The Regulation of Food Advertising: a Striptease in Instalments.
by Francisco Ojuelos and Julio Basulto1 . Translation by Ricardo Mena.
(Original text in Spanish: the links lead usually to pages in Spanish)
A misspelling is still such no matter how many people keep incurring in it. In the same way, an illegality remains one no matter how many people incur in it without even receiving a miserable fine. It remains an illegality just the same. We say this to illustrate how the consented practice in time can generate an inexact perception on the legality of some behaviours. And here we are not talking about private actors only; we are also talking about the very same Administration, that has been materialising behaviours for years and years, only to see how these behaviours have been declared illegal afterwards by the Courts of Justice, both national and international. (There are many examples: does it sound familiar to you the abusive character of mortgage clauses, for example, consented for years both by public and private actors?)
Well then, in the question of food advertising (or, in general, on the presentation to the public of the same) we perceive that critical pressure has increased and that it demands that action be taken against some behaviours which, in spite of being tolerated up till now, present a very doubtful compatibility with the regulations currently in force.
The issue, indeed, is a highly topical and polemical one: authorised voices have dealt with the question very recently. So, for example, in the blog Scientia, José Manuel López Nicolás (PhD and lecturer of the Biochemistry and Molecular Biology Department of the University of Murcia) carried out an analysis in June, 2015, concerning the advertising done by celebrities and their possible responsibility as colaborators in the possibly intentional inexactitudes (when not even possible deception). The study is available here: http://scientiablog.com/2015/06/05/son-responsables-los-famosos-de-la-publicidad-que-hacen/. In his own blog, in fact, it was denounced time ago (December, 2012) how the normʼs lack of general suitability, coupled with the tradeʼs cunning, allowed some practices, considered inadequate, to move with absolute impunity (http://scientiablog.com/2012/12/21/el-reglamento-europeo-que-ha-acabado-con-la-investigacion-el-desarrollo-y-la-innovacion-en-la-industria-alimentaria/).
In the same way, the equally noted blog “El Comidista” of the journal El País echoed these polemical issues. The question was that if in order to sell, anything goes: Football players who advertise sugary foods aimed at children, women fond of bullfighting who advertise vegetable products and singers who care for your gastrointestinal tract. In order to sell, anything goes?: http://elcomidista.elpais.com/elcomidista/2015/07/08/articulo/1436374958_145117.html. Later, in any case, we will see more examples.
As things are, we have thought it convenient to give our own point of view to the debate raised, taking as basis both the currently regulation in force and the available scientific evidence with regard to health and the protection of consumer rights.
We enumerate below four examples of behaviours on which it is sound to ask oneself whether they are compatible with the promotion of public health or not; whether they respect the scientific knowledge accepted on human and dietary nutrition; whether they are ethical and, no less important, legal:
● Statements or suggestions of healthy properties included in superfluous foods, that is, in products that are not recommended for a regular consumption by scientific consensus.
● Inclusion of labels or guarantees by health companies in the aforementioned products, in order to add a “bonus” of health over others that are equally or more idoneous for these goals.
● Concealment of its evident disadvantage over other healthy, not processed foods (besides being cheaper too), so to simulate the benefits its consumption would give.
● Inclusion of decoys based on accesible properties with a diet in which are not included superfluous foods, or not recommended nutritional profiles2.
We will try to show that such behaviours collide with the advices included in the nutritional consensuses or with the guidelines included in authorised dietary guides, so that they should be considered incompatible with the promotion of public health and, as a consequence, unethical. The first two behaviours, furthermore, are legally forbidden by the specific nutritional regulations currently in force (although incomplete: we will justify later this apparent absurdity). With regard to the other two behaviours, as we will see, they are forbidden by the consumer regulation and the general one on advertising and competence.
Not to turn this text into a cumbersome reading, we have decided to divide this document into four parts, devoting up to six subsections to the second part concerning the analysis of the norms. We will follow this index:
II. Context. The applicable norms:
- General Advertising and consumers.
- Unfair Practices.
- “Specific” unfair practices on food advertising.
- The Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods.
- The Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers.
- The responsibility of advertisers and their agents.
III. The advertising aimed at children.
As our end is to explain with transparency the regulation of food advertising and how it deals with daily reality, you will see after a calm and forced striptease how ugly is the show we face today due to the behaviour of some actors without scruples. Meanwhile, we invite you to ask yourself how scientific, ethical and legal are the advertisements that surround you in your daily life. And so, after this “appetizer,” we say goodbye with a “see you soon.”
1 We start with the present one the publication of a series of instalments that will conform a study on the laws and norms that regulate food advertising, taking into consideration the scientific evidence available on health and the protection of consumer rights, carried out jointly with Julio Basulto (juliobasulto.com and @JulioBasulto_DN in Twitter). Julio is a dietician-nutricionist, teacher in diverse institutions and member of different groups, boards, societies and committees of experts. He is author of the books Mamá come sano, Se me hace bola and co-author of Comer y correr, Secretos de la gente sana and No más dieta. At present Julio, a national authority on nutrition and dietetics, collaborates with the programs “Healthy People” of Radio Nacional de España (RNE), and “Being a Consumer” of the Cadena Ser. The experience of working with Julio is always priceless and great. Our most sincere gratitude for it.
2 Royo-Bordonada MÁ. Using nutrient profiling to prevent misleading food marketing. Public Health Nutr. 2015 Oct; 18 (15):2891.