a s th e re b e en a ny r e vi e w /e va lua t ion o f t h e a p p ro a ch s o fa r?
So far there has not been e real evaluation of the system. But if you look at the
number of complaints the CLEP has to treat every year on a national level, you can
understand why no such evaluation has been made. In average the CLEP has 4 to 5
complaints a year regarding commercials, produced an aired in Luxembourg.
6 . 3 . 2 I s th er e a ny sy st em f or mo n it or i ng th e ef fe ct of t hi s a p pr oa c h t o r eg u la t i on?
I f so, wh i ch o rga n isa ti on s or a c to r ca r r i es th i s o ut?
(Please see Section 6.1.2. on the System of Regulation)
6 . 3 . 3 H o w is c om p l ia nc e w it h th es e r eg u la t io ns m on it o re d a nd e nf or c ed? W ha t
s o rts o f con se qu en c es o cc ur if a n o rga n i sa t i on/ e nt e rp r is e do e s n ot f oll o w
t he re gu la to ry r u le s in p l a c e?
(Please see Section 6.1.2. on the System of Regulation)
6 . 3 . 4 H o w ef fe ct iv e d o y ou f ee l t h is p ra c t ic e i s in c on tr i bu t in g t o a g oo d r eg u la t i on
o f fo od a d ve r t is in g a i me d a t ch i l d re n? P l ea s e e x p la in.
The approach appears relatively effective in that it is proportionate in severity with
the size of the problem in Luxembourg, that is to say, not a very large problem.
6 . 3 . 5 H a v e th er e b e en a ny o bs ta c l es o r cha l l en ge s en co unt e re d i n de v el o p in g a nd
i m p l em en ti ng th i s a p pro a ch t o re gu la t ing f oo d a dv e rt i s ing a im e d a t
c h i ld r en?
A slight problem in the system is in the case of an international company. If the
headquarter of a company is based in Luxembourg, all complaints go through
Luxembourg, even if the Luxembourgish consumer never was confronted with the
commercial spot. If for example, iTunes in England airs a commercial that British
consumers would find offensive, the complaint would end up with the CLEP in
Luxembourg, who would then have to return the complaint to the competent organism
in England.

6.4

Transferability

6 . 4 . 1 D i sc us s ion o n t ra nsf e ra b i l i ty o f a pp ro a ch
The self-regulating system in Luxembourg works, but the way it works is also due
(once again) to the size of the country. It is uncertain that the same system could
work in a bigger country with different or more levels of authority.
6 . 4 . 2 P ot en t ia l o bs ta c l es t o tr a n sf er r in g th is a p p r oa c h to ot he r na t i ona l con te xt s
(Please see Section 6.4.1. above)

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7
7.1

Norway
Description of Current national approach to regulating food
advertising aimed at children

7 . 1 . 1 H o w is f oo d a dv e rt i si ng to wa rd s c h i ld r en d ef ine d in th e cou nt ry? Do di f fe r en t
a c to rs u se d i ff e re nt d efi n i t ion s?
In Norway there is a statutory regulation on advertising, the Norwegian Marketing
Control Act and a system of self-regulation of concerning the marketing of food
towards children specifically.
Within the statutory regulation for this area, the Marketing Control Act, implements
the EU directive 2005/29/EC on unfair commercial practices. The law has a broader
focus on good, fair marketing practices rather than a specific emphasis on children or
specific products. The Marketing Act does however, refer to children in a special
section (Section 19) but this focuses on how children should be viewed in the context
of upholding fair advertising practices. Children are defined as individuals under the
age of 18 and in practice; the provisions are interpreted more strictly when children
are involved.
The Marketing Control Act covers all forms of media and all products across all
consumers and is thus relatively broad in its focus. If it can be argued that a
marketing form is somehow misleading or unfair then it falls under the mandate of the
Marketing Control Act
Other laws which have bearing on how food and drinks are advertised towards children
include the Norwegian Broadcasting Act and the Norwegian Education Act. The
Broadcasting Act applies to “the transmission of speech, music, images and the like by
wire or over the air, intended or suitable for direct and simultaneous reception by the
public” and involves a general ban on all advertisements aimed at children via
broadcast media. Within the Act section 3.1 specifically refers to children, stating that
“advertisements may not be broadcast in connection with children's programmes, nor
may advertisements be specifically directed at children” and that “advertisements may
not be broadcast 10 minutes directly before or after children’s programmes”.
The Norwegian Education Act, introduced in 2007, states that a responsible school
owner must assure that pupils are not exposed to marketing of any kind; this
constitutes a general ban on advertisements aimed at children i n schools.
The system of self-regulation supplements the statutory regulations and focuses very
specifically on the advertising of food towards children. There is a Code in effect and
in this code children are defined as individuals less than 13 years of age. This Code is
implemented using a set of Guidelines, both of which were developed by the Food
Industry Council (MFU) and other stakeholders (for more detail see Part 2 of this
country report).
7 . 1 . 2 S y st em o f re gu la t ion f ol l o w ed b y c ou nt ry fo r re g ul a t in g fo od a d ve rt i s in g
t owa r ds ch i l d re n
Norway follows a combined approach to regulating food advertisements aimed at
children by supplementing a broad overall all Marketing Act with self -regulation from
the food and advertising industry.

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There is a self-regulatory approach which is based on a code for marketing of food and
drink aimed at children. This code was first introduced in 2007 and has been renewed
and update as of June 2009.
The code contains six points which detail:
1.

The background of the code;

2.

What sort of marketing towards children is prohibited;

3.

The products which may not be marketed to young people (by referring to a
product list which has been established for this purpose),

4.

How infringements will be assessed;

5.

Which organisation supervises the code;

6.

And when the code will be put into force.

The code has been translated into a set of guidelines which provide more detail and
insight as to how to implement the code. Examples of cases are provided in the actual
guidelines which provide help on how to interpret marketing as a principle in practice
when it is aimed at children and on assessing when marketing is specifically aimed at
children.
Sections 2 and 4 are particularly interesting as this form more concrete, practical
stipulations regarding what is and is not considered appropriate advertising of foods
and drink for children:
2.

Prohibition on marketing to children

Marketing of the products on the Product List must not be specifically aimed at
children less than 13 years. The word marketing means initiatives for promoting sales.
The following are not to be regarded as marketing:
a) The actual product, including packaging.
b) Ordinary display of products at the point of sale
c) Sponsorship which only includes the use of the sponsor's name, the sponsor's
trademark or the product trademark, including the distribution of samples with the
consent of parents and other responsible persons.
TV advertising broadcast after 21:00 hours will not be regarded as marketing
specifically aimed at children.
Source: MFU Code, 2009
4.

Assessment of infringements

When assessing whether marketing is specifically aimed at children, an overall
assessment must be made, with emphasis on the following:
a) To what extent do the media used have particular appeal for children?
b) To what extent do the advertising elements used have particular appeal for
children?
c) To what extent do the marketed products have particular appeal for children?
It should be clarified that a product and its packaging etc. will not in themselves be
regarded as marketing, see para. 2a.
Source: MFU Code, 2009 (sub-section labelling taken from online version of Code)

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The criteria from these two sections, along with a product list of which foods and
drinks may not be marketing towards children form the main bases for evaluating
whether an advertisement or commercial communication of food or drink is aim ed at
children.
The form the regulations take are mainly that of codes which have been translated
into guidelines: industry and other stakeholders (from food, health and advertising
areas) came together during the development phase and still do to discuss the
implementation of the code and which areas require closer attention or more work.
There is a general consensus amongst stakeholders from all corners that no one really
wants to advertise certain products to children. From a self -regulatory perspective
there is also an agreement amongst industry stakeholders that therefore unhealthy
food form one of these product areas that should not be advertised specifically for
children. The enforcing body, the Food Industry Council, has a product list of foods
and drinks which should not be advertised towards children.
The code contains stipulations on the basic principles for marketing towards children.
There is a product list which may not feature in any advertisements aimed at children
less than 13 years of age.
In the statutory regulations there is a general aim of upholding good marketing
practices; any marketing practice which is considered to be misleading or unfair is
therefore not allowed. Children are considered a special group of consumers in that
they are more credulous and impressionable than regular consumers and thus warrant
special consideration in advertising. For the most part however, the statutory
approach only concerns marketing aimed at children when it can be demonstrated that
the commercial communication somehow violates good advertising practices.
The self-regulatory Code on the other hand refers specifically to a number of elements
of a commercial message which mean its focus is on children. The emphasis of the
Code and the Guidelines are on:


Children ( who are defined as individuals under the age of 13);



Specific foods and drinks which should not be marketed towards children;



The media used to advertise to children, where a number are deemed particularly
appealing to children such as: social media, games, internet sites with products
aimed at children, children’s programmes on TV and radio, e -mail, certain mobile
phone apps, and printed media aimed at children;



Advertising elements aimed at children, which can include for instance whether
childlike language is used, whether cartoons or animation with particular appeal to
children is used, whether children appear in the marketing and whether people
who have particular appeal to children are used;



The extent to which the marketed products have specific appeal to children, which
can include whether the product has a shape or packaging which appeals to
children, or whether the product is primarily consumed by children.

The direct target groups of the self-regulatory approach are producers of food and
drinks and advertising and marketing enterprises. The indirect target groups are
children below the age of 13 through the self-regulatory Code, and all consumers,
including children of various ages therefore, who are affected by the Marketing Act.

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65

7 . 1 . 3 W h en wa s th e a p p roa ch i mp l em e nt ed
The self-regulatory Code was revised and updated in 2009. It was implemented in
2013 and became binding in January 2014. 16

7.2

Context in which the current national approach was developed
and implemented

7 . 2 . 1 P ro b l em r ec og n it i on
The Ministry of Healthy and Care initiated a new set of Draft Regulations for stricter
regulation of marketing of food and drinks towards children, citing the reduction of
overweight and obesity as the trigger.
The self-regulatory code for food advertisements aimed at children, updates in
response to the Ministerial invitation to change the self -regulatory approach, cites as
its rationale the protection of children from advertisements aimed specifically at them
as children as seen as a “particularly vulnerable group”.
Several large Norwegian industry players, the ANFO (Association of Norwegian
Advertisers), Virke (the Enterprise Federation of Norway), and the NHO (Norwegian
Federation for Employers) came together and reached agreement on three main areas
regarding food and drink production and marketing. These organisations Food and
Drink Industry Professional Practices Committee (MFU)
It was agreed that:


A debate on diet is of major importance;



Obesity and overweight are serious social problems;



The marketing of specified food and drink products aimed at children is no
acceptable.

A united industry of food and drink producers and suppliers opted to back and support
the MFU as a designated body to regulate and enforce a Code of practices regarding
the marketing of food and drinks to children.
The discussion regarding the latest version of the Code and its accompanying
Guidelines also involved the Ministry of Health and Care Services, the Ministry of
Children, Equality and Social Inclusion, the Norwegian Directorate of Health, and LO.
This was in response to the fact that the previous form of the Code did not include any
references to sanctions and was not very precise.
The Consumer Ombudsman in Norway suggested an all-round ban on all product
marketing aimed at children which was unacceptable to many Norwegian
manufacturers and suppliers. In response, the Norwegian food and drinks industries
and advertising stakeholders came together to improve the current system of selfregulation instead. A product list was also agreed on which should not be marketed to
children at all, in line with the three principles listed above, which the larger industry
organisations established.
There is evidence that children are more vulnerable consumers and more susceptible
to advertisements in general. Certain food and drink products have also been banned
from being advertised to children from within the industry. In this way especially
unhealthy products do not reach children and there is less stimulation aimed at
children to eventually consumer such products, thus contributing to countering obesity
and overweight as well as helping to promote a healthier diet.

16

66

MFU, the Code, available at: http://mfu.as/37542-Guidance-on-the-Code-for-marketing-of-food-and-drinkaimed-at-children

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No formal objectives have been established for the statutory or self-regulation
approaches beyond the general aims of both regulatory forms. The general aims are
to reduce the advertising of unhealthy food and drinks to children so as to reduce
overweight and obesity. The recent revisions of both the statut ory regulations and the
self-regulatory Code reflect the view however that current approaches have not done
enough to reduce advertising exposure and this is thought to be connected to the
lower reduction in obesity and overweight than hoped for by Norwegian policy makers.
7 . 2 . 2 D o es th i s a p pr oa c h t o re g ul a t in g fo od a d ve rt i se m en ts a i m ed a t ch i l dre n
c on ne ct w it h pr i o r it i es f r om ot he r p o l icy a r ea s?
This approach builds on a general mentality that certain forms of advertising aimed at
children should not be allowed; this is prevalent amongst the public, the governmental
level and the industry organisations.
7 . 2 . 3 W h ic h a cto r s o r o rga n isa t i on s a r e re sp on s ib l e fo r in it ia t ing t he cu r r ent
o r ga n is a t io n of fo od a dv e rt i si ng a im ed a t ch i l dr e n?
The Ministry of Health and Care was the main organisation re -initiating the discussion
on marketing of food and drinks towards children in 2012. Following this, the Ministry
of Health and Care, the Ministry of Children, Equality and Social Inclusion, the
Directorate of Health and industry organisations from the food and beverage, and
advertising industries came together to discuss a new approach.
The Ministry of Health and Care proposed tightening the regulations on marketing
unhealthy food and drink to children and young people in 2012. The revisions which
the Ministry proposed where to tighten the marketing of these products to anyone less
than 18 years of age. The food and beverage industry however feared that this would
pave the way to an all-out ban on marketing towards children under that age and
proposed revising the system of self-regulation. Additionally a number of clauses in
the draft regulations were not clear, the classification of unhealthy foods for instance
was not clear and seemed to cover many product areas (catfish for instance would
have been banned for being too fatty, yoghurts for containing too much sugar) 17.
The Ministry argued in turn that the ban concerned marketing and not the production,
the placement or store placement of goods. In any case, in July of 2013, the Ministry
issued a letter inviting the Norwegian food industry to develop proposals for a self regulation scheme, after having already having carried out a public consultation in
2012 on the draft regulations which tightened food marketing. These consultation
results were taken up in a new set of Draft Regulations on the Marketing of Food and
Drink to Children.
These Draft Regulations defined unhealthy foods as anything high-energy, salty,
sweet, or nutrient-poor. Furthermore, section 4 of these draft regulations ban the
marketing of such unhealthy foods to children and establish criteria for what
constitutes marketing in this area; namely, using language, colours, children in the
advertisement, gifts or using another form of promotion which appeals particularly to
children.
Though these draft regulations have been circulated in 2013, the industry has been
allowed to continue a trial of its new, revised self-regulatory code until 2015. In 2015
the approach of self-regulation will be evaluated with a consultation between the
relevant ministries and industry organisations to see whether the approaches have led
to less marketing of unhealthy foods and drinks to children.

17

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Interview Kreativit Forum.

67

Another area of debate which arose with the Draft Regulations was the link between
marketing of food and drinks towards children and overweight and obesity amongst
this group. The evidence on this front is somewhat mixed and the rol e of the food
marketing area to reduce overweight and obesity appears limited; regulating this area
and banning unhealthy food marketing will not solve the problem. However, from a
political perspective, a ban has the appearance of political action being t aken on a
social problem.
It should be noted here however that the Norwegian National Institute for Consumer
Research reported “surprisingly little advertising” of unhealthy food and drinks aimed
at children. Qualitative evidence from the industry also indicates that there is not
much advertising of unhealthy food and drinks towards children at the moment as it is
in industry organisations’ own interests as well to not go against prevailing public
opinion on the desirability of advertising certain products to children 1819.
7 . 2 . 4 D e ve l o pm ent o f th e a pp r oa c h: w hi ch co nt ex tua l fa c to rs inf l ue nc ed t he
d e ve l op m ent o f t he c urr e nt a p p roa ch to r e gu la t i ng f oo d a dv e rt is i ng a im e d a t
c h i ld r en?
The current statutory approach, where the Marketing Control Act takes precedence.
This law implements the EU directive on unfair commercial marketing practices and
was transposed into Norwegian law. The Draft Regulations of 2012 were developed
through a public consultation and circulated amongst industry organisations in 2013 to
allow for feedback. These Draft Regulations also sparked the invitation from the
Ministry of Health and Care to food and drinks industries to develop a new self regulatory approach. This new code has been implemented as a two year trial and will
be evaluated in 2015. A central body, the MFU was appointed by industry stakeholders
to enforce this Code and the MFU was crucial in leading the discussions relating to the
revision of the Code.
The self-regulatory Code was established in discussion with several relevant
governmental bodies as well as industry bodies representing the food and beverages
sectors, the advertising enterprises and employer organisations. In consultation
sessions these groups came to a self-regulatory Code which improved upon the 2007
version.
The political forces at work from the Ministry of Health and Care and of the Ministry of
Children, Equality and Social Inclusion drove the desire for stricter regulation on th e
marketing of unhealthy food and drinks towards young people. The aim of industry
marketing restrictions, from the perspective of the Ministry of Health and Care was
also to prevent children from becoming overweight. The Ministry cites the link
between childhood obesity and the likelihood of overweight children “contracting
serious illnesses later in life”. At the time of this discussion, in June 2013, everyone
on in six eight year olds in Norway was obese, helping to spark the policy debate on
further marketing restrictions. 20
In 2012 a study was also conducted on the consumption of junk food by children in
Europe which expressed serious doubts about the effectiveness of self -regulation; this
may also have compounded existing doubts regarding the self -regulatory approach.

18
19
20

68

Interview Kreativit Forum
Interview MFU
Norway: Tightening of Restrictions on Unhealthy Food Ads Aimed at Youth, August 2013
http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205403682_text

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The economic considerations of industry organisations mean that they were opposed
to more restrictions in marketing of unhealthy food and drinks, namely covering
marketing aimed at children up to 18 years old. The industry organisations feared an
all-out ban on such advertising would soon follow. There is also a common fear that
with too many restrictions on marketing of food and drinks that introducing new
products in these areas becomes very difficult, thus undermining competitiveness.
In Norway the issue of child overweight and obesity has been on the policy agenda for
some time, as is clear from several of the developments regarding food and drink
advertising in recent year. As early as 1992, the Norwegian Broadcasting Act banned
the advertisement of food and drink to children under the age of 13 21. In 2007,
Norway headed up an action network of other European states to reduce the exposure
of children to advertising featuring unhealthy foods 22. This action network enjoyed the
support of the Norwegian government at the time. The action network was involved in
adopting the World Health Organisation (WHO) recommendations and actions on
protecting children from the effects of undesirable marketing practices.
Besides this, there is also a general perception it seems in Norwegian culture that
children as a social group should be protected from advertising practices more so than
adults as they are more susceptible to (undesirable) commercial communications. This
general, social perception is reflected in the views of the food and drinks industry
enterprises as well; these recognised that no one really wants unhealthy products to
be marketed towards children and in keeping with public opinion, the industry
organisations do not feel it is appropriate to market certain products to children. This
is in their own business interests it seems as industry organisations are also keen to
avoid negative publicity or associations from advertising in a manner which is not
entirely socially acceptable. The fact that there are not many advertisements in
circulation on unhealthy food and drinks aimed at children, nor many complaints on
such advertisements, seems to suggest that there is an overall mentality across
various actor groups in Norway that it is taboo to market unhealthy food and drinks to
children. 23
The rise of social media, the internet, increasingly digitalised mobile phones mean
that there are increasing media which can reach children more easily. This leaves
more room for children to be exposed to unhealthy food and drinks advertising and
requires consideration in the regulatory approach. In the Marketing Control Act, the
stipulations are relatively broad and framed in such a way that if sufficient
components of an advertisement (including its medium) constitute unfair advertising,
or violate good marketing practices, it should not be allowed. From a self -regulatory
perspective, these new forms of media are also covered in the Guidelines which
describe how to interpret and implement to the Code.
The rise of new media, satellite TV and the internet in general mean that certain
previous regulations lose some of their strength, such as the Broadcasting Act for
instance, which does not apply to satellite TV. Additionally, cross -border advertising
using such new forms of media can also pose a challenge when it comes to
enforcement; which rules do foreign advertisements shown in Norway need to adhere
to for instance?

21
22

23

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WHO, 2011
WHO, Norway leads Europe in protecting children from “unhealthy” food marketing, 2012,
http://www.euro.who.int/en/health-topics/diseaseprevention/nutrition/news/news/2012/06/norway-leads-europe-in-protecting-children-fromunhealthy-food-marketing
Interview Kreativit Forum; interview MFU

69

An impetus for the renewed self-regulatory Code in Norway was the looming Draft
Regulations on the Marketing of Food and Drink to Children, as well as discussions at
the political level to increase the restrictions on marketing unhealthy food and drinks
to children up to 18. In an effort to avoid such an escalation in regulation, it was in
the food and beverages industries’ own interests to develop a Code of self -regulation
which better addressed the concerns regarding unhealthy food and drinks being
marketed to children.
An added factor is that the Marketing Control Act and the Broadcasting Act, with the
focus on good marketing practice and bans on advertising towards children
respectively, have led to a much more cautious environment relating to marketing
unhealthy food and drinks to children. As such there is a relatively high degree of
regulation, including self-regulation, in Norway due to such laws being in place. 24
7 . 2 . 5 I mp l em en ta t i on of t he a pp r oa ch : h o w wa s th i s d on e ?
The statutory regulatory approach, headed by the Marketing Control Act, has been
implemented by the Market Council, which is a body within the Ministry of Children,
Equality and Social Inclusion. This court was set up in 1974 and is financed by the
Ministry.
The Market Council also enforces the advertising regulations in the Broadcasting Act
and in the Norwegian Tobacco and Alcohol Act as well. The organisation forms an
administrative court of law and is involved in judging those cases where a breach in
the advertising regulations were not resolved voluntarily between the advertising
enterprise and the Consumer Ombudsman, which deals with complaints from
consumers and traders.
The self-regulatory approach has been implemented by industry organisations for a
two year trial, under the supervision of the MFU. This organisation has been selected
by the industry organisations to monitor and enforce the compliance with the Code.
There is a judging committee within the MFU which consists of several individuals who
combined provide marketing, legal, food related, governmental, and public expertise
and perspectives. These individuals within the committee (around 7 in total) judge
cases of non-compliance with the Code.
The Code has also been translated into practical Guidelines and these are readily and
publicly available on the website of the MFU. These Guidelines provide insights into
how certain cases can be interpreted using the Code. The MFU held 15 consultations
with Norwegian enterprises on understanding and applying the details of the Code and
the Guidelines in 2013, and 10 consultations with foreign enterprises that operate in
the Norwegian market (including Cocoa-Cola for instance).
The industry organisations, the ANFO (Association of Norwegian Advertisers), Virke
(the Enterprise Federation of Norway), and the NHO (Norwegian Federation for
Employers) were all involved in the implementation process as they are represented
by the MFU, the Food and Drink Industry Professional Practices Committee in Norway.
The MFU is the main body involved in implementing the self -regulatory Code. The selfregulatory approach was triggered by a hearing at the Ministry of Health and Care on
the new draft regulations, after which representatives from advertising agencies and
the big food industry producers came together to plan a self-regulatory approach
through a series of consultation meetings.

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The statutory regulations regarding marketing of food and drink towards children,
namely the Marketing Control Act and the Broadcasting Act, are implemented at the
national level and fall under the remit of the Ministry of Children, Equality and Social
Inclusion. The Consumer Ombudsman is involved in the enforcement process as it
fields the complaints from consumers and traders; where no voluntary solution can be
found to complaints the Market Council makes a ruling.
For the self-regulation approach, the MFU activities are funded by industry
contributions from the ANFO, Virke, and the NHO. The budget for the MFU is around
1.4 million Norwegian kröner.
The current approach of regulating food and drinks advertising aimed at children is a
continuation of a generally more strict approach in Norway. This area has received
policy attention and has seen relatively strict regulation compared to other European
countries since the early 1990s. The current Marketing Control Act and self -regulation
approaches reflect the Norwegian mentality that children are vulnerable consumers
how must be more protected from advertising influences, and that advertising
unhealthy food and drinks to children is not deemed to be socially or politically
acceptable.

7.3

Evaluating the outcomes and effectiveness of policies

7 . 3 . 1 H a s th e re b e en a ny r e vi e w /e va lua t ion o f t h e a p p ro a ch s o fa r?
There do not appear to have been any formal evaluations for the statutory approach
adopted in Norway to regulating advertising of unhealthy food and drink aimed at
children. There has not been a formal evaluation of the self -regulatory Code on
practices relating to the marketing of food and drink towards children.
However, based on other indicators, the current approach in Norway is not considered
adequate by the Norwegian Consumer organisations and political sphere. The fact that
obesity and overweight levels amongst children is still considered too high, combined
with the (though debated) link between advertising of unhealthy products, stricter
regulations are thought to be necessary.
7 . 3 . 2 I s th er e a ny sy st em f or mo n it or i ng th e ef fe ct of t hi s a p pr oa c h t o r eg u la t i on?
I f so, wh i ch o rga n isa ti on s or a c to r ca r r i es th i s o ut?
There does not appear to be a systematic form of monitoring of either the stator or
self-regulatory approaches. In both forms of regulation an organisation receives
complaints regarding advertisers or producers who do not comply with either the laws
or the self-regulatory Code. However this form of monitoring is more to help
enforcement in both cases, rather than systematic form of monitoring to track the
progress towards any particular stated objectives for either the legal regulations or
the Code. In the case of the Marketing Control Act, the Consumer Ombudsman and
Market Council monitor and enforce the regulation, while the MFU does so for the selfregulatory Code.

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7 . 3 . 3 H o w is c om p l ia nc e w it h th es e r eg u la t io ns m on it o re d a nd e nf or c ed? W ha t
s o rts o f con se qu en c es o cc ur if a n o rga n i sa t i on/ e nt e rp r is e do e s n ot f oll o w
t he re gu la to ry r u le s in p l a c e?
Compliance with the self-regulatory Code is considered to be very good from
qualitative evidence. There are not many complaints submitted and this is considered
as an indication of the high levels of compliance. In 2014 for instance there were 11
complaints concerning breaches with the self-regulatory code, of which the MFU
judging committee felt 3 cases were indeed non-compliant and in need of adjustment.
The consequences of non-compliance however, seem to centre on bad-publicity and
shaming within the industry areas and publicly. While this may not seem particularly
strict, few food or beverage producers appear to wish to run the risk of receiving such
bad publicity and compliance is high overall with the Code.
7 . 3 . 4 H o w ef fe ct iv e d o y ou f ee l t h is p ra c t ic e i s in c on tr i bu t in g t o a g oo d r eg u la t i on
o f fo od a d ve r t is in g a i me d a t ch i l d re n? P l ea s e e x p la in.
The practice of self-regulation is deemed quite efficient; there are few cases of non compliance in Norway. Additionally, self-regulation is generally deemed a relatively
flexible and cheap way of regulating any given policy area as it is easier to adapt to
new developments or legislative changes in a sector or policy area.
The statutory regulations are relatively broad and concern marketing practices as a
whole. If it can be argued that a marketing practice is somehow in violation of good
marketing practices, by being unfair or misleading, there is a basis for intervening
with the advertising organisation. An advertisement can be in violation of good
marketing practices in a number of ways and as such there are a number of ways in
which the Marketing Control Act can be used, making it a flexible law.
The self-regulatory Code is considered quite effective though it has not changed much
in form compared to the version form 2007 25. There were not many advertisements
regarding unhealthy food to begin with according to the Norwegian National Institute
for Consumer research 26 and based on feedback from the food and marketing indus try
associations 27.The approach in place prior to the new statutory Draft Regulations on
Marketing of Food and Drinks towards Children developed in 2012 and the revised
self-regulatory Code could therefore be interpreted as being effective.
The current Marketing Control Act and the self-regulatory Code have not been
evaluated, but are considered effective as they raise the level of caution and
awareness amongst advertising and food industry associations concerning marketing
towards children 28. There are few cases of non-compliance and few complaints are
reported to the MFU for the self-regulatory code.
The approach is also considered effective because industry enterprises are more
inclined to comply with regulations they themselves have helped to agree upon on the
one hand, and which promote what are considered to be desirable, socially accepted
marketing practices when it comes to food and beverages being advertised towards
children.

25
26

27
28

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Norway: Tightening of Restrictions on Unhealthy Food Ads Aimed at Youth, August 2013
http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205403682_text
Interview Kreativit Forum; Interview MFU
Interview Kreativit Forum

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For the self-regulatory code the consultation procedure to develop the self-regulatory
guidelines are considered successful aspects; the industry, public, health and
governmental interests were represented. Having all these interests represented
helped to reach a solution which made as many factions as possible happy. This
consensus element is deemed particularly important in coming to an effective
regulatory approach 29. Other successful elements of self-regulation are that it involves
less financial and administrative burden to develop, monitor and enforce than
statutory regulations, not to mention their being more dynamic and adaptable. Indeed
with statutory regulations organisations and enterprises more often seek out the grey
areas within the legal clauses for loop holes. This is less the case with self -regulation
where the spirit behind the codes is important.
A further successful aspect is the pervasive seeming notion in Norway across a variety
of stakeholders that advertising certain products to children is not desirable. This is
reflected in the Product List created by the industry organisations of product which are
not allowed to be advertised to children. This satisfies certain concerns form the
governmental, health and consumer voices regarding health and safety of children,
but this list does not include any new products and thus from an industry perspective
this practice does not overly restrict competition.
7 . 3 . 5 H a v e th er e b e en a ny o bs ta c l es o r cha l l en ge s en co unt e re d i n de v el o p in g a nd
i m p l em en ti ng th i s a p pro a ch t o re gu la t ing f oo d a dv e rt i s ing a im e d a t
c h i ld r en?
Self-regulation to supplement the laws in place is a good approach. The area of
marketing unhealthy food and drinks towards children was deemed too specific an
area to formally regulate in statutes and as such using a Code of self -regulation as
well is deemed a successful approach. Self-regulation is thought to be cheaper and
more efficient than implementing statutes.
Another lesson is that as industry groups do not wish for more statutory regulations
and given that they themselves are involved in the development process of these
practices, they are more likely to comply with the self-regulatory Code; it is in their
own interest to do so to avoid further, more stringent regulation.
An added strength in the Norwegian approach is the involvement of the public sector
stakeholders in the consultations and discussions on why and how the self -regulation
Code was to be adapted.
Some lessons however include the difficulty in establishing what marketing elements
have “particular appeal to children”. This is often cited in the Code and can be
interpreted differently; as such the Guidelines offer examples of what the MFU would
interpret as having a particular appeal to children. Though this is a useful step, issues
surrounding the definitions of “particular appeal to children” or “a imed at children”
remain contentious issues in both the statutory and self -regulatory approaches.
The Consumer Ombudsman, formed something of an obstacle to the current combined
approach of using laws on good practice marketing, supplemented by elf-regulations
on the specific area of marketing unhealthy food and drinks to children. The Consumer
Ombudsman felt and still feel that the approaches do not go far enough in protecting
children from the marketing of these products and that they are still vulnerable.

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7.4

Transferability

7 . 4 . 1 D i sc us s ion o n t ra nsf e ra b i l i ty o f a pp ro a ch :
The system of statutory regulations in place is considered to be quite transferable in
that it involves transposing an EU directive into national law.
From the self-regulatory perspective, this approach is also thought to be transferable.
There is an intuitive appeal to consulting with the public, governmental, health and
food and drink industries for a solution which on the one hand protects children from
overweight and obesity and helps to maintain competitiveness on the other.
The financial and organisational requirements are not extremely high; the MFU was
established by industry stakeholders in discussion with public and government bodies
(CHECK). The organisation of the MFU is headed up by one secretary and the judging
committee consists of experts from different backgrounds which are elected into the
committee. Organisationally therefore the MFU is not particularly large or complex and
does not seem to require any systems which would prevent a similar organisation
being set up in another country.
Setting up the revised self-regulatory code itself took around one year and involved
regular meetings every two weeks or so with industry and other stakeholders.
(Question: double check the stakeholders involved).
Regarding the self-regulatory approach, a key element is the consensus based,
cooperative element to developing the self-regulatory Code and Guidelines.
7 . 4 . 2 P ot en t ia l o bs ta c l es t o tr a n sf er r in g th is a p p r oa c h to ot he r na t i ona l con te xt s
In Norway the current approach is considered quite efficient and effective; the
statutory approach is complemented by the rather specific self -regulations on
marketing of food and drinks towards children. However the self-regulatory approach
may be considered effective due to the few complaints and few advertisements aimed
at children regarding unhealthy food and drinks. This in turn may also be attributable
to some degree to the relatively pervasive attitude in Norway that marketing towards
children should be done carefully as this is a vulnerable group. This cultural attitude
may form a successful component to this approach and this should be borne in mind
when transferring it to other countries.
From the self-regulatory perspective, there were not really any large obstacles to
implementation; it was seen as a good solution by all the stakeholders involved. This
may also be related to the Norwegian mentality of not regulating where it is not
necessary and to allow for competitiveness to remain in the food and drink sector. 30

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8
8.1

Slovenia
Description of Current national approach to regulating food
advertising aimed at children

8 . 1 . 1 H o w is f oo d a dv e rt i si ng to wa rd s c h i ld r en d ef ine d in th e cou nt ry? Do di f fe r en t
a c to rs u se d i ff e re nt d efi n i t ion s?
There is no unique, general and (sufficiently) clear definition of food/beverage
advertising towards children in Slovenia that would apply to all possible forms and
means of advertising.
The most elaborated definition of food advertising is included in the Audiovisual
Media Services Act (adopted in 2011) concerning audio-visual commercial
advertisements for foods in broadcasts intended to children. The definition reads as
follows: „ foods containing nutrients and substances with nutritional or physiological
effects, in particular fat, trans fatty acids, salt or sodium and sugars, excessive
intakes of which are not recommended in overall diet…“ (Article 23). This piece of
legislation, however, applies only to audio-visual media services.
In other acts, advertising to children is limited to prohibition of harmful or
inappropriate items to children in general, such as: „Advertising ... shall not include
elements that cause or might cause physical, psychological or other harm to children,
or elements that abuse or might abuse their trusting nature and lack of experience…“
(Consumer Protection Act, Art. 15), which might imply also unhealthy foods and
beverages.
The same applies to definition on advertising is intended to children. There is no
clear definition of that issue. It is generally considered that advertising is focused on
children if it concern products/services (typically) used by children. Limitations apply
for advertising of harmful and inappropriate contents in general, to different
consumers, including children.
Use of different definitions: Since the regulation (both legal acts and guidance
documents) of advertising of food/beverages to children in legal acts and policy
documents is not sufficiently clear, and e.g. precise definitions (standards) on what is
food is considered unhealthy, a vast space is left for various interpretations, for
instance:

– Age of target population - children and youth: age is defined in national RTV code,
i.e. children and under aged (up to 18 years of age);

– The contents of fat, trans fatty acids, salt or sodium and sugars (what contents is
allowed, recommended?);

– Advertising place/media: Advertising in schools is recommended to be banned
(Guidance for Nutrition in Educational Institutions), which means that schools
independently bring decisions related to food/beverage promotion actions by
industry/trade companies in schools and school events (e.g. through sponsorships);

– Due to loose criteria, advertisements can be found even in schoolbooks and journals
intended for children (frequently in disguised forms such as crosswords, puzzles,
games), not to mention internet and other media of information society.

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Criteria to judge whether advertisements are focused to children : Slovenian
legal acts and self-regulating documents do not include any specific criteria to judge
whether advertisements are children focused. According to interviewed organisations,
advertisements are considered focused to children where advertisements include
products or services (typically) used by children.
8 . 1 . 2 S y st em o f re gu la t ion f ol l o w ed b y c ou nt ry fo r re g ul a t in g fo od a d ve rt i s in g
t owa r ds ch i l d re n
Slovenia applies a combined system of statutory and self-regulation which means:


General issues, i.e. prohibition of advertising harmful and inappropriate goods
(which implies also unhealthy foods and beverages) to children, are regulated by
several laws applicable for all media (e.g. Consumer Protection Act);



Advertising unhealthy food/beverages to children in audio-visual media is
regulated in an indirect manner, namely, the Audiovisual Media Services Act
imposes on audio-visual media to adopt their own codes concerning advertising
food and beverages to children;



Audiovisual media have to have their own codes (e.g. National RTV Code), which
is mandatory but applicable of course only for such media; and



Slovenian Advertising Chamber (SOZ) that brings together three parties:
industry, advertising agencies and media (so-called „Slovenian Advertising
Triangle“), has in place the Slovenian Advertising Code (SOK), which regulates,
among other, advertising foods/beverages to children. This code is mandatory for
members of SOZ (industry, media and advertising agencies) and recommended to
non-members.

It should be also pointed out that public bodies/institutions (e.g. the National
Institution of Public Health) and NGOs (e.g. the Consumer Organisation) pay
increasing attention to advertising to children in general and advertising of unhealthy
food /beverages specifically, through development of guidelines and recommendations
for regulation and self-regulation, and by carrying out awareness raising and
information campaigns and healthy food promotion campaigns for children, parents,
educators and other professional staff involved in work with children and youth.
Forms which regulations take:
Legal acts:
As mentioned above, Slovenian has no special laws covering advertising of
food/beverages to children in general in all media, but has adopted laws and
regulations in related fields. General issues of inappropriate and potentially harmful or
misleading advertising to consumers in general are regulated by several legal acts,
e.g. Consumer Protection Act, Consumer Protection against Unfair Commercial
Practices Act, Media Act, which was partially replaced by the Audiovisual Media
Services Act (see below), and, indirectly, the Protection of Competition Act, which
prohibits unfair practice.
Only the Audiovisual Media Services Act (adopted in 2011) is clearly focused on
advertising of foods to children and under aged (i.e. up to 18 years of age). However,
it should be pointed out that this Act only applies to audio-visual media (having the
most important role in terms of accessing and persuading consumers), but does not
cover all forms and means of advertising.

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It has to be pointed out that recently amended School Meals Act (adopted in 2010,
amended in 2013) that regulates meals in educational and related institutions (from
kindergarten to secondary school level) introduces a healthy alternative (i.e. healthy
foods/beverages) as an important element of positive fight against obesity and related
physical / psychological conditions in children and youth. The Act is a result of
common efforts of ministries, public institutions and NGOs to deal with this problem in
a comprehensive manner, based on the view that prohibition of unhealthy
foods/beverages would not produce suitable results, if children and their parents are
not properly informed and aware of suitable alternatives to unhealthy foods, and
provided with easy access to such alternatives. The Act banned food/beve rage vending
machines (providing mostly unhealthy food and beverages) from schools. It introduces
subsidised healthy meals to educational institutions, together with organisational,
educational and awareness raising measures for children, parents, educator s, school
staff and other stakeholders.
It is a common opinion of all the organisations interviewed for this study, that
Slovenian legal framework covering advertising (of unhealthy foods/beverages) to
children is too dispersed (in different laws) and thus insufficiently transparent on the
one hand, while it lacks some fundamental regulations (national standards concerning
the contents of unhealthy ingredients in specific foods and beverages) on the other
hand. As such, it allows different interpretations, which, inter alia, result in increased
exposure of children to advertisements of unhealthy food/beverages in Slovenia (by
26 % during recent few years according to the research carried out by the Consumer
Association of Slovenia).
Codes of conduct, ethical codes: Since compliance with the legislation does not
necessarily imply ethical behaviour, advertising agencies (i.e. their association).
media and industry started developing mechanisms of self-regulation in the form of
ethical codes and codes of conduct in order to induct and support ethical advertising in
advertising agencies, media and industry.

– The first Slovenian Advertising Code was adopted in 1994 by the Slovenian
Advertising Chamber – SOZ (previously Slovenian Advertising Association), a
voluntary association of industry, media and advertising agencies.
The most recently updated version of SOK was developed in 2009, by the
National Code Task Force, which also included the Ministry of Health, National
Institute for Public Health, Consumers Association and the Slovenian Advertising
Chamber. SOK covers all means of advertising and regulates methods of
advertising (how to advertise), but has no competence in regulating the time
and products (what to advertise). SOK is mandatory for SOZ members and
recommended for other providers. Incompliance with the Code is dealt with by
the SOZ’s Court of Honour;

– The National RTV Code was developed in 2000 by the national Radio and TV
Company. It is a code of conduct for the national broadcast company as a
whole, covering thus several fields of operations, including advertising,
promotion and sponsorship in RTV broadcasts. The Code introduces ethic al
criteria for advertisements at national RTV. Special attention is paid to
advertisements intended to children, including various forms of engagement of
children in advertisements. Advertisements have to comply with the
International Convention on Protection of Children.
The Audiovisual Media Services Act (Article 21) imposes (Article 23) on
advertisement industry to adopt their own codes of conduct relating to
inappropriate commercial advertisements included in or accompanying
broadcasts intended for children about unhealthy food/beverages.

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Policy resolution and guidance: Slovenia has no specific strategy or political
guideline on advertising of food to children. However, based on the Resolution on the
National Programme of Dietary Policy 2005-2010 (Ministry of Health) where special
attention is paid to promotion of healthy foods and life style, several guidance
documents were developed related to the promotion of health among different groups
of population, including children and youth - from kindergarten to primary and
secondary schools. This document primarily promote healthy diets in educational
institutions, including recommendations and instructions, calls for harmonised action
of all the stakeholders involved, recommends to prohibit advertising of unhealthy food
in schools and calls for awareness raising and information campaigns. It should be
emphasised, however, that recommendations are not mandatory and schools are
independent in bringing their decisions as to allowing advertising actions in scho ols or
not.
How do the agreements, policies or legislation in place regulate advertising of food
towards children?
Legal documents: As indicated above, legal documents (except Audiovisual Media
Services Act) prohibit in general advertising of harmful and inappropriate goods and
services to children, e.g.: „Advertising ... shall not include elements that cause or might
cause physical, psychological or other harm to children, or elements that abuse or
might abuse their trusting nature and lack of experience…“ (Consumer Protection Act,
Art. 15), under which also unhealthy foods and beverages could be considered.
The Audiovisual Media Services Act is more precise; it defines (to some degree of
accuracy):

– Age, i.e. children and under aged population (up to 18 years of age); namely it
protects children and under aged population against advertising that might
affect their physical, psychological or moral development or arbitrarily and
illegally intervene with their private lives, family and home (Article 10);

– Advertising time: Advertising of inappropriate or harmful elements at TV is
limited to „… properly chosen time and technical protection aimed at preventing
access to children and youth in normal circumstances…“ (article 14);

– General limitation of TV advertising and sales in broadcasts likely to be watched
by children: Advertising is not allowed during broadcasts for children up to 30
minutes in length, and in case of broadcasts exceeding 30 minutes;
terminations of the programme for advertisements have to comply with the
requirement on the „properly chosen time“(Article 28). And further: TV shops
must not offer under aged people a possibility to enter into purchase or lease
agreements for goods and services;

– Types of products: This is the only act at all that specifically regulates
advertising of foods in broadcasts intended to children, though indirectly, by
imposing on advertisement suppliers (industry, agencies, media) to adopt their
codes of conduct regulating „… inappropriate commercial advertisements that
accompany or are included in broadcasts intended for children about … foods
containing nutrients and substances with nutritional or physiological effects, in
particular fat, trans fatty acids, salt or sodium and sugars, excessive intakes of
which are not recommended in overall diet…“ (Article 23). Such codes of
conduct have to be published and sent to the ministry responsible for media and
the national Agency for Communication Networks and Services;

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– Contents of advertisements: The Act explicitly prohibits any contents that
stimulate under aged people to purchase or lease goods and services due to
their lack of experience or credulity; or convince their parents to do so, or to
abuse trustfulness of under aged in their parents, teachers or other persons
(Article 21);

– However, this Act only applies to audio-visual media and does not regulate
other forms of advertising or media (e.g. direct sponsorships, sales promotion in
schools and events, printed media, etc.).
As shown, in the legal framework, age groups of children are not considered,
appropriate time is not further explained, and products are not defined (e.g.
criteria for foods „excessive intakes of which are not recommended in overall
diet“are missing).
Codes are in some items more detailed:

– The Slovenian Advertising Code (SOK) includes special rules in advertisements
intended for children and youth (age is not defined), as well as advertisements
involving children as actors or mannequins. SOK prohibits advertising practice
where children are directly invited to buy goods or services or to push their
parents to do so. It is also prohibited to encourage children and young people to
collect special stickers, envelopes, coupons, etc.
Special Article (18.15) is devoted to advertising of foods and beverages to
children. Key elements of SOK include prohibition of advertising high-energy
and low-nutrition value foods and beverages that contain excessive salt, sugar
and fats, limitation of advertising of foods with inappropriate nutrition profile in
schools, on radio and television between 6 and 9 p.m., and prohibition of
involvement of celebrities and cartoon characters, promotion through free gifts,
and competitions that include prizes in the form of inappropriate foods. It also
requires that advertising should not allow or encourage bad diets, such as to eat
sweets and snacks, to eat excessively, and should not mislead children as to
any potential physical, social or psychological benefits resulting from intake of
specific products.
Advertising of alcohol drinks should not be intended to people under 25 years of
age and should not present such people drinking alcoholic beverages.
In addition, advertising of low-calorie foods and diet supplements (they are
classified as food) must not be intended to children and youth.
As for advertising of food in general and soft drinks, SOK includes general
requirements (i.e. not specifically focused to children), such as: healthy life
style shall not be underestimated; ingredients in foods and beverages have to
be indicated accurately and not misleading, and any potential benefits for health
have to be scientifically grounded and provable;

– The National RTV Code pays special attention to advertisements intended to
children, including various engagements of children in advertisements.
The Code does not specifically consider advertising of food and beverages to
children.
It generally requires that advertisements shall be rejected if their content or
illustration does not comply with International Convention on Protection of
Children, if they directly encourage children to purchase the product, and if they
encourage or lead up to actions that could endanger health, safety and life of an
individual or specific social groups.

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As shown, age groups within the general group of under aged (up to 18 years of
age) are not defined in detail. Products are not defined (though, some unhealthy
foods are mentioned in SOK, such as sweets, snacks, high-energy and low-nutrition
foods, and soft drinks), while appropriate time is more precisely defined.
However, as pointed out by SOZ, the code can only regulate and recommend
methods of advertising; it cannot define products or media and time where no
applicable national standards are adopted.
Guidance: The Guidance for Nutrition in Educational Institutions (2010)
recommends prohibition of all kinds of advertising in school premises and events.
However, following of guidance recommendations is not mandatory, and some
schools (particularly due to lack of funds) might agree on one or another open or
disguised advertising.
According to the interviewed organisations, there is a vast „grey area“, which is not
adequately defined and allows different interpretations of existing legal and self regulation documents, together with practices of industry and trade in different
forms of (open or disguised) advertising, e.g. in schools (such as sports events
sponsored in the form of free T-shirts making children advertise a specific
unhealthy food article; advertisements are found in school workbooks, energy
drinks were distributed free in front of school premises, free gifts for first -year
schoolchildren included diet supplements, etc.).
Policies considering contents of advertisements: As mentioned above,
legislation and self-regulating documents require that the contents of
advertisements targeted to children, in general, should not be in conflict with the
International Convention on Protection of Children and should not:

– Include the contents that might affect children’s physical, psychological or moral
development or arbitrarily and illegally intervene with their private lives, family
and home;

– Abuse natural credulity and lack of experience in children;
– Create a feeling that children would feel inferior or less popular among their
peers, or considered to have no courage, sense of duty or loyalty, if they do not
buy/have a specific product;

– Directly urge children to collect certain stickers, envelopes, coupons, etc.;
– Involve celebrities or cartoon characters;
– Directly encourage children and their parents to purchase the goods and
services concerned;

– Encourage or lead up to behaviour that could jeopardise their or other persons’
health, safety or life;
And specifically, advertisements on foods and beverages for children must not:

– Excuse or encourage bad eating habits or unhealthy life style;
– Encourage children to eat or drink more frequently or to consume larger
quantities of food or beverages;

– Mislead children as to any potential physical, social or psychological benefits
resulting from taking certain foods.

–
Media considered: As indicated above, advertising in different forms and in different
media is regulated by laws only generally (the Consumer Protecting Act), while
advertising of food and beverages to children and youth is regulated only for audiovisual media.

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Target groups:

– Advertisement providers: Legislation does not specify different groups of
advertisement providers; the term „advertisement providers“ includes industry
(e.g. food, beverages), advertising agencies and media;

– Target users (audience): Direct target groups concerned in legal and selfregulating documents are children and their parents or guardians.
In some cases (but more frequently in promotion campaigns o n healthy
food/beverages and life style – see School Meals Act and campaigns below) also
educators (kindergarten staff, school teachers at primary and secondary level)
and other stakeholders are targeted.
8 . 1 . 3 W h en wa s th e a p p roa ch i mp l em e nt ed
Self-regulation of advertising was introduced in 1994 by the Slovenian Advertising
Code (SOK) adopted by the Slovenian Advertising Chamber – SOZ (Slovenian
Advertising Association at that time), which placed Slovenia among the first „new“
European countries introducing the system of self-regulation comparable to developed
countries. Advertising to children was regulated generally (i.e. it was not food oriented).
The most recent update of SOK, which regulates advertising of food to children, was
adopted in 2009.
National RTV Code was adopted in 2000 (it is still in use) and included general
regulation of goods and services for children and under aged (i.e. not food oriented);
The first legal regulation of advertising, the Consumer Protection Act, was adopted in
1998 and regulated advertising to children in general manner, which is still in force
although the Act has been amended several times. The Consumer Protection Act is
currently under revision.
The Audiovisual Media Services Act was adopted in 2011 and includes advert ising of
food to children.
The amended School Meals Act prohibiting food/beverage vending machines and
promoting health food in educational organisations attended by children and youth
was adopted in 2013.

8.2

Context in which the current national approach w as developed
and implemented

8 . 2 . 1 P ro b l em r ec og n it i on
The main objectives of this approach were to suppress the factors that affect
unhealthy eating habits, i.e. taking high-energy foods with low-nutrition value and
high contents of fats, sugar and salt (HFSS), and life style in children and young
population that result in fast increasing obesity and related health conditions in
Slovenian young population. Namely, according to WHO, the trend of increasing
weight in children is more intensive than in other countries. Every fourth Slovenian
child has obesity problems and Slovenian children are ranked first in consuming sugar
added soft drinks among 39 countries (OECD, 2014).

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According to the experts interviewed for this study from institutions that monitor this
issue, advertising of HFSS directly affects behaviour of children. They are a
particularly interesting target group for media, since they are more susceptible to
advertisements than adults. The main problem in advertising lays in the fact that
mostly unhealthy, HFSS food is advertised. Several Slovenian institutions involved in
monitoring of food advertising (NIJZS, SOZ, ZPS) believe that marketing of HFSS
foods and obesity in children are correlated.
8 . 2 . 2 D o es th i s a p pr oa c h t o re g ul a t in g fo od a d ve rt i se m en ts a i m ed a t ch i l dre n
c on ne ct w it h pr i o r it i es f r om ot he r p o l icy a r ea s?


The approach was clearly connected with a policy of increasing healthy life style
and individual care of health in individuals of all ages and all social groups,
including children and under aged people, as set up by the Resolution on the
National Programme of Dietary Policy 2005-2010 (Ministry of Health).



The approach is also connected with a broader objective of protecting consumers in
general against advertising unhealthy food/beverages and life style.



Another objective, already present in the current SOK, is protection of children and
their parents’ personal data through advertising intended to children, which applies
particularly to advertising through the information society media.

Further actions in this field will additionally include efforts for prohibition of (all kinds)
of advertising in schools and immediate vicinity of schools and in schoolbooks, and
might focus also on reducing advertising intended to children in general, or at least on
increasing ethical components in advertising to children.
8 . 2 . 3 W h ic h a cto r s o r o rga n isa t i on s a r e re sp on s ib l e fo r in it ia t ing t he cu r r ent
o r ga n is a t io n of fo od a dv e rt i si n g a im ed a t ch i l dr e n?


The main initiators of the current concept were the line ministries (Ministry of
Health, Ministry of Economic Development and Technology, Ministry of Education;
Science and Sports, Ministry of Agriculture, Forestry and Food), the Natio nal
Institute for Public Health (NIJZ - a public body), Consumers Association of
Slovenia (ZPS - NGO), Slovenian Advertising Chamber (SOZ - linking industry,
advertising agencies and media), media and some other stakeholders.



Responsibilities and roles:

– In general, ministries are responsible for preparation of proposals of acts (bills)
and for monitoring and enforcement of compliance with laws and regulations;

– NIJZ is responsible for a broad area of monitoring public health and public
health care system. It is involved in national and international research in
health and health-related factors, provides information necessary for
development of public health measures and proposes such measures. As such,
NIJZ has been involved in the development of the SOK Code, and in several
actions and campaigns aimed at promotion of positive alternatives to unhealthy
foods;

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– SOZ coordinates and bridges together interests of industry, media and
advertising agencies, e.g. in the development of the current Slovenian
Advertising Code (adopted 2009). SOZ works closely with its members and
monitors the conditions in the advertising market. It prepares suggestions for
measures, laws and regulations, which are harmonised among the three main
actors (industry, media and advertising agencies);
ZPS is a NGO, working on behalf of consumers. It advocates for consumer protection,
monitors and tests goods and services in order to discover non-ethical and misleading
practice. It has been involved in monitoring advertising to children for s everal years.
It suggests measures, and initiates and implements awareness campaigns. It was
involved in the development of the SOK Code and the Consumer Protection Act.
Formulation of objectives


Objectives are usually formulated based on some results from monitoring and/or
national and international research. Objectives, proposals for laws and
recommendations for actions are usually discussed in a group of involved actors
(e.g. the Task Force set up for development of SOK) and then forwarded to the lin e
ministry.



The line ministry is responsible for the development of bills, which are then – if
necessary – harmonised among other associated ministries and published for
comments (public consultation), before being forwarded to the National Assembly
for adoption.



Recommendations for actions are agreed among actors and go into
implementation.

However, it is quite common recently in Slovenia that laws are adopted without
independent research background, sufficient discussion with stakeholders, with no test
(e.g. on a smaller sample of potentially affected target groups) and by fast adoption
procedure in the National Assembly. All interviewed experts point out that regulation
of advertising to children should not skip any of these stages.
Policy debates between relevant actors and stakeholders


There is no information available about policy debates for the current concept,
which has been in force since 2009 (except the Audiovisual Media Services Act,
which was adopted in 2011, aimed at transposing the Directive 2010/13/EU to the
national laws).



Currently, there are policy debates undergoing about a new Consumer Protection
Act. The current Act was adopted in 1998 and amended several times. It is
foreseen that the Act will also regulate advertising of HFSS foods to children. As
shown by the international research funded by the European Commission (PolMark,
2009, Slovenia was one of 11 participating countries), stakeholders agree that
advertising of foods to children has to be regulated, but they do not agree on ho w
to regulate it. If we try to summarise interviews with organisations, the key topics
of current debate include the following:

– Age: The experts agree that the target group should be divided to children and
youth and further to sub-groups, because they have different needs and
perceptions. Apparently, they disagree on the upper age limit. Some of them
would set up the limit at 18 years of age, other would decrease it to 16 years or
less;

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– Standards: All experts agree that adequate standards should be in place,
defining what is and what is not an HFSS food, in order to ease decisions of
advertisement providers and consumers. It was also pointed out that standards
should be agreed at EU level (at least), because having such regulation
exclusively at national level might affect local industry (decreased
competitiveness compared to producers from other countries) at the one hand,
while it will not provide satisfactory results in consumers (foreign produc ts
available through e.g. services of the information society);

– Broadcasts and time: Experts agree that advertising should be banned in
broadcasts specifically intended for children, but do not agree about other
broadcast programmes and on appropriate time;

– Advertising in schools: Experts agree that advertising in any form, including
disguised advertising e.g. in form of free gifts or sponsorships, should be
banned from school premises, their immediate surroundings and school events,
from schoolbooks and children’s magazines;
Statutory regulation or self-regulation: There are different viewpoints observed
between SOZ and other interviewed organisations. SOZ primarily claims that
Slovenian industry should not suffer due to regulation that would be more strin gent
than in other countries, and therefore, they should not experience a worse position
compared to other countries with less regulated environment. On the other hand,
experts from ZPS and NIJZ advocate for more stringent, more transparent regulation
of food advertising to children by law, which would enable enforcement and penalising
of incompliance.
8 . 2 . 4 D e ve l o pm ent o f th e a pp r oa c h: w hi ch co nt ex tua l fa c to rs inf l ue nc ed t he
d e ve l op m ent o f t he c urr e nt a p p roa ch to r e gu la t i ng f oo d a dv e rt is i ng a im e d a t
c h i ld r en?
Please, note: the procedure described below was summarised from interviews and is
not based on proven facts. During the time concerned, there were several
organisational and staff changes in line ministries and competences were transferred
from one authority to another. As assumed, the process was carried out approximately
as follows:


The „basic“ act (Consumer Protection Act) was adopted in 1998. It generally
regulated advertising to children (not specifically oriented to food) by prohibiting
elements that could be harmful to children. This issue was also generally regulated
in the National RTV Code (2000).



The Resolution on the National Programme of Dietary Policy 2005-2010 (adopted
by the Ministry of Health in 2005) defined in its principles on dietary policy, among
others, the need of healthy food for groups with special needs (including children)
and the need to respect ethical principles by all stakeholders involved in dietary
chains, including marketing. The Resolution also pointed out the need for active
participation of professional and general public and NGOs in the implementation of
the Resolution.
Based on the Resolution, several guidance documents were prepared for different
risky groups, including children, i.e. Guidance for Nutrition in Educational
Institutions (2010), which promotes healthy food and drinks for children in
kindergartens, primary and secondary schools, and recommends prevention of
advertising HFSS foods in schools.

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

Based on increasingly frequent warnings of medical experts, competent public
institutions and NGOs concerning obesity and related health problems in Slovenian
children, the National Code Task Force was established (2008), which involved
representatives of the Ministry of Health, National Institute for Public Health,
Consumers Association, the Slovenian Advertising Chamber and other stakeholders
and other experts. The Task Force developed the Slovenian Advertising Code
(SOK), which was adopted in 2009. In SOK, advertising of HFSS food to children
was regulated in a comprehensive way for the first time, and harmonised between
three main parties (industry, media and advertising agencies) and other main
stakeholders.



A significant step forward was made by the adoption of the Audiovisual Media
Services Act (2011) that prohibits in general advertising of harmful and
inappropriate goods and services to children.



In 2013, the amended School Meals Act introduced the principles of healthy diet in
educational institutions and banned out food/beverage vending machines. The Act
has not managed to prohibit advertising in schools in spite of pressure made by
NGOs.

Accompanying activities:
It should be pointed out that along with the efforts aimed at regulation of adver tising
HFSS foods to children, public bodies (particularly NIJZ) and NGOs (Consumer
Association) in cooperation with line ministries, schools and other stakeholders,
initiated raising awareness campaigns about advertising to children and unhealthy
food among children and their parents, educational staff and other stakeholders, such
as:


Marketing Foods to Children – Whose Responsibility it is? (ZPS, 2009). The aim was
to initiate adoption of a national code. SOK was actually presented and promoted
at one of thematic tables organised during the campaign;



For School without Advertisements is another ZPS action (2012– still undergoing),
which is not exclusively focused on food. It was publicly supported by numerous
parents, several ministries and the National Institute for Public Health.

In line with a common standing that the problem of unhealthy food and life style in
children has to be dealt in a comprehensive manner, i.e. that prohibition of unhealthy
foods/beverages would not produce suitable results, if ch ildren, their parents and
other stakeholders are not properly informed and aware of suitable alternatives to
such foods, and such alternatives are readily accessible. Several actions and
campaigns of this kind were organised recently, for instance:


School Fruit Scheme a measure of common EU agricultural policy aimed at
reversing negative trends in consumption of fruits and vegetables. The measure is
aimed at raising awareness on the importance of fruits and vegetables in diet. The
scheme is implemented by the Ministry of Agriculture, Forestry and Food (20122014);



Traditional Slovenian Breakfast is a joint effort of several ministries, NIJZ,
Slovenian Chamber of Commerce and Industry and several food -processing
companies. The aim is to encourage consumption of locally produced foods and
healthy food;

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

A web portal School Pot aims at removing fast food and sweet beverages from
schools. The portal provides e-contents and e-tools associated with healthy diet
and physical activity in schools (including regulations, guidance, recommendations,
research, etc.). The portal was developed by NIJZ and the Josef Stefan Institute
and financed by the Ministry of Health.

It should be pointed out, however, that current concept of HFSS advertising regulation
is considered far from being satisfactory. The volume of food advertising to children is
growing fast; industry and advertisement providers have found their way to advertise
through children magazines, school workbooks, advertising panels in the vicinity of
schools, free gifts, sponsorships, etc.
Consequently, the interviewed organisations call for further harmonised and focused
actions in order to improve the quality and transparency of statutory regulation of
advertising HFSS food to children and youth, introduce more strict control and
penalties for incompliance, improve self-regulation in media codes, introduce active
cooperation with industry, and not least, implement systematic raising awareness and
education of children, parents, teachers and other stakeholders about healthy diet.
Contextual factors affecting current approach:
Overview of structural factors that influenced the development of the current
approach to regulating food advertising to children:


Political factors: Slovenia has no specific strategy or policy on food advertising to
children.



Economic: Actors involved in efforts for regulation of food advertising to children
are well aware of consequences resulting from reduction of such advertising to
national food industry. The food sector (both agriculture and food/beverage
production) accounts approximately for 2.5 % of national GDP and 10 % of total
employment (National Statistical Office, 2013). Trade sector is quite strong (about
4 % of GDP) and international retail food chains are significantly represented in the
country. Limitation of advertising and reduction of HFSS contents only for national
products could affect competitiveness of local products, while consumers would still
have direct access to products imported from other countries, possibly with less
restricted concepts. Consequences could also include major loss of jobs in
food/beverage industry.
Therefore, institutions and NGOs involved in initiatives for more stringent
regulation of food advertising to children insist that restrictive measures have to be
developed hand-in-hand with local industry, and that simultaneously with any
restrictions/prohibitions, it is necessary to develop opportunities for local producers
of healthy food. The actions described above (School Pot, Traditional Slovenian
Breakfast, School Fruit Scheme) have been developed and implemented with this
aim.



Social: Obesity in children has been growing very fast recently. Since 2008,
Slovenia has been affected by a severe economic crisis that resulted in loss of over
100,000. Available research works have not investigated correlation between
economic recession and obesity in Slovenia, but according to WHO, recession has
contributed to worsening quality of food consumed by children, since they cannot
afford healthy food. It is assumed that these findings can also apply to Slovenia.
On the other hand, mostly as a result of public campaigns, it seems that awareness
about healthy food and life styles gradually increases.

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

Technological: According to the interviewed experts, food advertising towards
children through internet and other non-traditional media (e.g. mobile phones) has
been growing fast, and it is difficult to control it. The issue can be handled only
through systematic education of children, and the role of parents and gu ardians in
this field is crucial.



Legal: Definitions used in Slovenia are indicated at the beginning of the study (see:
Chapter 1, Definition of food advertising towards children in Slovenia).
Enforcement is described in Chapter 3 below.



Ecological: In the campaigns mentioned above, environmental factors are clearly
considered, for instance by emphasising short supply chains in local products (less
transport).

8 . 2 . 5 I mp l em en ta t i on of t he a pp r oa ch : h o w wa s th i s d on e ?


The implementation of the approach is described in detail, together with the
development of the approach, under the item „How was the current approach to
regulating food advertising aimed at children developed“ (see above).



Actors involved in the implementation process: As mentioned earlier, legal acts
were prepared by the line ministries and adopted by the National Assembly.
Inspection services are responsible for enforcement of compliance with legal
provisions. In recently adopted acts, liable entities are provided with a period of
adjustment in order to ensure compliance of their practice with new requirements.
The National Advertising Code (SOK) was adopted by SOZ members and put into
force immediately.



Data on budgetary funds spent on development and implementation of the concept
is not available and costs cannot be assessed.



Continued or new approach: The current concept was actually started in 2009. It is
built on previous acts and self-regulations concerning advertising of potentially
harmful products and services to children (HFSS food was not considered earlier).
Therefore, regulation of HFSS food advertising is a new element in the former
concept of co-regulation.

8.3

Evaluating the outcomes and effectiveness of policies

8 . 3 . 1 H a s th e re b e en a ny r e vi e w /e va lua t ion o f t h e a p p ro a ch s o fa r?


There has been no formal evaluation carried out of the approach. Since there is no
special policy on food advertising to children set up in Slovenia and the concept
was not started and implemented as a project, there is neither systematic
monitoring and evaluation nor funds for such monitoring put in place.



NIJZ and ZPS, however, monitor the issue of food advertising to children based on
their routine and contacts with stakeholders. According to them, number of food
advertisements to children is growing, and industry finds new ways to approach
children.



SOZ has no budget available to monitor its implementation among its members. If
any violation is notified, it is dealt with the Honorary Court.



A research carried out by ZPS recently has shown that in recent years exposure of
Slovenian children to HFSS advertisements has increased by 26 percent. In
addition to audio-visual media, for instance, advertisements are found in children's
magazines (e.g. full page advertisements, mainly for less recommended HFSS
foods, often including prize competitions, a strip or a game, and appealing
characters, thus quickly attracting children's attention; advertisements are often in
disguised form, hidden in journalist articles, etc.), in school workbooks, in the form
of sponsorships at school sports events, free gifts at the first school day, etc. etc.

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8 . 3 . 2 I s th er e a ny sy st em f or mo n it or i ng th e ef fe ct of t hi s a p pr oa c h t o r eg u la t i on?
I f so, wh i ch o rga n isa ti on s or a c to r ca r r i es th i s o ut?
Enforcement of compliance with statutory provisions is carried out by inspection
services, where competences are divided between the Market Inspectorate
(advertising in general, concerning misleading, potentially harmful contents, unfair
business practices, etc.), the Health Inspectorate (dealing with health adequacy of
foods, i.e. dietary supplements, ingredients in foods for babies and small children,
etc., and not advertising), and for audio-visual media services, enforcement is
carried out by the national Agency for Communication Networks and Services.
8 . 3 . 3 H o w is c om p l ia nc e w it h th es e r eg u la t io ns m on it o re d a nd e nf or c ed? W ha t
s o rts o f con se qu en c es o cc ur if a n o rga n i sa t i on/ e nt e rp r is e do e s n ot f oll o w
t he re gu la to ry r u le s in p l a c e?
Violation of the Code (SOK) is dealt with by the Honorary Court at SOZ based on
received notifications of violation. In case of grounded complaints, the Court has the
right to request correction or withdrawal of respective advertisement, to inform
competent authorities (market inspectorate and others) and to suggest criminal
prosecution. Since 2009, the Court ruled in 10 cases.

As for sanctions: Penalties are foreseen for incompliance with statutory provisions
(e.g. in audio-visual services, penalty of EUR 6,000 to 60,000 is foreseen for
incompliance with all provisions aimed at protecting children; in the law on misleading
business practice, EUR 3,000 do 40,000 is foreseen for all types of misleading
business practice, including misleading of children, etc.). However, according to some
of the interviewed experts, penalties are too small and should be more stringent and
increased, while SOZ claims that penalties are very high and advocates for lower
penalties.
Self-regulations by codes, however, have no penalties. Violations of ethical code are
dealt by the Honorary Court (SOZ) as indicated above.
8 . 3 . 4 H o w ef fe ct iv e d o y ou f ee l t h is p ra c t ic e i s in c on tr i bu t in g t o a g oo d r eg u la t i on
o f fo od a d ve r t is in g a i me d a t ch i l d re n? P l ea s e e x p la in.
Efficiency in terms of costs and benefits in practice: As mentioned earlier,
efficiency of the concept cannot be judged, as there is no data available on the cost of
development, implementation, monitoring & evaluation and enforcement of the co regulation concept.
According to the interviewed experts, a thorough evaluation, if it were carried out,
should have taken into account cost and benefits in a broader context, i.e. not only
cost of public authorities and bodies involved in development, implementation an d
enforcement of the concept, but also costs induced by the concept in industry, media,
advertisement providers, etc. on the one hand, and benefits to health in children on
the other hand, which can be measured only in a longer-term, provided that
parameters of correlation between food advertisements and e.g. obesity in children
were scientifically proven and systematically measured.
Effectiveness of the current co-regulating concept: According to interviewed
experts, the whole concept of food advertising to children in Slovenia apparently does
not work properly, as the number of advertisements has been growing, and the same
applies for the „grey area“ of disguised advertisements (journalist articles, prizes and
games, adds in schoolbooks, etc.).

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As mentioned earlier, recent research carried out by ZPS reported the growth of
26 %; and growing of food advertisement to children was also mentioned by other
interviewed experts.
All interviewed experts agree that crucial elements should be regulated by law (e.g .
standards defining the HFSS foods; definition of children, definition of
products/services intended to children, time windows, etc.), which would also ease
self-regulation by the Slovenian Advertising Code – as pointed out, the Code can
regulate only methods of advertising and not the product, the time or other things
that are not clearly defined.
Effectiveness of sanctions and penalties: Any sanctions and penalties should be
considered in a broader context, i.e. sanctions and penalties might not be ef ficient in
all cases, for instance, according to some interviewed experts, larger good -standing
companies might pay them with no trouble and continue violations.
However, as pointed out by SOZ, advertising is not the only problem for bad eating
habits in children and youth, and cannot be solved only by prohibition and sanctions.
It needs a systematic and broader concept, and involvement of all stakeholders
8 . 3 . 5 H a v e th er e b e en a ny o bs ta c l es o r cha l l en ge s en co unt e re d i n de v el o p in g a nd
i m p l em en ti ng th i s a p pro a ch t o re gu la t ing f oo d a dv e rt i s ing a im e d a t
c h i ld r en?

Lessons learned: Main lessons learned can be summarised as follows:

– The current concept of co-regulation apparently does not work properly, as the
number of food advertisements to children and youth is grow ing in all media;

– Key elements of the concept (such as: products - standards, age groups in view
of their different needs and perception of advertising, advertising time in audiovisual media; advertising place – e.g. school premises, immediate vicinity of
schools, etc.) should be clearly, uniquely and in a transparent manner regulated
by law, preferably by a single act in order to prevent possible different
interpretation and practice induced by other laws. Clear and transparent
statutory regulation would also ease self-regulation of methods and ethics in
advertising to children;

– Effective combination of restrictions, awareness raising / education and
promotion of alternatives: As pointed out by all the interviewed experts, only
restriction of HFSS food advertising to children does not provide suitable
results. Children, their parents and other target groups of consumers have to
learn about harmful characteristics of such food and have to get easy access to
suitable healthy alternatives. It means that awareness raising and information
campaigns, that also appear in the most influential media (TV) have to be
implemented at least simultaneously with the efforts to regulate (restrict)
advertising of HFSS foods to children. Public campaigns carried out in Sloveni a
have shown good results in rising awareness among parents, teachers and other
targeted consumers;

– A comprehensive and harmonised approach has to include industry, advertising
agencies and media, and other stakeholders. An independent and forced
approach might have serious adverse effects on the „advertising triangle“
(industry, media and advertising agencies) and result in loss of jobs, which in
turn might affect behaviour of population (according to WHO, for instance, there
is a correlation between lower purchase power and the HFSS food);

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– Scientific background: Interviewed experts also pointed out that any measure
should be based on thorough investigation of the context, including specific
national features, and potential key enabling-driving factors and obstacles to
introduction of measures, which was not exactly the case in Slovenia.
Obstacles encountered in developing and implementing the approach: As mentioned
above, the current concept of co-regulation is not satisfactory. Main obstacles could
be summarised as follows:

– Existing legal environment includes several acts the adoption of which range
within the period of over 15 years. Several elements are regulated by several
acts, which allows different legal interpretations and different business practice,
and contributes to difficulties in enforcement, particularly so, as there are
different inspectorates and other public bodies responsible for enforcement of
different laws;

– National regulation vs. global context: Due to the global nature of production,
advertising and trade, certain key elements cannot be effectively regulated at
national level, for instance HFSS standards. An example: a national producer of
cereals, following recommendations by health institutions, reduced the sugar
contents in their products. However, they soon faced decreased sal es results,
because consumers preferred sweater products of foreign producers available in
shops in Slovenia.
Factors of success and risk factors:

– Factors of success: It is difficult to discuss factors of success for the current
concept of co-regulation, since it, as mentioned above, does not produce
satisfactory results in terms of volume and means of food advertising to
children.
However, a combination between discouraging (restrictive) measures (e.g.
prohibition of HFSS food in schools) and positive, enabling promotion focused on
raising awareness, information and provision of easy access to suitable healthy
alternatives has proven to be a successful approach;
Risk factors: Slovenia has been introducing its co-regulation concept in the conditions
of a severe economic crisis (steadily present since 2008), which resulted in
significantly lower purchase power of consumers, affecting both, industry (lower sales)
and consumers (they cannot afford healthy, often more expensive foods). According to
WHO, economic crisis and consumption of healthy foods are related. It is uncertain
how these circumstances, if they persist, would affect advertising to children (taking
into account desperate efforts of industry to increase their sales) on the one hand,
and to what degree the results of positive campaigns would be affected, on the other
hand.

8.4

Transferability

8 . 4 . 1 D i sc us s ion o n t ra nsf e ra b i l i ty o f a pp ro a ch


Transferability of the concept: We are not sure whether the current Slovenian
co-regulation concept as a whole is readily transferable to any other
region/country. Namely, even the best practices do not necessarily work in other
countries with different legal and business environments, different business
practice, different consumer behaviour, etc.
In terms of required elements, we could summarise as follows:

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– Intuitive appeal: Although the Slovenian concept as a whole apparently does not
work properly, it is obvious that the combination of discouraging (restrictive)
measures (restriction, prohibition) and positive promotion (awareness raising,
information and provision of easy access to suitable healthy alternatives)
implies a highly logical structure and so far proves to be a successful approach;

– Financial requirements: As indicated above, introduction of the concept has not
been set up and implemented as a project with all necessary elements (e.g.
finance) planned. Therefore, no data is available in this area;

– Other capacity requirements: The explanation concerning finance applies also to
other requirements (e.g. specific skills, human resources, administrative
capacity).
It should be pointed out, however, that development, introduction and
implementation of a new concept would necessarily need multi-disciplinary
approach, bringing together advertisement experts, industry, food experts,
health experts, experts in children’s behaviour, officials from competent public
authorities, educational experts, etc. etc.


Legal requirements:

– First, this element vitally depends on respective national legal framework
already in place (what is already regulated, where and how; which are
connections between individual legal acts); and

– Second, it is necessary to decide, upon agreement of all main stakeholders,
what needs to be regulated by law. In Slovenia, interviewed experts suggest
that the law should regulate at least the product (standards for HFSS foods),
the consumer (several age groups of children and youth based on their needs,
perception and behaviour), the time and/or the type of broadcast (in audiovisual media) where advertising is not allowed, and the place (e.g. prohibition of
advertising in schools and similar institutions).


Institutional requirements:

– Monitoring and enforcement: In case of statutory regulation, it is, however,
necessary to organise proper monitoring and enforcement by public authorities,
prosecution bodies and courts;

– Independent research & scientific capacities: They should be involved in all
stages, i.e. in development, introduction implementation, evaluation and
eventual revision of the approach. They should provide scientifically proven
information in all related fields, e.g. health conditions, advertising (m eans,
products, methods, target groups, etc.), behaviour of consumer target groups,
etc.


Self-regulation: Although self-regulating bodies usually follow and use examples
of good international practice, it is inevitable that they also consider national
specifics; among others, legal and business environment, characteristics of
industry, media and advertisement providers, and business practice used in the
country.

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8 . 4 . 2 P ot en t ia l o bs ta c l es t o tr a n sf er r in g th is a p p r oa c h to ot he r na t i ona l con te xt s


Key features in terms of transferability: As indicated above, we do not believe
that the concept as a whole is readily transferable to other regions/countries.
There are, however, certain features of the concept that could have significant role
in terms of transferability, namely The „holistic approach“ as a combination of
regulation/self-regulation and encouragement of awareness, information and
education of target groups (children and youth, parents, teachers and other staff in
educational institutions) and positive promotion of suitable alternatives on the one
hand, and involvement of all stakeholders including consumers, industry;
advertising agencies, media, scientific institutions, on the other hand.



Key obstacles: As mentioned above, key obstacles in transferring the approach to
other regions/countries would be the national context (legal and business
environment and practice, economic and social characteristics, specific
characteristics, habits and behaviour of target population, etc.) that have to be
considered in both, „transferring“ and „recipient“ countries.

EU dimension:


According to the interviewed experts, certain elements cannot be effectively
regulated at national level, due to global nature of local industry and access of
consumers to global products in local shops and to global markets through internet
and other non-traditional media. Consequently, it is suggested that standards
defining HFSS foods should be regulated (at least) at the European level, which
would ensure a level field of play of all industries involved in or associated with
food advertising to children.

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9
9.1

Spain
Description of Current national approach to regulating food
advertising aimed at children

9 . 1 . 1 H o w is f oo d a dv e rt i si ng to wa rd s c h i ld r en d ef ine d in th e cou nt r y? Do di f fe r en t
a c to rs u se d i ff e re nt d efi n i t ion s?
In Spain, the main guidelines regulating food advertising aimed at children are
included in the Code of co-regulation of food and beverage advertising directed
at children, prevention of obesity and health (PAOS Code) . This code contains
the definition and criteria of food and beverage advertising for children, which are as
follows:
An advertisement is considered to be directed at children under 12 years of age (in
audio-visual and printed media) or to children under 15 years of age (on the Internet)
according to the following criteria:
(a) The type of food product being promoted: it shall be deemed to be directed at
children under 12 years of age (or, if applicable, to children under 15 years age), if it
objectively promotes a food product primarily (measured by IRIHomescan or
KantarWorldpanel) addressed to the audience of said age;
(b) The design of the advertisement: any commercial shall be deemed to be
directed at children under 12 years of age (or, if applicable, to children under 15 years
of age) when designed in such a way that the content, language and/or images are
particularly suited to raise the attention or interest of the audience of the mentioned
age.
(c) The circumstances in which the dissemination of the advertisement is
carried out: any commercial shall be deemed to be directed at children under 12
years of age whenever it is transmitted through audio-visual or printed media, either
in a media or medium objectively and mainly addressed (measured by Sofres) to the
audience of the mentioned age, or by means of general communication media when
inserted in timetables, programming blocks, sessions or spaces which are either
directed at children under 12 years of age or with an audience composed mostly of
children under 12 years of age.
Moreover, advertising is considered to be directed at children under 15 years of age,
when it is broadcasted on the Internet, either uploaded onto a website or to a section
of a website where more than 50% of its audience are children under 15 years of age
(measured by Comscore or another similar independent organisation, appointed by the
Monitoring Commission of the present Code).
These criteria establish the age for child protection at the age of 12 in audio -visual
and printed media, whereas the age limit for Internet contents is 15 years. These age
limits have been criticised ‘considering that the limit of 15 years of age should be
extended to all areas’ (Megías y Cabrera, ‘Ética y Derecho en Publicidad’, 2013).

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In this regard, Mr Alejandro Perales, President of the Association of Communication
Users (‘Asociación de Usuarios de la Comunicación, AUC’ in Spanish), states the
following: ‘We argue that the Code should apply to children up to 15 years,
independently of the form (audio-visual or printed media, Internet), used in the
dissemination of the advertising. We also believe that the criteria to decide which
advertising is aimed at children should be reviewed. Furthermore, it would be
necessary to review some aspects related to the use of celebrities or popular
characters with children’.
9 . 1 . 2 S y st em o f re gu la t ion f ol l o w ed b y c ou nt ry fo r re g ul a t in g fo od a d ve rt i s in g
t owa r ds ch i l d re n
With regard to the regulatory system adopted in Spain, Spanish Public Administrations
chose to endorse a system of self-regulation of food and beverages advertising
directed at children, based on the favorable approach of the European Commission
towards voluntary regulation.
Specifically, this advertising is regulated by the PAOS Code, Code of co -regulation of
food and beverage advertising directed at children, prevention of obesity and health.
This Code was adopted in 2005, and subsequently amended in 2012. In particular, it
was developed in line with the ‘Principles of Advertising of Food and Beverages’ of the
EU Confederation of Agro-Food Industries (FoodDrinkEurope), approved in February
2004.
The PAOS Code is the result of an agreement signed by AECOSAN (Spanish Agency for
Consumption, Food Safety, and Nutrition, assigned to the Ministry of Health, or
‘Agencia Española de Consumo, Seguridad Alimentaria y Nutrición’ in Spanish), FIAB
(‘Spanish Federation of Food and Drinks Industries’, or ‘Federación de Industrias de
Alimentación y Bebidas’ in Spanish), AUTOCONTROL (Spanish advertising self regulation organisation, or ‘Asociación para la Autorregulación de la Comunicación
Comercial’ in Spanish), the distribution/supply sector (ANGED – National Association
of Large Supply Companies-, ASEDAS – Spanish Association of Distributors, selfservices and supermarkets - and ACES- Association of Spanish Supermarkte chains-),
hospitality (FEHR- Spanish Federation of Hospitality-) and restaurant industry/
catering (FEHRCAREM, Business Association of Modern Restaurant Chains).
The Companies and Associations that sign the Code, also accept the cr iteria included
in it.
The code was promoted in 2005 by FIAB and sponsored by the Spanish Agency
for food safety and nutrition (AESAN). The main objective of the PAOS Code was
to establish a set of rules to guide the companies adhering to it in the develo pment,
implementation and broadcasting of their advertising messages directed at children up
to 12 years old.
In any case, food and beverage advertising aimed to children is also subject to the
following general framework (in addition to the self-regulation guidelines of the PAOS
Code):


General Law 34/1988 of 11 November, on Advertising;



Law 3/1991 of January 10, on Unfair Competition and its modification in Law
29/2009, which recognizes and expressly encourages self -regulation systems;

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

Royal Decree 1334 / 1999, 31 July, approving the General Standards of



Labelling, Presentation and Advertising of Food Products;
Law 44/2006, of 29 December, improving the protection of consumers and
users, which extended the competencies of the Agency in the f ield of nutrition



(AESAN);
Law 7/2010 of 31 March, on Audio-visual Communication;



Law 11/2011, of 5 July, which creates the Spanish Food Safety Agency ;



Law 17/2011, July 5, on Food Safety and Nutrition;



European Parliament Resolution of 15 December 2010 on the impact of
advertising on consumer behaviour.

In particular, article 46 of Law 17/2011 on Food Safety and Nutrition, under the
heading ‘Advertising on food products addressed to consumers under 15 years of age’,
requests the establishment of codes of conduct that regulate the commercial
communications on food and beverages directed at children under 15 years of age.
As a result, in 2012, the PAOS code was reviewed. In particular, the commitment
to self-regulation concerning the advertising of food and beverages was expanded to
include children under 15 years of age on the Internet, taking into account the
increasing use of this means of communication in this segment of population, and thus
responding to the new Law 17/2011.
The application of the rules of the PAOS Code is affected by the age of the
audience of the specific advertisement. This is not groundless, given that the
younger the audience to whom the advertisement is addressed, the greater is their
credulity and vulnerability, and therefore, the greater the need to offer them special
protection. For this purpose, extra caution will be required in advertisements directed
at children younger than 12 years of age.
In this sense, it is worth clarifying that there is a specific Code of self-regulation on
Television content and children, which sets protected viewing times for children. This
code establishes a protection timetable as established in article 7. 2 of the General Law
on Audio-visual Communication. The protected viewing times established by both the
Code and the Law on weekdays are as follows: between 8:00 am - 9:00 am and
17:00-20:00 pm for children under 12 years of age; whereas during the rest of the
time between 6:00h and 22:00h, relative protection for minors of between 13 and 18
years of age is applied.
On the other hand, the scope of the PAOS Code involves the type of food product
being promoted, the design, and the conditions (circumstances) of dissemination
(these are the 3 main criteria applied, as previously mentioned). Meanwhile, no
restrictions on the emission frequency of commercials are made.
The target groups of this regulation are those who have voluntarily adhered to the
PAOS Code (previously listed). Meanwhile, other stakeholders are also directly
involved in this regulation, as part of the Monitoring Commission: the Spanish Agency
of Consumption, Food Safety and Nutrition; the Ministry of Agriculture, Environment
and Food; the Secretary of State of Telecommunications and Information Society; the
Consumer and Users Council; the Spanish Advertisers Association, and the Spanish
advertising self-regulation organisation (AUTOCONTROL).

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Interestingly also, in order to reinforce the application of the PAOS Code, in
September 2009, two institutions adhered to it: FORTA (Federation of Radio and
Television Organisations of the Spanish Autonomous Regions) and UTECA (Associated
Trade TV Union).
As well as this, in practice, the application of the code affects children and their
families, and ultimately, the society as a whole, given that the objective is the
prevention of obesity and health. Moreover, it should be noted that the Code falls
within the framework of the NAOS Strategy launched in 2005 by the Spanish Ministry
of Health and Consumption, which aimed at reducing the prevalence of obesity and
overweight and their health and social consequences.
On the other hand, although the PAOS Code was approved in 2005, it was
subsequently amended in 2012. In particular, the following milestones should be
mentioned:
-

2005: The PAOS Code was signed by AESAN, FIAB and AUTOCONTROL.
32 companies adhered to it;

-

2012 (December): New Agreement for adjusting the PAOS Code to recent
regulations. Signed by: AESAN, FIAB, AUTOCONTROL, ACES, ANGED, ASEDAS,
FEHR and FEHRCAREM;

-

2013 (before the Monitoring Commission - 22 May-): ratification of the
current member companies and joining of new companies from food and
beverage, catering and distribution sectors.

Concerning the procedure for companies to adhere to the PAOS Code, companies have
to sign a document of accession that commits them to:
(a) Comply with the rules of the PAOS Code;
(b) Comply with the resolutions of the Advertising Jury and Copy Advice
reports;
(c) Participate in monitoring activities;
(d) Financially contribute to the management of the program by paying the
established annual fees.
Finally, it can be said that companies which should adhere to the PAOS Code are those
companies that, in one or another form, carry out food advertising (TV, radio,
brochures, internet…) aimed at children.
According to latest data available, a total of 44 companies have joined the PAOS Code.
They agglutinate 95% of all the investment made in food and beverage te levision
advertising in children’s protected viewing times. These 44 companies take part in the
following economic sectors:

96



32 in the food and beverage industry;



4 companies in the catering and restaurant industry;



8 distribution and supply industry.

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9 . 1 . 3 W h en wa s th e a p p roa ch i mp l em e nt ed
The PAOS Code falls within the framework of the NAOS Strategy launched in 2005 by
the Spanish Ministry of Health and Consumption, which aims at ‘reducing the
prevalence of obesity and overweight and their consequences, both concerning
the area of public health and social repercussions’. This goal is shared by the World
Health Organisation and EU institutions.

9.2

Context in which the current national approach was developed
and implemented

9 . 2 . 1 P ro b l em r ec og n it i on
The PAOS Code falls within the framework of the NAOS Strategy launched in 2005 by
the Spanish Ministry of Health and Consumption, which aims at ‘reducing the
prevalence of obesity and overweight and their consequences, both concerning
the area of public health and social repercussions’. This goal is shared by the World
Health Organisation and EU institutions.
One of the main objectives of the NAOS strategy is to provide a framework of
collaboration with food industry companies to promote the production and distribution
of products that contribute to a healthy and balanced diet. Although there is not
enough scientific evidence to prove that the advertising of food and drink for children
is mostly responsible for its selection, the prescriptive effect that advertising can have
on the elements chosen to make up the diet should not be forgotten.
9 . 2 . 2 D o es th i s a p pr oa c h t o re g ul a t in g fo od a d ve rt i se m en ts a i m ed a t ch i l dre n
c on ne ct w it h pr i o r it i es f r om ot he r p o l icy a r ea s?
Childhood obesity is a multifactorial problem requiring a coordinated response from all
agents involved, including not only the industry, distributors, hotel traders, restaurant
businesses and the advertising sector, but also health authorities, parents and
educators, amongst others. Measures must go beyond the mere control of the
promotion of food products, which is a necessary measure, but not enough when
taken in isolation on its own.
In addition, it is a fundamental need to protect minors as a segment of consumers
who are still forming their personality, and therefore a re especially vulnerable to
commercial messages. In fact, commercial messages can lead them to assume certain
behaviours as normal, even if they are harmful for their health.
9 . 2 . 3 W h ic h a cto r s o r o rga n isa t i on s a r e re sp on s ib l e fo r in it ia t ing t he cu r r ent
o r ga n is a t io n of fo od a dv e rt i si ng a im ed a t ch i l dr e n?
The Spanish Food and Drink Industry Federation (FIAB) agreed to take a
constructive and proactive role in the complex and collective battle against obesity,
setting high levels of social responsibility in advertising activities, in particular those
directed at children, so that they contribute to promoting the adoption of healthy
diets and physical activity with a positive effect on their health and well -being.
When the first PAOS Code was launched in 2005, it was estimated that children used
to watch TV for an average of 2 hours and 30 minutes every day; as a result, it was
estimated that, a child under twelve years watched about 54 advertisements
per day.

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The approach developed in Spain tries to make advertising addressed to children
serious and responsible, and make it contribute to promote healthy habits so as to
reduce prevalence of obesity and overweight.
It was decided to bet on self-regulation, with the conviction that it would be a useful
and effective instrument, complementary to other approved regulations. This was a
pioneering initiative in Europe.
On the other hand, the increase in the use of Internet among children and teenagers,
and the significant increase in advertising aimed at children and teenagers in this
medium, created the need for regulation also in this area, by modifying the PAOS
Code. Internet is a secondary medium where children spend 40 minutes a day on
average (36% fewer minutes a day than the rest of the population).
On the other hand, and as previously mentioned, Law 17/2011 on Food Safety and
Nutrition, under the heading ‘Advertising on food products addressed to consumers
under 15 years of age’, requests the establishment of codes of conduct that regulate
commercial communications on food and beverages directed at children under 15
years of age. For this reason, the new PAOS Code was modified and adjusted to new
regulations in 2012.
According to the Spanish advertising self-regulation organisation AUTOCONTROL,
‘Systems of self-regulation in Spain are subject to permanent review; the more
sensitive the target sector is (as in the case of food advertising aimed at children), the
more the system must be reviewed.’ (Ms Patricia Zabala, Legal Director of
AUTOCONTROL).
9 . 2 . 4 D e ve l o p m ent o f th e a pp r oa c h: w hi ch co nt ex tua l fa c to rs inf l ue nc ed t he
d e ve l op m ent o f t he c urr e nt a p p roa ch to r e gu la t i ng f oo d a dv e rt is i ng a im e d a t
c h i ld r en?
The PAOS Code is of free membership. Companies voluntarily declare their
adherence to this self-regulation Code. These companies must sign an accession
document, which reflects their commitment to respect the rules of the Code in the
exercise of their advertising activities.
The main factors that have influenced the development of this regulation are mainly
social motives, linked to the significant increase of obesity and overweight in the
Spanish population. The prevalence of obesity and its upward trend during the last
two decades have made the term ‘epidemic obesity’ a familiar term in Spain.
Compared to the rest of Europe, Spain is located in an intermediate position regarding
the percentage of obese adults. However, looking to the youngest population, Spain
has one of the highest rates, only comparable to other Mediterranean countries.
Therefore, the main factor that motivates this regulation is health.
From a technological perspective, Spanish regulation has taken into account the
increase of the use of Internet by children, and advertising regulation in this medium
aimed at children has been extended up to the age of 15.

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Companies participating in the self-regulation PAOS Code must ensure that their
advertising messages meet a set of 25 rules, as follows:
1.

Infraction of the Principle of Legality: ‘The advertising of food products and
beverages directed at children will be in accordance with the current legislation,
whatever the content, the media or the form adopted’. In particular, any direct or
indirect advertising or promotion of food products shall be in accordance with the
prohibitions contained in articles 44.3 and 44.4 of the Law 17/2011, on Food
Safety and Nutrition’.

2.

Infraction of Principle of truthfulness (misleading advertising):
2.1.

Written, sound and visual features shall not mislead children about the
characteristics of the product promoted

2.2.

Advertisements shall not mislead about the benefits derived from the use
of the product.

2.3.

Advertisements shall not mislead children by suggesting that the food
product being promoted has special characteristics, when all similar
products have such characteristics.

3.

2.4.

Ads shall not exploit children’s imagination.

2.5.

Lack of required additional information.

2.6.

Illegible or incomprehensible indications for children.

2.7.

Infraction of Principle of truthfulness: others.

Avoid the use of frightening presentations to children (e.g. excessively violent
or aggressive presentations).

4.

Sales pressure:
4.1.

Direct appeal to children under 12 years of age to purchase the advertised
product by exploiting their inexperience or credulity or to encourage them
to ask or persuade their parents or other individuals to purchase the
advertised product.

4.2.

Urge children to obtain the advertised product, to create a feeling of
urgency or exclusivity, or resort to the use of terms susceptible to
generate such a feeling of urgency or exclusivity.

4.3.

Give the impression that acquiring or consuming food products or
beverages will make the child more acceptable among his/her friends.

5.

4.4.

Use reductionisms such as ‘only’ or ‘no more than’ concerning the price.

4.5.

Sales pressure: others

Infraction of restrictions in the use of famous characters. Included in article
16.1.b of LTVSF (Law of the Television without Frontiers): ‘In no event advertising
shall exploit the special trust that these children have in their parents, teachers or
other persons, such as professionals from children’s programmes, or characters
(real or fictitious) from films or TV’.

6.

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Unambiguous identifiability of advertising as such.

99

7.

Promotions:
7.1.

The main product advertised should be clearly shown.

7.2.

The essential conditions of the special offers in audio-visual and printed
media must be clearly and easily expressed in the advertisement.

7.3.

Advertising/promotional draws included in advertisements shall not
generate unreal expectations regarding the possibilities of winning or the
prize which may be obtained.

7.4.
8.

9.

Rules about references to children’s clubs.

Unsafe situations or harmful acts for children:
8.1.

Encourage a dangerous or inappropriate use of the product

8.2.

Show adults or children in unsafe situations.

Nutritional education:
9.1.

Present unhealthy food habits or lifestyles, such as eating or drinking
excessively, compulsively or without moderation, or foster, approve or
present sedentary life habits.

9.2.

Product shall not be shown as a substitute for any of the three main meals
(breakfast, lunch and dinner).

9.3.

Undervalue the importance of healthy eating habits.

9 . 2 . 5 I mp l em en ta t i on of t he a pp r oa ch : ho w wa s th i s d on e?
As previously mentioned, the global framework for the exercise of voluntary regulation
on advertising is managed by the Spanish advertising self-regulation
organisation (AUTOCONTROL). AUTOCONTROL is a non-profit institution created by
advertisers, agencies and media. It is a private organisation, but recognised by the
Ministry of Health, Social Services and Equality and by the European Commission.
AUTOCONTROL is part of the European Advertising Standards Alliance (EASA), and it
is recognized by the European Union as a forum for extrajudicial dispute resolution in
this area.
AUTOCONTROL is a public-private commitment to collaboration and is an ‘advertising
self-regulation organisation’. AUTOCONTROL has signed various agreements with
relevant statutory authorities in order to set up co-operation schemes (self-regulation
within a co-regulatory framework), in which advertising self-regulation co-operates
with regulators by providing with a helpful additional complement to statutory
mechanisms in place. For instance, in January 2013, the Spanish Minister of Health
approved and signed the new PAOS Code (reviewed and amended in 2012). The
Minister explained that this Code is a very useful tool for preventing obesity among
children, and she said that the voluntary adhesion of other stakeholders (such as
associations of the food and drinks industries or the HORECA and the retail sector)
was a ‘success’.
AUTOCONTROL the entity responsible for the control and monitoring of compliance of
the PAOS Code is AUTOCONTROL. In particular, the PAOS Code includes:


Self-regulation of advertising aimed at children under 12 years of age (audio visual and print media) and children under 15 years of age (Internet),
according to Law 17/2011 (arts. 45 and 46);



Recommendations and prohibitions to reduce commercial pressure on children,
both in audio-visual media and the Internet;



100

Ads Control prior to their broadcast (Copy Advice);

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

Ex-post control;



Evaluation by the Monitoring Committee (AECOSAN, MAGRAMA, SETSI, and
consumers, advertisers, manufacturers, distribution and catering businesses
organisations).

In order to ensure that advertising meets the criteria of the present Code of Co Regulation, the adhering companies agree to submit to the Technical Office of
AUTOCONTROL, for prior examination through the confidential and binding Copy
Advice Procedure, all the advertisements directed at children under 12 years of age,
and food and beverage television advertisements which are to be broadcasted on
children’s protected viewing times (these viewing times are established by the Code of
Self-regulation for Television Content and Children and the Agreement for the
Promotion of Self-Regulation of Television Content and Children, signed by television
operators and the Spanish Government in December 2004).
Regarding the above-mentioned Copy Advice System, its characteristics and stages
are as follows:


The Technical Office of AUTOCONTROL checks compatibility with Code and
legislation, prior to broadcasting;



It is compulsory and binding for advertisements aimed at children up to
12 years of age, and for advertisements broadcasted on children’s protected
viewing times;



It is confidential;



The advertisement can be presented once filmed or in previous phases (story
board);



The evaluation report is issued within a period of three days (unless it is
required to provide further documentation);



In case of disagreement with the report, it is possible to appeal to the
Advertising Jury.

Regarding the Extrajudicial ruling of disagreements and claims System, it can
be said that:


Claims can be filed by consumer associations, FIAB and other sector
associations, companies, administrations, the Monitoring Committee, etc.;



The Advertising Jury of AUTOCONTROL, after listening to the arguments of the
parties, values the advertisements claimed for breach of the code and adopts
a resolution;



The resolution is appealable in second instance to the Jury ;



According to the Code, in case of infringement, the Jury should impose
economic sanctions (of between 6,000 and 180,000 Euros) ;



It is possible to appreciate good faith (and no sanction is imposed even if the
Jury considers the claim) if the advertisement had positive copy advice;



The costs are imposed on the loser party;



All resolutions are binding, and they are made public.

On the other hand, concerning advertising directed at children under 15 years of age
on the Internet, and given the special characteristics of the I nternet which do not
allow for a regulated system of mandatory copy advice, it has been agreed to develop
a specific monitoring mechanism, which will allow for a periodical, agile and efficient
follow up and evaluation. Such monitoring will be carried out once a year by
AUTOCONTROL. This specific methodology is explained next:

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Methodology for monitoring advertising of food and beverages to children
under 15 years of age on the Internet (approved in May 2013) :
AUTOCONTOL examines the compatibility with the rules of the PAOS Code; this
experience is pioneer at European level. To this end, AUTOCONTROL analyses:


The most relevant web content product aimed to children under 15
years of age of each member company. If the company does not have
product websites directed at children under 15 years of age, the advertising
contents of the corporate web site addressed to this target are examined.



The most relevant advertisement campaigns directed at children under
15 years of age broadcasted on the Internet by member companies that are
subject to the PAOS Code.

Using tools provided by Infoades and Comscore Institutes, AUTOCONTROL looks for
brands that invest in advertising aimed at children under 15 years of age on the
Internet.
The process of monitoring of Internet advertising is as follows:
1.

Obtaining the initial sample of web sites and Internet advertisement
campaigns aimed at children under 15 years of age to be launched by member
companies adhered to the PAOS Code.

2.

First detailed legal analysis of the final sample of web sites and advertisement
campaigns on the internet. AUTOCONTROL will cross-check such information
between products and web-sites/formats using a license to access the
ADMETRIX data base to look for the most relevant campaigns/adverts f or this
target according to the PAOS Code.

3.

In depth legal analysis to determine the compatibility of web pages and
advertisements broadcasted on the internet where the PAOS Code is
applicable. AUTOCONTROL will examine the resulting advertising pieces and
will carry out its legal analysis to verify if they are compatible with the PAOS
Code and its ethical standards.

4.

If AUTOCONTROL detects any eventual infractions of the PAOS Code, it will
issue a communication informing about it to the Company concerned,
demanding for the presentation of the corresponding allegations, or an
undertaking to cease and/or immediately rectify.

5.

With all the information generated in this process, AUTOCONTROL will present
the corresponding report to the PAOS Code Follow up Commiss ion, which,
once analysed, will adopt whatever agreements it will deem necessary.

Infractions and fines:
The resolution of the Jury which determines the infringement for the advertising
activity claimed, shall fine the company when appropriate.
Infringements can be classified as minor, serious or very serious according to the
following criteria:
a)

Importance or repercussion of the infringement as regards consumers.

b) Impact of the advertising: duration of the advertising activity claimed against,
scope of the media used and number of consumers reached.
c)

Unfair competition.

d) Damage to the image of the food industry or to one of its parts or sectors.

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Having classified the infringement as minor, serious or very serious in accordance with
the above criteria, there may be aggravating factors which will be taken into
consideration by the Jury when imposing the relevant fines. The accumulation of
aggravating factors may also cause an infringement to pass from an initial
classification of ‘minor’ to ‘serious’ or from ‘serious’ to ‘very serious’.
Such aggravating factors can be as follows:
a)

Degree of intentionality.

b) Non-compliance with prior warnings.
c)

Generalisation of the infringement.

d) Recidivism.
e)

Concurrence of various infringements in the same event, or promotional or
advertising activity.

f)

Financial profit for the advertiser derived from the infringement.

g) Broadcasting during children’s protected viewing times, or using media or
supports specifically directed at children under 12 years of age.
h) Lack of collaboration with the control bodies of the Code.
In accordance with the above-mentioned criteria, the Jury will accord the imposition of
the following fines:
a) Minor infringements: from 6,000 to 30,000 Euros.
b) Serious infringements: from 30,001 to 90,000 Euros.
c) Very serious infringements: from 90,001 to 180,000 Euros.
A special fund will be established by the FIAB with the amounts collected from said
fines, which will be used to finance the cost of the programme for the control and
application of this Code, and to carry out educational and public health campaigns
promoting healthy eating habits and physical activity in collaboration with the
competent authorities.

9.3

Evaluating the outcomes and effectiveness of policies

9 . 3 . 1 H a s th e re b e en a ny r e vi e w /e va lua t ion o f t h e a p p ro a ch s o fa r?
The Spanish advertising self-regulation organisation AUTOCONTROL ensures the
compliance with and correct application of the Code, as it is the entity that manages
the self-regulation system in Spain.
AUTOCONTROL is a non-profit association, founded in 1996, made up by main
advertisers, advertising companies, media and their corresponding associations.
AUTOCONTROL has more than 449 direct and 4,000 indirect members.
9 . 3 . 2 I s th er e a ny sy st em f or mo n it or i ng th e ef fe ct of t hi s a p pr oa c h t o r eg u la t i on?
I f so, wh i ch o rga n isa ti on s or a c to r ca r r i es th i s o ut?
Moreover, according to the agreement signed with UTECA (Association of
Freeview Broadcast Commercial Televisions) and FORTA (Federation of Regional
Radio and TV Organisations), televisions cooperate in the process of monitoring and
control of the PAOS Code compliance. Thus, televisions can ask AUTOCONTROL to
issue a copy advice. Once the copy advice is elaborated, AUTOCONTROL sends the
report to all adhering televisions.

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The objective is to manage the system of self-regulation of commercial communication
on the basis of three instruments:


A Code of Conduct.



An independent body (the Advertisement Jury of AUTOCONTROL), which is
responsible for resolving disputes and complaints. As is explained on the
website of AUTOCONTROL, the Jury is fully composed of independent
prestigious professionals in the areas of Law, Commercial Communication and
Economy, who develop their activity guided by the principles of independence
and transparency. In order to ensure their impartiality, the Jury and its
members are independent from the Association and from the entities adhered
to it. The National Institute of Consumer Affairs (INC - Instituto Nacional de
Consumo) is involved in the selection of 25% of its members (i.e. 25% of the
Jury’s members are appointed in common agreement with the INC). Applying
the Code of Conduct and the rules governing its activity, the Jury resolves all
the complaints and controversies submitted against specific promotional
material.



A Technical Office which provides assistance prior to ad broadcasting
through Copy Advice. It is non-binding assessment of advertisements (before
their public emission), requested by the advertiser. As well as this, the
Technical Office also provides information and assessment on legal issues,
solving brief queries related to the judicial framework. As a whole, the
Technical Office works as a legal and technical team, composed of experts on
law and advertising ethics, in charge of attending legal requests, answering
prior consultations or issuing Copy Advice reports on advertisements or
advertising projects and creating reports on legal and ethical issues related to
commercial communication.

In order to follow-up the effective implementation of the assumed compromises within
the framework of the PAOS Code, a mixed Monitoring Commission is established,
made up of:


One representative of the Ministry of Agriculture, Environment and Food ;



One representative of the Secretary of State for Telecommunications and
Information Society (SETSI);



Three representatives of the Consumers and Users Council;



One representative of the Spanish Advertisers Association (AEA) ;



Three representatives of the Spanish Food and Drink Industry Federation
(FIAB);



One representative of the Commercial Retailing Sector;



One representative of the Hotel Trade and Modern Restaurant Businesses and



One representative of AUTOCONTROL who will act as Secretary.

The Monitoring Commission chaired by the AESAN (Spanish Agency for Food Security
and Nutrition) and made up of representatives from FIAB, AEA and the Board of
Consumers and Users. AUTOCONTROL acts as Secretary of this Commission. The
Monitoring Commission is in charge for carrying out the following tasks:
a)

Evaluating the application of the Code regarding the objectives established by
the NAOS Strategy.

b) Proposing improvements and reviews of the Code deemed necessary to the
FIAB /they must be also informed about the projects to modify the content of
the Code if FIAB reviews it).
c)

Regularly reviewing the reports on the compliance of the Code presented by
AUTOCONTROL.

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d) Presenting claims before AUTOCONTROL’s Advertising Jury (if it is considered
that there has been an infringement of the standards of the Code).
e)

Examining the claims or complaints presented by individual consumers or by
any other individuals, bodies or collectives, so as to clarify if there are signs of
infringement of the Code.

f)

Applying for information whether certain advertisements, already publicly
available, were the object of copy advice by AUTOCONTROL’s Technical Office,
and their result.

The Monitoring Commission must hold meetings periodically. The frequency of these
meetings depends on the requirements for the correct development of its functions.
The functions of the Monitoring Commission are as follows:
a)

The Commission will regularly evaluate the application of the Code in relation
to the goals established by the NAOS Strategy.

b) The Commission will propose improvements and reviews of the Code deemed
necessary to the FIAB, and will be aware of the projects to modify the content
of the Code when FIAB carries out reviews.
c)

The Commission will regularly review the reports presented by AUTOCONTROL
concerning the compliance with the Code.

d) The Commission, when it estimates that there has been an infringement of the
standards contained in the Code, may decide to present the claims before
AUTOCONTROL’s Advertising Jury.
e)

The Commission will also examine the claims or complaints presented by
individual consumers or by any other individuals, bodies or collectives, in
order to clarify whether there are indications of infringement of the standards
contained in the Code of Co-Regulation, and to decide, in each case, whether
or not to send them to the Advertising Jury.

f)

The Commission may apply to AUTOCONTROL for information whether certain
advertisements, publicly available as broadcasting has commenced, were the
object of copy advice of AUTOCONTROL’s Technical Office of and the result of
it.

All this work of control and monitoring results is published in annual reports, which
show that Spain is the EU country where more advertising campaigns are subject to
voluntary control before its broadcast, and that there is a low number of complaints
against already broadcasted campaigns.
The European Advertising Standards Alliance (EASA), the European advertising self regulation organisation that promotes responsible advertising via best practices in
self-regulation, publishes annual reports on activity data achieved by national
advertising self-regulation bodies.
According to the 2012 Report, ‘the Spanish system of self -regulation AUTOCONTROL,
shows a high level of activity and an excellent performance, ranking for the second
consecutive year as the second national body (behind the United Kingdom) that has
received more voluntary requests for copy advice from the advertising industry’.
Looking at the results of this report, ‘the Spanish advertising industry enjoys a good
ethical health. AUTOCONTOL says that the self-regulatory system works and the copy
advice and claim system implemented help ensure the compliance of the responsibility
assumed by the Spanish advertising industry.’

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Also, it should be noted that the extension of the PAOS Code to the Internet is unique
at European level, and it is a useful and highly valued tool by national and
international agencies.
9 . 3 . 3 H o w is c om p l ia nc e w it h th es e r eg u la t io ns m on it o re d a nd e nf or c ed? W ha t
s o rts o f con se qu en c es o cc ur if a n o rga n i sa t i on/ e nt e rp r is e do e s n ot f oll o w
t he re gu la to ry r u le s in p l a c e?
(Please see Section 9.5.2 on Implementation)
9 . 3 . 4 H o w ef fe ct iv e d o y ou f ee l t h is p ra c t ic e i s in c on tr i bu t in g t o a g oo d r eg u la t i on
o f fo od a d ve r t is in g a i me d a t ch i l d re n? P l ea s e e x p la in.
Although data on the reduction of obesity and overweight children due to advertising
regulation is not available, a reduction in exposure of children to advertising has been
noted. At the least, it can be observed that the quality of advertisements shown is
better. For instance the PAOS Code takes into account children viewing times, and
tries to make advertising addressed to children serious and responsible, and
contribute to promote healthy habits. Moreover, the PAOS Code includes a collection
of rules, such as avoiding misleading advertising (principle of truthfulness) or sales
pressure, and promoting healthy habits and nutritional education.
Some data from the activity of AUTOCONTROL in monitoring the
implementation of PAOS Code:
The number of copy advice requested, before its broadcast, on food advertising
aimed at children is estimated at 3,689 (2006-2013). Of these, 2,931 have been
positive, 609 have required modifications and 149 have been negative.
The main reasons why the copy advice have led to negative results or modifications
have been the following ones:


Restrictions on the presence and participation of famous people (237);



Obligation to indicate the essential terms for the promotion in a simple, clear,
readable and understandable way for children (188);



Written, audio or visual presentations, etc. that may induce to error on the
characteristics of the product (168);



Direct appeal to children to buy the product, or encourage them to persuade
parents (152).

Conclusions related to web monitoring:
With regard to the results of the control and monitoring of advertising on the Internet
by AUTOCONTROL, the following conclusions can be extracted:


The legal analysis of 44 web pages has been made;



In 30 of the 44 web pages there have been no signs of incompatibility with the
PAOS Code (68%);



There have been observations made in relation to 14 websites (32%);



The main reasons for eventual non-compliance detected on the website have
been the presence of celebrities, the incorrect reference to promotions
(without highlighting its duration), and the incitement or direct appeal to
purchase;



Concerning the 14 communications made to companies: in 12 cases companies
have responded by committing themselves to the immediate termination or
rectification of the website or campaign/advertisement in question;
meanwhile, allegations have been made only in 2 cases.

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Conclusions related to the monitoring of campaigns/advertisements:


Advertising has been reviewed in 97 sites;



Initially, a total of 99 creativities have been analysed (among all the
campaigns of the brands adhered to PAOS). Out of them, 51 adverti sements
have been considered, a priori, aimed at children under 15 years of age.
Amongst these 51, finally 22 creativities were selected after strictly applying
the methodology;



These 22 campaigns have been subject to legal analysis and only 5 have been
considered to be aimed at children under 15 years of age (thus, only those fall
within the scope of PAOS);



No infringement of the PAOS Code has been detected.

On the other hand, the Spanish Agency of Consumption, Food Safety and Nutrition of
the Ministry of Health, Social Services and Equality, publishes the report ‘Evaluation
and Monitoring of the NAOS Strategy: minimum set of indicators’. There are 3
indicators which refer to the PAOS Code, as follows:


Percentage of food and beverages advertising (PAB) directed at children aged
4 to 12;



Percentage of food and beverages advertising by companies adhering to the
PAOS Code (PABPAOS) aimed at children aged 4 to 12;



Percentage of food and beverages advertising (PAB) directed at children aged
4 to 12 in children’s protected viewing times (HPR).

Finally, these are the conclusions made by the heads of the coordination of the NAOS
Strategy in terms of the results of the application of the PAOS Code in July 2014:
a)

The companies adhering to the PAOS Code have carried out a considerable
effort over the last years to adapt their campaigns to this ethical code. This is
evidenced by the large number of copy advice requests received by the
Technical Office of AUTOCONTROL, their adaptation to the indications
received, and the low number of claims presented.

b) The implementation of the PAOS Code has resulted in the improvement of
advertising addressed to children, reflected in practices such as:


Adoption of greater precautions to avoid the risk of misleading children.



Reduction of sales pressure on children. This is evident in the significant
reduction in the use of fictional characters and celebrities in advertisements,
the ending of the inclusion of posts creating a feeling of urgency to purchase,
and the greater presence of the food or beverage promoted together with the
corresponding promotional gift, etc.



More educational contents, from a nutritional and health perspective. Thus, as
an example, it can be mentioned that food is not presented as a substitute of
main meals, and also we can see advertisements with children doing sports,
no sedentary activities, etc.

9 . 3 . 5 H a v e th er e b e en a ny o bs ta c l es o r cha l l en ge s en co unt e re d i n de v el o p in g a nd
i m p l em en ti ng th i s a p pro a ch t o re gu la t ing f oo d a dv e rt i s ing a im e d a t
c h i ld r en?
However, there are other studies that show less favourable results. In particular, the
Doctor in Medicine Miguel Ángel Royo, in collaboration with two other researchers, has
led an evaluation study on the compliance degree of the PAOS Code on television.
According to this study ‘only 30% of advertisements comply with all the requisites
included in the PAOS Code’.

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Furthermore, according to Dr Miguel Angel Royo (the author of the evaluation), ‘Self regulation Codes do not reduce substantially the high volume and the strong impact of
advertising of fattening foods and beverages on children, even when they strictly meet
the requisites. The only food advertisements that should be allowed for children are
those who contribute to encourage a healthy diet. Only the food ind ustry discusses the
need of legal restrictions and argues that self-regulation systems work well. The
model to follow should be that of Sweden and Norway, where they do not allow any
type of advertising aimed at children under 12 in television’.
Other conclusions reached by this evaluation study are as follows:


Advertisements of dairy foods and meat and derivatives, infringe the code
more often;



Advertisements broadcast during the weekend showed a worse code
compliance than those issued during school hours;



There was a similar level of compliance among companies which had adhered
to the Code and those which had not;



The vast majority of food advertised in children’s viewing times is highly
energetic and nutrient-poor;



The PAOS Code is especially ineffective in reducing commercial pressure on
children. This objective can only be achieved through restrictive measures on
advertised products (highly energetic and nutrient-poor food and beverages)
and broadcasting frequency.

Moreover, there is also criticism concerning the self-regulation system by VSF
(Global food justice), arguing that the main problem with this Code is that none of
the points included refers to the nutritional quality of foods advertised. Thus, the
PAOS Code does not follow the recommendations given by the OMS. It only addresses
the ethics of advertising and not the nutritional quality of the product advertised, or
the emission frequency.
Additionally, according to the experts Megias and Cabrera, authors of the ‘Study of
Ethics and Law in Advertising. 2013’: ‘most of the claims submitted in relation to the
PAOS Code have been dismissed by the Jury, after considering that, although the food
advertised is for children, the advertising itself was aimed at adults, usually their
parents’.
According to Mr Alejandro Perales, President of the Association of Users of
Communication: ‘Self-regulation should not an alternative to positive regulation, but
a complement. There should be a clear legal regulation to provide a framework for
voluntary regulation models, self-regulation or co-regulation, which could even apply
the regulation in a more agile way than administrative and judicial procedures, as well
as add complementary commitments’.
Moreover, Mr Alejandro Perales says that ‘Generally speaking, adher ing companies are
meeting the PAOS Code, especially thanks to the previous work done by
AUTOCONTROL via the copy advice system. With regard to non -adhering companies,
they are not obliged to comply with the code, which is voluntary, although
occasionally they do follow it, taking into account its prestige. Overall, it is necessary
to count on a legal rule that forces companies and protects children in a general way’.

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Concerning the monitoring and control system and the work carried out by
AUTOCONTROL, Mr Alejandro Perales says that ‘AUTOCONTROL plays a very important
role in the resolution of advertising disputes out of the administrative and judicial
spheres. It guarantees a contradictory procedure for the parties and acts quickly. The
monitoring system is suitable since it boasts the participation of all stakeholders
involved in the Monitoring Committee’.
Finally, it is worth mentioning the study ‘Vulnerability of minors in advertising:
application of the PAOS Code’ (by Ms María Zambrano, in June 2014). According to
this study ‘even if the number of sanctions is really low, nowadays, illicit
advertisements are broadcasted. Thus, the Code is not being implemented in a correct
way, and it can be said that it is breaking its own rules’ (Ms Maria Zambrano).
Also, a frequent problem in advertising directed at children is that ‘we found products
aimed at children, but with advertisements addressed to adults, so they can use
celebrities’ (Ms Maria Zambrano).
In addition to this, an important error found in the Code is that it says that ‘any
product can be presented as a substitute of any of the three main meals (breakfast,
lunch and dinner); while it is recommended that a child under 12 years should have
five meals a day. In this way, an unhealthy product could be presented as a substitute
for an afternoon snack; this could encourage the consumption of these products every
day, which does not fall within the parameters of the NAOS Strategy against childhood
obesity’.

9.4

Transferability

9 . 4 . 1 D i sc us s ion o n t ra nsf e ra b i l i ty o f a pp ro a ch
According to Ms Sara GIL (Communication Manager of AUTOCONTROL, the Spanish
advertising self-regulation organisation), the PAOS Code has meant a great
advancement in the regulation of advertisements addressed to children, not on ly
because it establishes the principles that guide their design, implementation and
dissemination, but also because it determines the mechanisms that guarantee the
control and fulfilment of the rules established.
On the other hand, according to a study carried out by the Professor in
Communication Esther Martínez and the President of the Association of Users of
Communication Alejandro Perales (see ‘Voluntary regulation on advertising. Analysis
and proposals from the PAOS Case’), ‘The evaluation of the performance of the PAOS
Code highlights the enormous potential of these systems to avoid bad practices in the
market, when the corresponding mechanisms are provided and those are under the
supervision of the Administration. But also, there is an excessive dep endence on the
points of view of advertisers when determining the rules of the game and their
interpretation evidence, which set limits to the whole process. In any case, despite its
shortcomings, the self-regulation system seems to be working in Spain with a high
level of consensus. In the cases studied, the resolutions of the Jury are normally
complied with’.
Furthermore, this same study states that ‘although in practice AUTOCONTROL is
approaching the equivalent jurisdictional process, it lacks some elem ents which would
make it an actual legal model’.

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There are many European countries that have a self-regulation system. The European
Advertising Standards Alliance (EASA), based in Brussels, is a body that gathers all
European advertising self-regulation agencies, and it is formed by 34 self-regulation
bodies from the EU, as well as by international organisations from countries such as
Brazil, Switzerland, Canada, South Africa, and Turkey..., and 16 associations of the
European advertising industry.
According to Mr Alejandro Perales, ‘the weaknesses of the PAOS Code lie in its
voluntary nature, although the Spanish law has evolved towards turning into infraction
the breach of the code by adhering companies. Meanwhile, the main strengths are
associated with the agility of the system, and the complementary criteria established.
Overall, we believe that the Code is effective, but it could be improved’.
The analysed information suggests that the self-regulation system can be an effective
system, provided that the most delicate aspects (particularly those which can affect
the most the vulnerability of minors) are perfectly regulated by mandatory legislation.
More precisely, the most delicate issues would be as follows: the definition of
advertising aimed at children, the extension of the age of protection regardless of the
medium in which the advertising campaign is broadcasted, viewing times and the
frequency with which ads can be issued’.
In conclusion, it is estimated that a system which combines self -regulation with a
mandatory legal norm could be the most convenient one.
9 . 4 . 2 P ot en t ia l o bs ta c l es t o tr a n sf er r in g th is a p p r oa c h to ot he r na t i ona l con te xt s
In principle, the functioning and the implementation of the Spanish system is simple;
according to this system, involved companies adhere voluntarily to the PAOS Code,
and its implementation is financed by the contributions/fees paid by adhering
members, as well as by the amounts collected via sanctions.
However, in practice, the effectiveness of the system concern ing the main objective
pursued (i.e. childhood obesity control) is dubious, since there are no restrictions on
the quality of the food advertised or the frequency of advertisement broadcasting.

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10

Sweden

10.1

Description of Current national approach to regulating food
advertising aimed at children

1 0. 1. 1

H o w is f oo d a dv e rt i si ng to wa rd s c h i ld r en d ef ine d in th e cou nt ry? Do

d i ff e r ent a c to rs us e d if fe r en t d ef in i t ion s?
In Sweden radio and television advertisements of any type are banned under the
Radio and TV Law, enacted in 1996. Advertising aimed at children has however been
legally banned in Sweden since 1991. Within Swedish legislation, children are defined
as those under 12 years of age .
In addition to these statutory restraints, there is also a measure of industry led selfregulation on marketing as a whole. The self-regulatory code followed here by
Swedish marketing companies is based on the International Chamber of Commerce
(ICC) Consolidated Code on Advertising and Marketing Practice. This code also defines
children as being under 12 years of age .
In Sweden the General Marketing Act, introduced in 2008 covers all forms of
marketing practices across all forms of media. The Act implements the EU Unfair
Commercial Practices Directive (2005/29/EC). This act supersedes amongst others the
Radio and Television Act (implemented 1996). The General Marketing Act does not
specifically refer to children nor define who is considered as a “child”. It does however
mention good marketing practices as well as marketing practices which are deemed
unacceptable, and these clauses indirectly cover marketing aimed at children.
Therefore if the Swedish Consumer Agency can show that a marketing practice is not
a fair one, it can intervene. This breadth in the General Marketing Act means it can be
quite widely applied to different product areas and advertisements in different forms
of media. Though the neither the Act nor the Directive define children explicitly, there
remains an understanding at the Swedish Consumer Agency that a child in Sweden is
below 12 years of age.
In Sweden the idea of advertisements being “aimed” at children used to be the
qualifying factor for intervening and banning an advertisement which was broadcast
using TV or radio. However, this idea of being “aimed” at children has been the
subject of some contention in that it is difficult to definitively prove when something is
aimed at children. This was the case under the RTVA which is now superseded by the
General Marketing Act (GMA).
The GMA has a number of criteria which it uses to judge whether a marketing practice
is good and fair. Clauses have been introduced which ban aggressive marketing
practices and which prohibit misleading marketing practices. These are defined in
sections 5 to 7 of the GMA, under the section no “Unfair Marketing”:
Good marketing practice
Section 5
Marketing shall be consistent with good marketing practice*.
Section 6
Marketing that contravenes good marketing practice under Section 5 is to be regarded
as unfair if it appreciably affects or probably affects the recipient’s ability to make a
well-founded transaction decision.

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Aggressive marketing
Section 7
A trader may not use aggressive marketing.
Marketing is to be regarded as aggressive if it involves harassment, coercion, physical
violence, threats or other aggressive ways of bringing pressure to bear.
Aggressive marketing is to be regarded as unfair if it appreciably affects or probably
affects the recipient’s ability to make a well-founded transaction decision.
Aggressive marketing as specified in points 24–31 of Annex I to Directive 2005/29/EC
are always to be regarded as unfair.
* Under the GMA, section 3 provides a series of definitions and good practice
marketing is defined as: “generally accepted business practices or other established
norms aimed at protecting consumers and traders in the marketing of products”
Source: Swedish General Marketing Act, 2008

1 0. 1. 2

S y st em o f re gu la t ion f ol l o w ed b y c ou nt ry fo r re g ul a t in g fo od

a dv er t is in g to wa rd s c h il d r en
Sweden adopts a statutory approach to regulating advertising through the General
Marketing Act. This does not however focus on specific product areas, forms or media
or specific groups of society. The focus is on preventing unfair marketing practices
and this can include food advertisements aimed at children.
The EU Regulation on Nutrition and Health Claims Made on Food, EC 1924/2006 also
has an influence on the regulation of food advertising aimed at children. The
regulation concerns all commercial communications, including their advertising
campaigns and also indicates that advertising to vulnerable groups such as children
should be closely monitored when it comes to food advertising 31. This regulation is
monitored and enforced by the Swedish Food Ombudsman, but for those
advertisements where children are concerned the pertinent authority remains the
Swedish Consumer Agency.
Besides this statutory approach, there is also a self-regulatory approach in place
where the Swedish Advertising Ombudsman regulates advertising across all channels
in accordance with the ICC Code.
Form of the regulations in place
These regulatory approaches take the shape of a formal law on the one hand and a set
of guidelines based on a larger code on the other.


How do the agreements, policies or legislation in place regulate
advertising of food towards children? Please describe the emphasis or
focus of the approach in place. Consider for instance:
o

Are there policies or regulations concerning certain age groups? (0-7 years
of age or 7-13 for example).

o

Are there policies or regulations concerning different types of products?

o

Are there policies or regulations on during which time periods advertising
may be carried out?

31

112

EU Regulation (EC) No 1924/2006 on nutrition and health claims made on foods

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o

Are there policies concerninig the content of the advertisements?

o

Are there policies or regulations in place for different forms of media?
(i.e.: television, print, radio, online media, in the shop itself, etc ).

o

Are there any policies or regulations stipulating the number of
advertisements which may be shown in a given time period?

The self-regulatory guidelines which are used to assess the advertisements in other
forms of media follow the ICC code. The ICC code has as one of its four main
objectives to: “to enhance overall public confidence in marketing communications; to
respect privacy and consumer preferences; to ensure special responsibility as regards
marketing communications and children/young people”. T here is thus a focus on
advertising in an ethical and fair way towards children in general.
The consolidated ICC Code also refers to children as those individuals under 12 years
old. The code also indicates that when advertising to children their “natural
inexperience and credulity” should be considered when designing and showing
advertisements. In the code, Article 18 specifically addresses children and young
people. To summarise, advertisements should not take advantages of the inexperience
and credulity of children, nor contain any elements which might lead to a young
person or child to come to physical, mental or other harm, and should not undermine
the social values of the cultural context or the authority of parents or other authority
figures in a child’s life. The Swedish Advertising Ombudsman regulates and interprets
to what extent these guidelines are upheld in advertisements.
In summation, the ICC Code, which forms the basis for the Swedish self -regulatory
guidelines, restrict the content of advertisments, apparently regardless of product, in
such a way that no form of harm or undermining of social values and authority can
occur.
From the statutory perspective of the General Marketing Act, the focus is on unfair
marketing practices as a whole. Depending on which element of an advertisement
makes it in any way misleading or aggressive, violates good marketing practices, or in
anyway can be considered as unfair marketing, the Swedish Consumer Ombudsman
can legally take action. Therefore the General Marketing Act has a very broad focus
which can be applied in a relatively flexible manner.
The direct target group under the General Marketing Act are any companies which
advertise products commercially. The EC regulation on nutrition and health claims
made on foods covers any company producing and communicating about its products;
this includes product labelling and establishing nutrient profiles and targets the food
industries. The self-regulatory code of the advertising industries is one which targets
advertising companies to uphold certain standards and good practices regarding
marketing and advertising.
The General Marketing Act affects all consumers in its scope and enforcement.
Children however, forming a special group within consumers are paid close attention
by the Swedish Consumer Agency, which monitors advertisements aimed at children
within the food industry as well, as part of its activites in enforcing the General
Marketing Act.

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From the self-regulatory perspective, the indirect, end target group are also
consumers as a whole. Swedish advertising companies and organisations undertaking
commercial communications should adhere to the ICC Code which covers all
consumers, though it contains special stipulations on the vulnerability of children.
In Sweden therefore, consumer as a whole are targeted by the regulatory approaches
and children form a group in need of special consideration and protection when
monitoring and enforcing good advertising practices.
1 0. 1. 3

W h en wa s th e a p p roa ch i mp l em e nt ed

The General Marketing Act was implemented in 2008, transposing the EU Directive on
Unfair Consumer Practices. The self-regulatory guidelines upheld by the Swedish
Advertising Ombudsman are based on the ICC Code of which the most recent version
was published in 2011. The Ombudsman itself was founded in 2009 by the Association
of Swedish Advertisers, along with the Confederation of Swedish Enterprise (NDM),
Swedish Advertising Association, ICC, Swedish Direct Marketing Association and
Swedish Newspaper Publisher Association.

10.2

Context in which the current national approach was developed
and implemented

1 0. 2. 1

P ro b l em r ec og n it i on

Regarding the initial ban on advertising towards children in 1991 (where the RTVA was
adapted and implemented in1996), the rationale of the Swedish government was to
reduce the exposure of children to any form of advertisement. This position was based
on the idea that children can not distinguish between advertising messages and
programme content, coupled with the fact that children are thought to be m ore
impressionable making them more susceptible to changes in behaviour encouraged by
advertisements 32. Children are not thought to be able to distinguish advertisements
from regualr programming untill the age of 10. In the face of increasing commercial
pressure on children, the Swedish government at the time opted for a statutory ban.
This ban has now been complemented by the General Marketing Act, introduced in
2008. This law sought to implement the EU Unfair Commercial Practices Directive.
The self-regulatory code in place translated the ICC code to the Swedish context. This
regulation applies to all media and aims to ultimately promote, in line with the ICC’s
position, to responsible marketing and advertising. The latest revision in 2011
encompasses digital media as well and this has also been taken up in Sweden. The
code is regulated by the Swedish Advertising Ombudsman.
Be reducing exposure to advertisements around children’s programming and times
when children watch television, the law aims to protect children from commercial
influences as much as possible.
1 0. 2. 2

D o es th i s a p pr oa c h t o re g ul a t in g fo od a d ve rt i se m en ts a i m ed a t

c h i ld r en co nn ect w i th pr i o r it i es f ro m oth e r po l ic y a r ea s?
The approach in Sweden is driven more by human rights consideration s than obesity
or health related considerations. The statutory ban on broadcast media, which is one
of the main regulatory instruments in Sweden, seeks to protect children from
commercial influences as much as possible. The General Marketing Act now
encompasses this broadcasting ban, but this newer law also gaurds against unfair
marketing practices, which indirectly also covers advertisements aimed at children as
they are considered to be a vulnerable group in this context.
32

114

Oomen and Anderson, 2008.

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The self-regulatory ICC code which has been adopted in Sweden also aims above all to
achieve responsible advertising and marketing. In this context children are named as
a special interest group though there are no detailed provisions on how to regulate
advertisements aimed at this group in practice.
1 0. 2. 3

W h ic h a cto r s o r o rga n isa t i on s a r e re sp on s ib l e fo r in it ia t ing t he

c ur r en t or ga n i sa t io n of f oo d a dv e rt i s ing a im e d a t c h il d r en?
The initial ban on broadcast advertisements aimed at children came into force in 1991
in response to research demonstrating that children under 10 years of age could not
distinguish between advertisements and programming. This law has since been
encompassed in the General Marketing Act, which transposes the EU directive on
Unfair Commercial Practices. The governmental sphere was therefore involved in
initiating this statutory regulations.
The Swedish Advertising Ombudsman is repsonsible for the regulation of the ICC
Code. In this case therefore the ICC seems to have been responsible to a certain
extent, as well as the organisations which founded the Advertising Ombudsman in
2009. The actors involved in this included the Association of Swedish Advertisers
together with Confederation of Swedish Enterprice (NDM), Swedish Advertising
Association, ICC, Swedish Direct Marketing Association and Swedish Newspaper
Publisher Association 33.
The overall goals of the General Marketing Act is to protect consumers’economic
interests from harmful or unfair commercial practices. It encompasses the Radio and
Television Act and goes further to also cover digital media. That said, there are no
more specific objectives formulated beyond this general aim. The same applies to the
self-regulatory Code which has a general aim of promtnig responsible advertising and
marketing, but does not offer more specific objectives than this.
Some of the main policy debates concern the impact of the advertising bans on
advertising revenue. This in turn was expected to have an impact on the ability of
Swedish broadcasters and media companies to create and broadcast programme for
children. From the governmental and consumer perspective, the need to protect
children from harmful or unfair influences was the leading rationale for the policy
debate on regulating advertisements.
1 0. 2. 4

D e ve l o pm ent o f th e a pp r oa c h: w hi ch co nt ex tua l fa c to rs inf l ue nc ed t he

d e ve l op m ent o f t he c urr e nt a p p roa ch to r e gu la t i ng f oo d a dv e rt is i ng a im e d a t
c h i ld r en?
The statutory approach was developed by the Swedish Ministry for Culture initially.
This body initiated the Radio and Television Act and its ban on advertisements aimed
at children. This the came to fall under the General Marketing Act in 2008 which also
involved the Ministry for Culture as this regulation transposed the EU directive on
unfair commercial practices.
The self-regulatory aspect of the Swedish approach was initiated by a number of
organisations, the Association of Swedish Advertisers together with Confederation of
Swedish Enterprice (NDM), Swedish Advertising Association, ICC, Swedish Direct
Marketing Association and Swedish Newspaper Publisher Association. These came
together to then set up the Swedish Advertising Ombudsman in 2009.

33

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Reklamombudsmannen, 2009, http://reklamombudsmannen.org/eng/about

115

Structural factors influencing development:
The political factors at work here are the desire of the Swedish government to protect
children from harmful or unfair commercial influences. The realisation of children’s
comparative vulbnerability towards advertising when comapred with adults led in part
to the advertising ban in the early 1990s. This approach did not change much in the
following years, nor when a more right wing government came into power in 2006.
This suggests that the notion of protecting children from unfair commercial practices
is an idea which transcends political ideological divides in S weden. The main role of
the political sphere has been to push for further stricter regulation, though this no
major changes to the approaches have been incorporated 34.
Economic considerations in Sweden are similar to those in other nations; namely that
enterprises and companies producing advertisements claim that bans and regulations
restrict their activities. This in turn is said to reduce how competitively enterprises can
perform which damages their overall revenue.
From a social, cultural perspective, the Swedish national mentality towards children
and advertising is also an important factor here. There is a strong mentality in society
that children should be protected from unfair commercial influences as a matter of
basic human rights more than anything else. Advertising towards children is therefore
not so generally accepted and as such, the public seems to support the current
regulatory approach, evidenced to a certain extent in the unchanging nature of the
ban on advertising aimed at children.
Besides these factors, the development of the internet and media are also important
factors contributing to the current regulatory approach. The internet and digital media
led to an expansion of the scope of the General Marketing Act from its first version to
its current form; now digital media are included as media which can be regulated
under this act. The ICC also revised its code and the definition of marketing which was
published in 2011. This was to incorporate these media into self -regulatory codes as
well.
1 0. 2. 5

I mp l em en ta t i on of t he a pp r oa ch : ho w wa s th i s d on e?

The statutory regulation was implemented as any other law is in Sweden. This started
with the Radio and Television Act, which is regulated by the national authority in the
media sector, the Swedish Radio and Telelvision Authority (the Radio – och- tvverket). The General Marketing Act is regulated by the Swedish Consumer
Ombudsman and the implementation of this act followed the transposition procedure
for incorporating EU directives into relevant national legislation.
The self-regulatory apporach on the other hand, takes up the ICC Code into a Swedish
self-rgulatory code. This code is regulated by the Swedish Advertis ing Ombudsman.

34

116

Widmark, S., 2008, International report - New Marketing Practices Act comes into force¸ http://www.iammagazine.com/reports/Detail.aspx?g=41e8d65d-c66c-465a-8914-ddebdf1a2a1e

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10.1

Evaluating the outcomes and effectiveness of policies

1 0. 1. 1

H a s th e re b e en a ny r e vi e w /e va lua t ion o f t h e a p p ro a ch s o fa r?

From a qualitative perspective this Act is considered quite effective due to its breadth
and flexibility. Due to the concepts of “misleading” or “aggressive” marketing
practices, covered within the chapter on “unfair marketing” practices, a wide variety
of advertising and marketing practices can potentially fall under the enforcement of
the Swedish Consumer Ombudsman. This is said to be a positive aspect as it provides
for a relatively flexible legal mandate for the Ombudsman 35.
For the self-regulatory approach the Swedish Advertising Ombudsman does not appear
to monitor the effects of the guidelines specifically, but the organisation develops
annual reports describing its activities, the numbers of complaints received, across
which types of media these complaints arose and which activities the Ombudsman
took in response.
1 0. 1. 2

I s th er e a ny sy st em f or mo n it or i ng th e ef fe ct of t h i s a p pr oa c h t o

r e gu la t ion ? I f so, wh i ch o rga ni sa t i on s o r a ct o r ca r r i es th is o ut?
The self-regulatory approach is not monitored formally, but the number of complaints
received for advertisements is tracked, along with the actions taken in response. The
Swedish Advertising Ombudsman monitors this and does so with the help of
advertising industry companies as it is a self-regulatory system after all.

1 0. 1. 3

H o w is c om p l ia nc e w it h th es e r eg u la t io ns m on it o re d a nd e nf or c ed?

W ha t s or ts o f c on se qu en ce s oc cu r if a n o rga n i sa t io n/ en te r p ri s e do es n ot
f o l lo w th e re gu la to ry r ul e s i n p la c e?
The Swedish Advertising Ombudsman enforces compliance with the self -regulatory
guidelines. These are based on the Consolidated ICC Code and include a series of
possible sanctions
The General Marketing Act is monitored by the Swedish Consumer Ombudsman and
this act also contains a series of measures which the authority can undertake should
the Market Court (the judiciary body which decides upon advertisement complaints)
deem it appropriate. These measures include the payment of a financial penalty by the
traders, the prevention of the marketing practice, or an order to the trader to supply
more information. The size and reason for the fines imposed on a trader engaging in
unfair marketing practices can vary depending on how the Market Court rules; charges
may however be no less than 5000 kronor and no more than 5 million kronor 36.
1 0. 1. 4

H o w ef fe ct iv e d o y ou f ee l t h is p ra c t ic e i s in c on tr i bu t in g t o a g oo d

r e gu la t ion o f fo od a d ver t is i ng a im ed a t ch i l d re n? P l ea s e ex p la in .
The self-regulatory is considered efficient in that it is quite a flexible way of regulating
advertisements. To cite the Swedish Advertising Ombudsman, “through self regulation, it is easier to adapt codes of conduct quickly to a changing reality and they
can thus be more modern, flexible and relevant compared to laws which take longer to
amend and which may be deemed to be too general and not adapted to changes over
time. Additionally, rules which have been produced by the industry itse lf lead to
greater understanding, respect and increased compliance.” 37

35
36
37

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Interview Swedish Consumer Ombudsman
Swedish General Marketing Act, 2008
Swedish Advertising Ombudsman, Annual Report – English, 2011.

117

The statutory approach is also considered to be quite efficient in that its breadth and
focus on identifying unfair practices as a whole means many advertising practices fall
under its jurisdiction. The process of enforcing the Act however can potentially be
quite time consuming when cases must go to court to decide upon further action. This
is something which is difficult to estimate beforehand and can vary substantially.
The Swedish Consumer Ombudsman considers the General Marketing Act to be
effective and given its scope across any advertising form, content or audience, this
includes children as well. The implication is therefore that this is also an effective
approach to protecting children from unfair exposure to advertisements.
The Swedish Advertising Ombudsman finds the system of self-regulation of advertising
companies an effective practice as well given the flexibility and adaptability of the
approach to new legislation. As the system is developed by industry members, there is
a higher level of interest in producing and adhering to regulations and compliance
tends to be good 38.
1 0. 1. 5

H a v e th er e b e en a ny o bs ta c l es o r cha l l en ge s en co unt e re d i n

d e ve l op i ng a n d im p l eme nt i ng th i s a pp r oa ch t o r eg u la t in g fo od a d ve r t is i ng
a im e d a t c h i ld r en?
In both the statutory and the self-regulatory approaches the flexibility and breadth of
the approaches have been cited as successful components.
Additionally, the combination of the two, with the self-regulatory approach
complementing the legislative approach is seen as a good combined approach,
covering the main advertising activities and players 39.
In the case of the General Marketing Act, this is the transposition of an EU Directive
and as such this followed a relatively straight forward development process.
Cross-border advertisements are seen as one of the major obstacles to the current
Swedish approach to regulating advertisements aimed at children. The Swedish Market
Court (which rules on behalf of the Ombudsman) can only rule against broadcasting
channels which carry non-compliant advertisements, not against the producer of
advertisers themselves. This is possible under the Swedish law which bans advertising
aimed at children. Therefore, voices have sounded from within the Swedish
government that the Swedish ban will only truly work if the rest of Europe follows suit
with a similar ban on advertising for children, and to expand the ban to online areas
as well40.
Additionally, the definition of what is “aimed” at children is also the subject of
substantial discussion. Several cases were lost by the Consumer Ombudsman in the
Swedish Market Court when it concerned food products which were not necessarily
healthy but which could also be consumed by adults and not children exclusively.
There has been a shift it seems in the emphasis which the Market Court used in
judging cases, namely from advertising form to the content and product being
advertised 41.

38
39
40
41

118

Wistrand piece
Wistrand piece
Wall Street Journal, 2001: http://www.commondreams.org/headlines01/0529-05.htm
Caraher, M., Landon, J. and Dalmeny, K., 2005, Television advertising and children: lessons from policy
development, Public Health Nutrition: 9(5), 596–605.

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11

United Kingdom

11.1

Description of Current national approach to regulating food
advertising aimed at children

1 1. 1. 1

H o w is f oo d a dv e rt i si ng to wa rd s c h i ld r en d ef ine d in th e cou nt ry? Do

d i ff e r ent a c to rs us e d if fe r en t d ef in i t ion s?
o

What sort of criteria are used to judge whether a food advertisement is
children focused?

The UK has regulations in place for broadcasting and non-broadcasting media. In the
case oof broadcast medai there is a system of co-regulation, between the independent
regulator Ofcom (British Office of Communications) and the ASA (the Advertising
Standards Authority) which is an industry body. In the case of non-broadcast media, a
system of self-regulation is in place which is monitored and enforced by the ASA as
well. In both areas of regulation, children are defined as those individuals of 16 years
of age and under.
When judging whether a food advertisement is focused on children, broadcast media
are judged on the content on the one hand and the scheduling of the advertisement
on the other. These scheduling restrictions are based on statutory regulations in the
Communications Act of 2003 also known as “the Act”). The scheduling rules include
full bans on HFSS food advertising in and around all children’s programming, on
dedicated children’s channels and on programmes with particular appeal to children.
In this case particular appeal to children is established by indexing the audience of a
programme. Ofcom and the ASA follow the “120 index”, where if the proportion of
children in a programme’s audience is more than 20%, it is considered to have
particular appeal to children.
Content rules also apply and these stipulate that in when advertising HFSS products
aimed at children outside the scheduling rules, any advertisements shown around
those times should not use techniques which are used due to their particular appeal to
children. This includes for instance, the use of licensed cartoon characters,
promotional offers or celebrities popular with children.
For non-broadcast media, there is a system of self regulation. There are no scheduling
restrictions but similar restrictions apply to the content of food advertising. In
connection with this, Nutrient Profiles have been defined by the Food Standards
Agency (FSA) for Ofcom. These profiles classify HFSS foods amongst others. This
helps the ASA in regulating the content of food marketing aimed at children. The
industry, regulators and government use the same definition of HFSS and non -HFSS
foods.
1 1. 1. 2

S y st em o f re gu la t ion f ol l o w ed b y c ou nt ry fo r re g ul a t in g fo od

a dv er t is in g to wa rd s c h il d r en
Regarding broadcast media there is a co-regulatory approach. Ofcom, the independent
regulator, and its regulatory partner, the ASA together monitor broadcast media.
There is thus a system of co-regulation between government sanctioned organisations
and the advertising industry.
For non-broadcast media, there is a system of self-regulation, under the supervision
of the ASA.

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119

The broadcast regulations are based on the UK Code of British Advertising, which is
owned by the Broadcast Committee of Advertising Practice (BCAP). The ASA enforces
this code. For non-broadcast media, the Committee of Advertising Practice (CAP)
writes and enforces a Code for advertising; the CAP falls within the ASA.
While there is a statutory ban on the timing of advertisements about HFSS to be
around programmes and channels which appeal to children, this is strictly speaking
forhte age group of 16 years and under. That said, in practice, there are provisions
which concern children under 12 years of age specifically. This is because research by
Ofcom demonstrates that younger children are not able to screen advertisements for
their persuasive intent as older children and adults are.
From a self-regulatory perspective, children under the age of 16 are considered to be
in need of protection from marketing of HFSS foods.
There are Nutrient Profiles which define which foods are HFSS and which are not.
HFSS foods may not be marketed to children on broadcast media around certain times
and the content of any marketing pieces are monitored by Ofcom and the ASA. The
self-regulatory CAP Code acknowledges the need to protect children from marketing
influences, with specific provisions against msileading advertising, the protection of
children, and social responsibility in advertising. There are also statutory restrictions
on scheduling of marketing about HFSS food and drink to children.
The BCAP and the CAP Code both contain provisions on the content of advertisements;
regardless of whether an advertisement is on broadcast or non -broadcast media
certain content rules apply. For instance techniques with part icular appeal to children
should not be used, nor should licencsed cartoon characters or celebrities popular with
children.
The BCAP Code and the Communications Act 2003 refer to broadcast media while the
CAP Code refers to non-broadcast media.
The BCAP Code and the Communications Act 2003 refer to broadcast media while the
CAP Code refers to non-broadcast media. The indirect target groups and ultimate
beneficiaries of this approach are children under the age of 16 who these regulations
seek, amongst other things, to help protect. Children under the age of 12 receive
special consideration under both the BCAP Code and CAP Code, based on research by
Ofcom.
1 1. 1. 3

W h en wa s th e a p p roa ch i mp l em e nt ed

The CAP Code was recently revised to extend the remit of the CAP to in clude digital
media in 2011 42.
The statutory Communications Act was introduced in 2003 43 and the BCAP has been
responsible for the Television Advertising Code since 2004. This was in response to
the Communications Act recommendation that Ofcom devolve some o f its regulatory
power to other organisations, such as the BCAP and the CAP.

42

43

120

CAP, Extending the Digital Remit of the CAP, (2010), available at: http://www.cap.org.uk/Newsreports/~/media/Files/CAP/Misc/CAP_Digital_Remit_Extension.ashx .
Ofcom, Television Advertising of Food and Drink Products to Children, available at:
http://stakeholders.ofcom.org.uk/consultations/foodads_new/statement/ .

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11.2

Context in which the current national approach was developed
and implemented

1 1. 2. 1

P ro b l em r ec og n it i on

After investigating the connection between children’s preferences, consumption and
behaviour of unhealthy food and the role which marketing plays here in 2004, Ofcom
reviewed its restrictions on advertising of HFSS foods to children. A consultation
process was held on the suggested new restrictions in 2006 and in 2007, Ofcom
decided on its new regulatory objectives. These were to:
Revised regulatory objectives for Ofcom 44:
 reduce significantly the exposure of children under 16 to HFSS advertising, as
a means of reducing opportunities to persuade children to demand and
consume HFSS products;
 enhance protection for both older and younger children as well as parents by
appropriate revisions to advertising content standards, so as to reduce
children’s emotional engagement with HFSS advertisements, and reduce the
risk that children and parents may misinterpret product claims, and to reduce
the potential for pester power;
 avoid disproportionate impacts on the revenue of broadcasters;
 avoid intrusive regulation of advertising during adult airtime, given that adults
are able to make informed decisions about advertising messages; and
 ensure that any measures that are put in place are appropriate and sufficiently
timely to enable Government to observe changes to the nature and balance o f
food promotion by early 2007.
For the CAP and the CAP Code, the main objective is that all UK advertisements in the
non-broadcasting area be responsible 45.
In 2003 the then Secretary of State for the Ministry of Culture, Media and Sport,
Tessa Powell, requesed that Ofcom look into further strengthening its restrictions on
certain forms of food advertising aimed at children on television. Healthy eating and
the obesity and overweight in the UK is a relatively prevalent issue in the UK. Growing
research on child obesity from bodies such as the FSA, the Nationa l Audit Office, the
Chief Medical Officer and the Department of Health sparked this call for a different
stance on advertising food and drinks to children.
This led to Ofcom carrying out research into the effects of marketing of food on
children’s food choices, consumption and behaviour. This research demonstrated that
marketing of food had a modest, direct effect on children’s food preferences and that
marketing alone could not change eating habits. The report also considered other
research which also indicated that obesity is a product of several factors and that
marketing alone could not change dietary habits in children (or adults for that
matter).
Ofcom tightened some of its regulatory restrictions but was opposed to an all out ban
on advertising of food to children. There was insufficient evidence concerning the
connection between unhealthy eating and obesity amongst children with food
marketing and as such, no warrant for such a ban. Such a ban formed quite a
contention issue between governmental, health and consumer actors on the one hand,
and advertising and food indsutry stakeholders on the other.

44

45

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Ofcom, Television Advertising of Food and Drink Products to Children, available at:
http://stakeholders.ofcom.org.uk/consultations/foodads_new/statement/.
CAP, Good Regulation, available at: http://www.cap.org.uk/About-CAP/Good-regulation.aspx

121

As such a system of co-regulation continues to exist for broadcast media and a system
of self-regulation has been implemented for non-broadcast media.
There is said to be a direct, modest effect from food marketing on the behaviour and
consumption of HFSS food and drink by children. As such, a system of co -regulation
and self-regulation was thought to be the most dynamic and flexible approaches which
would uphold the spirit behind the regulations as well as their technical specifications
regarding food marketing.
1 1. 2. 2

D o es th i s a p pr oa c h t o re g ul a t in g fo od a d ve rt i se m en ts a i m ed a t

c h i ld r en co nn ect w i th pr i o r it i es f ro m oth e r po l ic y a r ea s?
This approach was informed in part by the UK government White Paper, published by
the Department of Health specifically, in 2004. This White Paper indicated that there
was evidence for stricter regulation of advertising of food aimed at children. This fit in
with the broader health policy concerns within the government.
1 1. 2. 3

W h ic h a cto r s o r o rga n isa t i on s a r e re sp on s ib l e fo r in it ia t ing t he

c ur r en t or ga n i sa t io n of f oo d a dv e rt i s ing a im e d a t c h il d r en?
The Ministry of Culture, Media and Sports initiated the revision of the regulatory
approach in the UK by requesting that its independent regulatory body, Ofcom,
change its regulatory approach. In parallel, the FSA developed nutrient profiles for
defining HFSS versus non-HFSS food to introduce a standardised definition of which
food would be subject to closer advertising restrictions.
Ofcom, as the regulatory body, undertook research to refine its regulatory objectives
and rules. A public consultation was held in 2007 with consumer groups, advertising
stakeholders, food manufactuers, broadcasters and health groups. Ofcom then
collated and exained these responses to come to a set of new revised rules regarding
advertising in broadcast media.
For non-broadcast media, the self-regulatory approach has been in place for some
time (almost 50 years). However the CAP Code was recently revised and the remit of
the CAP extended to include digital media due to the changing media landscape in the
UK. Independent reports in 2008 (the Bryon Review) and 2009 (the Buckingham
Report), pointed to the vulnerability of consumers to marketing in the digital age,
especially children. Added to this, between 2008 and 2009 the ASA had to dismiss
around 3500 cases of complaints about inproper marketing because these complaints
concerned digital media which was outside the CAP and the ASA’s mandate. The
ultimate aim however of the CAP and its objective of making all advertisements in the
UK responsible remains unchanged however.
The main policy debate surrounding the tightening of marketing regulations were
between governmental, health and consumer groups on the one hand, and
advertisers, broadcasters and food manufacturers on the other. The research carried
out by Ofcom as the government’s independent regulator, demonstrated that there
was not sufficient evidence for the effect of food marketing on the eating habits of
children. While the consumer, health and governmental perspectives, (specifically
stakeholders active on health policies) felt the connection was backed up by research,
Ofcom refused to implemented a ban on all food products being marketed to children
as this would damage food producers and the revenues of advertisers and
broadcasters disproportionately, especially given the lack of sufficient evidence
regarding the strength of the role of advertising on children’s eating habits.

122

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Instead a “proportionate and targeted action” in terms of changing advertising rules
was recommended by Ofcom 46.
The extended mandate of the CAP to also cover online media is related to the
recognition that advertising in the UK is increasingly moving online. Food companies
increasingly use the internet to connect with children, evidenced in the fact that in
2009, online advertising overtook TV advertising in the UK 47.
1 1. 2. 4

D e ve l o pm ent o f th e a pp r oa c h: w hi ch co nt ex tua l fa c to rs inf l ue nc ed t he

d e ve l op m ent o f t he c urr e nt a p p roa ch to r e gu la t i ng f oo d a dv e rt is i ng a im e d a t
c h i ld r en?
o

Political:

The government’s public health objectives led to a political environment where there
was a desire for more stringent regulations on food advertising aimed at children. This
governmental position was in turn a reaction to the growing societal concern regarding
overweight and obesity amongst children.
o

Economic:

The economic considerations for the food industry and the advertiser and broadcaster
stakheolders formed a counter point to the calls for stricter regulation of food
marketing aimed at children. Loss of revenue, the impact on privately run TV channels
from lack of advertising revenue, and the constraints on brining new products on to
the markets were all cited as negative consequences of stricter advertising. As such,
co-regulation and self-regulation, both with revised objectives and mandates, were
considered to be the best solution. For Ofcom especially, with the ultaimte
responsbility for the regulation of communications, this appeared to form an
appropriately proportionate and targeted response to the issue of food marketing
aimed at children.
o

Social:

There is a societal concern in the UK about the growing overweight and obesity,
especially amongst children; one in three children in the UK was categorised as
overweight or obese in 2013. Indeed research demonstrate that parents found the
online behaviour of their children particularly worrying as this is more difficult to
monitor and influence 48. There is thus a societal awareness of the role of online
marketing and how children are exposed to this, as well as a broader concern with
healthy eating for children in particular. This has contributed to the government
position calling for increased advertising restrictions, and more recently, in the
extended remit of the CAP in its regulation of non-broadcast media.
o

Technological:

The internet, digital media, and social media form developments which have
contributed to the current approach regarding the regulation of non-broadcast media.
No particular crystallizing events appear to have taken place which contributed to the
current approach to regulating the marketing of food to children.

46

47

48

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WHO, Protecting children from the harmful effects of food and drink marketing, (2014), available at:
http://www.who.int/features/2014/uk-food-drink-marketing/en/ .
The Guardian, Junk food still marketed to children as companies bypass rules, (2013), available at:
http://www.theguardian.com/lifeandstyle/2013/jun/18/junk-food-children-marketing-who-tv .
Sherwin, A., 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-brandbullying-says-childhood-expert-2354917.html

123

1 1. 2. 5

I mp l em en ta t i on of t he a pp r oa ch : h o w wa s th i s d on e ?

For broadcast media, the scheduling restrictions were phased in from April 2007 so
that broadcasters and affected advertisers had time to adjust their strategies
accordingly. By 2009 the scheduling restrictions on HFSS food advertisements aimed
at children were fully implemented. The content restrictions on the other hand were
introduced in February of 2007 and applied to new advertising campaigns; in July
2007 the content restrictions applied to all advertisements for HFSS foods aimed at
children.
For the non-broadcast media, the CAP Code had been in place for some time (nearly
50 years). However the latest form of the CAP Code and the CAP’s mandate (to
include digital media) was implemented in March of 2011.
For the broadcasting media the implementation involved a range of actors. Ofcom
developed the approach of phasing in the new restrictions for scheduling and
advertising. The BCAP revised the BCAP Code and the ASA enforces the regulations.
Additionally, advertisers and broadcasters were required to wor k with the organsiation
Clearcast to categorise foods according to the FSA nutrient profiles to help distinguish
beteen HFSS and non-HFSS foods. Furthermore, the BCAP and ASA also provided
support and guidance to advertisers to become used to the new restr ictions.
The non-broadcasting media regulation was developed by the CAP into the CAP Code.
The CAP falls under the ASA and the ASA enforces this self -regulatory code. As the
CAP is a self-regulatory body and receives complaints which it then addresses, it relies
on industry contributions to finance the organisation. The organisation ASBOF
(Advertising Standards Board of Finance) puts a levy on all non -governmental or
private advertisements.

11.3

Evaluating the outcomes and effectiveness of policies

1 1. 3. 1

H a s th e re b e en a ny r e vi e w /e va lua t ion o f t h e a p p ro a ch s o fa r?

Ofcom conducted an impact assessment for the statutory television ban on advertising
HFSS food and drink to children in 2009. The results of the impact assessment
indicate that the effects of the restrictions are significant, noting a 37% reduction in
HFSS advertisements aimed at children between 2005 and 2009 49.
The ASA monitors the complaints and enforces the compliance for both the BCAP and
the CAP and their respective advertising codes. The activities of the ASA are published
in annual reports. Besides this structural monitoring, the ASA conducted a review of
food and drink advertisements appearing on television in 2009; this revealed an
overall compliance rate of 99.4% 50.

49
50

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WHO, Protecting children from the harmful effects of food and drink marketing, (2014), available at:
http://www.who.int/features/2014/uk-food-drink-marketing/en/ .
Interview OFCOM

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1 1. 3. 2

I s th er e a ny sy st em f or mo n it or i ng th e ef fe ct of t hi s a p pr oa c h t o

r e gu la t ion ? I f so, wh i ch o rga ni sa t i on s o r a ct o r ca r r i es th is o ut?
The ASA monitors and enforces compliance with the BCAP Code, the statutory
regulations on TV advertising, and the CAP code for non-broadcast advertising. It
monitors the compliance with advertising regulations through a number of key
performance indicators, including for instance: the numbers of complaints, the costs
of cases, costs of investigations, the numbers of advertisements withdrawn, the
number of advice and training sessions provided, complaint handling satisfaction,
advertiser satisfaction and financial performance. 51
1 1. 3. 3

H o w is c om p l ia nc e w it h th es e r eg u la t io ns m on it o re d a nd e nf or c ed?

W ha t s or ts o f c on se qu en ce s oc cu r if a n o rga n isa t io n/ en te r p ri s e do es n ot
f o l lo w th e re gu la to ry r ul e s i n p la c e?
Compliance with the statutory TV ban on advertising during and around children’s
programming is considered to be technically good. However criticisms have arisen that
while advertisers comply with the scheduling and content rules, loopholes remain and
the proportion of advertising of HFSS foods has shifted to other time slots instead.
The self-regulatory approach, guided by the CAP Code is considered to have good
levels of compliance as well. The ASA can enforce compliance through techniques such
as naming and shaming of non-compliant advertisers and broadcasters. This works
relatively well given that advertisers’ public images are extremely important to their
everyday business.
The CAP within the ASA receives complaints but also monitors all forms of non broadcast media proactively 52. The ASA publishes the named and shamed advertisers
on a weekly basis and this is put on their website. The vast majority of non -compliant
cases are resolved and in nearly all cases the ASA and advertisers can come to a
voluntary resolution. When complaints cannot be resolved voluntarily by the ASA and
advertiser, the case is sent and judged by the ASA Council. If advertisers consistently
break CAP rules they can also be referred to Ofcom or Trading Standards Authorities
(the market surveillance organs in the UK). The CAP can also ask that certain
advertisements be removed, online this can be achieved by asking search engines to
help with the removal of non-compliant advertisements, members of the industry can
intervene or ad alerts can be implemented which draw the media’s attention to a non compliant advertiser by requesting that the media get in touch with the Copy Advice
team within the CAP before accepting ads from certain advertisers. In this way the
CAP has a variety of tools at its disposal to enforce the self -regulatory code.
1 1. 3. 4

H o w ef fe ct iv e d o y ou f ee l t h is p ra c t ic e i s in c on tr i bu t in g t o a g oo d

r e gu la t ion o f fo od a d ver t is i ng a im ed a t ch i l d ren? P l ea s e ex p la in .
From a self-regulatory perspective, this approach is said to be quite effective because
there tends to be more motivation amongst industry and advertiser organisations to
comply with the established guidelines. Through consultative procedures, s takeholders
from all sides feel at least heard and for the industry especially, avoiding more
stringent rules is a good incentive for compliance.

51

52

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ASA and CAP, Performance and Objectives – Half-year Statement January – June 2014, (2014), available
at:
http://www.asa.org.uk/~/media/Files/ASA/Annual%20reports/Countdown%20to%2050/Half%20year%20St
atement_Jan%20-%20June%202014.ashx .
CAP, About CAP, available at: http://www.cap.org.uk/About-CAP/Compliance/Monitoring.aspx.

125

Additionally, consumers, advertisers and food manufacturers benefit from a fast and
cost-free complaints system which propagates fair competition amongst businesses. In
particular, digital media benefits form more flexible monitoring and responses as is
the case under self-regulation.
Statutory regulations and the co-regulatory approach to monitoring and enforcing
them have the benefit of sharing costs involved amongst organisations. Additionally,
by having advertisers certify their own advertisements according to the HFSS nutrient
profiles, a further step in the compliance process is out sourced from the reg ulatory
bodies. Advertisers and broadcasters are also obliged to assess which of their own
programming can be considered to have particular appeal to children. In this way, by
distributing regulatory activities amongst different actors, Ofcom reduces its c osts and
feels it benefits its costs and balances effectively.
The statutory ban on TV advertising of HFSS foods to children around children’s
programming has been considered effective when examining the number of
advertisements being show on children’s channels and around children’s programmes.
This is evident in Ofcom’s impact assessment. The UK Department of Health also
reported that the annual expenditure on “child themed” food and drink across all
media decreased by 41% between 2003 and 2007 (103 million pounds to 61 million
pounds).
However, despite this compliance with the statutory scheduling regulations, consumer
groups and other stakeholders do not necessarily feel that this reduction necessarily
means that the ban is effective as there are many programmes which are considered
family programmes, but which have a significant proportion of children watching. In
some programmes, such as IVT1’s X-factor and Britain’s Got Talent, though less than
20% of the audiences constitute children, in terms of numbers the amount of children
watching is still high. As such, these programmes are not subject to the HFSS ban and
children are still reached 53.
The report by Ofcom also indicates that there has been an overall increase in
advertisements on TV for HFSS foods during other times of the day. Furthermore, food
manufacturers increasingly use the internet to reach their consumers, including
children. 54Children especially are targeted through mobile phones, computer games,
and social media. From this perspective, the statutory ban on TV advertisements of
HFSS food only addresses a portion of the overall media landscape in the UK, thus
undermining its effectiveness to some degree.
Research by Newcastle University also showed that for instance, the proportion of junk
food advertising taking place had barely changed; if anything this increased somewhat
from 6.1% to 7%. This suggests that the advertisements are not reduced but are
shown at different times instead. Thus companies are officially compliant but the spirit
of the regulation is being neglected.

53

54

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The Guardian, Junk food still marketed to children as companies bypass rules, (2013), available at:
http://www.theguardian.com/lifeandstyle/2013/jun/18/junk-food-children-marketing-who-tv .
The Guardian, Junk food still marketed to children as companies bypass rules, (2013), available at:
http://www.theguardian.com/lifeandstyle/2013/jun/18/junk-food-children-marketing-who-tv .

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From a self-regulatory perspective, the ASA and CAP consider the current approach to
be effective. The extended remit to digital media has been an important step,
evidence by the fact that the proportion of online investigations into complaints is
steadily increasing and was at 40% at the time of the Half -year statement by the ASA
and CAP in 2014. 55
From a self-regulatory perspective, successful aspects are that in allowing the industry
organisations to regulate themselves as an alternative to legislation, there tends to be
more motivation to comply with the established guidelines. Through consultative
procedures, stakeholders from all sides feel at least heard and for the industry
especially, avoiding more stringent rules is a good incentive for compliance.
Additionally, consumers, advertisers and food manufacturers benefit from a fast and
cost-free complaints system which propagates fair competition amongst businesses. In
particular, digital media benefits form more flexible monitoring and responses as is
the case under self-regulation. Additionally, by complementing other regulations, such
as those on misleading advertising (transposed from the EC directive 2005/EC on
Unfair Consumer practices), the important marketing spheres are covered. 56
The main lessons from the self-regulatory approach is that when industry
organisations are involved in establishing their own Codes and/or guidelines for
marketing, especially as an alternative to a new statutory regulations, there tend to
be good levels of compliance. The interests of consumers, health organisations and
governmental bodies as well as those from industry and advertisers are considered
and this appears to propagate a more co-operative spirit amongst industries and
inspires them with a drive to indeed regulate each other. In the case of the UK, the
ASA also has a range of more tangible sanctions at its disposal, such as removing
websites or online advertisements if they are non-compliant. This goes beyond the
naming and shaming principle which though effective, is in this case complemented by
a range of other measures. Working with other branches and organisations can be
helpful in this (such as search engines for instance).
Statutory regulation appears to be less flexible in responding to different forms of
media which advertisers can use. Concepts such as “social responsibility” in
advertising must be defined in concrete terms in order to enforce them according to
the letter of the law. Such more rigid rules can invite companies to actively seek out
loopholes within the law. On the other hand, having certain regulations legally
established does help to propagate a particular societal attitude as well; in this case
having certain laws regarding food advertising towards children helps to cultivate a
social attitude that this marketing practice is not acceptable.
1 1. 3. 5

H a v e th er e b e en a ny o bs ta c l es o r cha l l en ge s en co unt e re d i n

d e ve l op i ng a n d im p l eme nt i ng th i s a pp r oa ch t o r eg u la t in g fo od a d ve r t is i ng
a im e d a t c h i ld r en?
As is the case in other countries, the same type of discussion seems to form in that
food industry enterprises, advertising and broadcasting stakeholders resist regulation,
especially statutory regulation, while consumer, health and governmental bodies
desire more consumer protection and thus often stricter regulations.

55

56

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ASA and CAP, Performance and Objectives – Half-year Statement January – June 2014, (2014), available
at:
http://www.asa.org.uk/~/media/Files/ASA/Annual%20reports/Countdown%20to%2050/Half%20year%20St
atement_Jan%20-%20June%202014.ashx.
CAP, Extending the Digital Remit of the CAP, (2010), available at: http://www.cap.org.uk/Newsreports/~/media/Files/CAP/Misc/CAP_Digital_Remit_Extension.ashx.

127

This discussion and finding a balance between interests has been a main challenge
and helped to lead in 2004, to Ofcom devolving powers to the ASA and entering a co regulatory approach to food marketing aimed at children.
In an effort to implement proportionate and targeted action, Ofcom relied on research
from its own organisation as well as academics on the role of advertising on children’s
food choices. There is however no consensus on the strength of this impact and as
such, with contradictory research, Ofcom felt strong regulation was unwarranted. This
discussion concerning the connection between overweight and obesity amongst
children and food marketing aimed at them forms a challenge in coming to a
regulatory agreement.
A further challenge was developing and implementing the nutrient profiles which help
advertisers, broadcasters and regulators to monitor and enforce compliance of
appropriate content in food marketing aimed at children.

11.4

Transferability

1 1. 4. 1

D i sc us s ion o n t ra nsf e ra b i l i ty o f a pp ro a ch

Self-regulation is considered to be very transferable. Indeed most European countries
adopt some form of self-regulation, the approach is deemed quite universal. There
exists a European association for self-regulatory bodies, the EASA demonstrating that
this approach is relatively wide-spread.
There is an intuitive appeal here in that statutory regulation is often seen as
constraining for businesses, competition and innovativeness. As such the ab ility of the
industry to regulate itself has intuitive appeal. Additionally, in an effort to reach a
compromise to stave off further regulation, industry stakeholders can be more inclined
to make concessions towards consumer, .health and governmental bodies which are
more likely to push for stricter regulation. Due to the business interests at stake,
industry organisations are more inclined to compromise and comply under self regulation.
Regarding the financial, human and organisational resources this approach is also
quite transferable. A central body for monitoring and enforcing compliance is required
and in the case of the UK this is fuelled by advertising levies from broadcasters and
advertisers. The one body acts as a complaints forum as well, forming a gateway
between the industry and consumers. The collaboration with different organisations to
enforce compliance is also an efficient way of working which is cost -saving and gives
the self-regulatory sanctions more strength as well.
The co-regulatory approach is also relatively efficient in that costs and administrative
burden are shared amongst different organisations. The role of the ASA as a help in
regulating both statutory broadcast regulations and non-broadcast regulations also
centralised the regulatory activities to some degree within Ofcom, which can also be
considered an efficient way of organising the regulation of marketing. This
collaborative approach to regulation has a certain intuitive appeal.
Ofcom also feels the approach of using nutrient profiles has intuitive appeal. Overall
the approach is appropriate given the dual objectives of reducing exposure of children
to food focused marketing on the one hand, and avoiding disproportional pressures on
food and marketing industries.

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1 1. 4. 2

P ot en t ia l o bs ta c l es t o tr a n sf er r in g th is a p p r oa c h to ot he r na t i ona l

c on te xt s
The main potential obstacle is that Ofcom uses BARB data to establish audience
compositions for different television programmes. If similar information on audience
demographics is not available, this approach may not be so transferable.
The development and use of nutrient profiles is also a potential stumbling block; these
took some time to develop as the contents of these profiles could have huge
implications for which of a manufacturer’s products are subject to which regulation
and how which products can be marketed. Developing these profiles can thus be quite
a long, complicated and loaded process.

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