With special attention to the Spanish case, this blog is about European food law and public policies that affect food and nutrition regulations. By Francisco José Ojuelos Gómez, Julio Basulto Marset and Ricardo Mena Cuevas.
martes, 26 de enero de 2016
The Regulation of Food Advertising: a Striptease in Instalments, II: Context. The applicable norms.
Regulation of Food Advertising: a Striptease in Instalments.
Francisco Ojuelos and Julio Basulto. Translation by Ricardo Mena.
the former instalment we have explained how, fortunately, a debate is
beginning to be generated around the suitability of some kind of
advertising practices and presentation of foods. Today we start by
asking ourselves the following: Does the Administration respond to
the bad practices carried out by some sectors of the food industry in
many occasions? You can guess our answer by now: we consider that it
does so in an insufficient way. For the fact is that in food and
nutritional matters, different studies have shown the existence of
massive irregularities before which there is no opportune reaction,
as far as we are aware of, on behalf of the Administration (1). We
are discovering nothing new here.
advertising we will be dealing with here tries to convey a plain
message concerning the supposed salutary and beneficient condition of
its food products, a plain message sufficiently persuasive to
convince, not only the average, non-expert consumer, but also a
relatively well-informed consumer with average competence and
judgement (2) (3). The persuasiveness this advertising creates on
those consumers who are in need of greater protection, on those
consumers who are the most uninformed or who are the weakest, among
whom are the children and the elderly, is not a parameter which the
Courts of Justice nor the Administrations consider key when
strengthening the levels of exigency (4), at least in the European
Union. What a shame.
the question is not clear for a non expert, let us say it in plain
words. It is not so for an expert neither. As the situation is right
now, it would be an achievement in itself for a non-professional
person in Law to know which norms regulate a particular question.
When to the national norms we add the European ones, the question
attains epic hues (5). Fortunately, after hours of hard
navigation through the Web, during which we have had to exert
ourselves, like Ulysses, not to listen to the Sirensʼ
songs who want to confound those who search for truth, we have
achieved to collect the applicable norms on the matter, considered
Advertising and Consumers.
2. Unfair Practices.
3. “Specific” unfair practices on food advertising.
Regulation (EC) No 1924/2006 of the European Parliament and of the
Council of 20 December 2006 on nutrition and health claims made on
Regulation (EU) No 1169/2011 of the European Parliament and of the
Council of 25 October 2011 on the provision of food information to
responsibility of advertisers and their agents.
Advertising and Consumers.
is not always addressed to consumers, for in many occasions what it
tries is to convince particular groups, like healthcare
professionals, for instance. This said, we should be aware of this:
that if the advertising in question is addressed to consumers,
protected as such by their condition, that advertising must comply
with The General Consumer
and User Protection Act
(from now on, LGDCU) (6).
we observe that Act with a magnifying glass, what most attracts our
attention is article 8.d), which states as a basic right of
information regarding different goods or services, and education and
the transmission of knowledge as to their adequate use, consumption
does the former peroration mean? In order to try to elucidate it,
there is nothing better than to look to the dictionary of the Royal
Spanish Academy, which defines the word “correct”in
“said about things, is what
is free from error or defect and is in agreement with the rules (8).”
The information that we receive as consumers must be, therefore,
exempt from errors and defects and must comply with the prevailing
the sentence states something else: that as consumers we have the
right to receive education and divulgation so that we know how to
use, consume or enjoy adequately what we are being advertised. If we
have the right to receive, someone must hold the obligation to give.
Who must offer this education and divulgation? Evidently, the public
authorities. But when revising the scope of application of the Act
(LGDCU, article 2), we discover that “This
law shall be applicable to the relations between consumers or users
Therefore, in spite of the fact that it is true and most true that
article 17 states, with regard to education and formation, particular
obligations on the public authorities (by the way, unfulfilled in a
most patent way), that does not preclude anyone from understanding
that private actors should contribute with something more than an
of the same Act declares:
Without prejudice to the provisions of the following paragraphs, for
the protection of the legitimate economic and social interests of
consumers and users, the commercial practices of entrepreneurs
directed at these groups are subject to the provisions of this law,
the Law on Unfair Competition and the Law on the Regulation of the
these purposes, business-to-consumer and user commercial practices
are considered to be all commercial acts, omissions, conduct,
manifestations or communications, including advertising and
marketing, directly relating to the promotion, sale or supply of
goods or services to consumers or users, irrespective of whether
these take place before, during or after a commercial transaction.”
specific norms on unfair practices (states also the same LGDCU) have
the general ones,
what in juridical terms means that, notwithstanding the fact that the
general ones are effective when the specific ones say nothing about a
particular case, the specific ones will be preferentially applied in
case both kind of norms regulate the same behaviour.
fine, today we have seen that, on the one hand, when food advertising
is addressed to consumers, their condition makes applicable the
LGDCU. And secondly, that when we receive information from food
advertising, it is our basic right to demand that it be correct.
Let us keep pulling the thread, something that we have just started
doing. But that will be in the next instalment.
P, Wansink B. Does
food marketing need to make us fat? A review and solutions.
Nutr Rev. 2012 Oct;70(10):571-93.
de Derecho alimentario(2011,
Miguel Ángel Recuerda Girela -Director-, Editorial Aranzadi, ISBN
978-84-9903-903-9) denounces the situation of the advertising
industry and in particular the one addressed to children (page 699):
PAOS Code lacks efficacy for, as it is created “via pact its
normativity lacks the juridical efficacy norms have; and in fact time
has proved that to be true for the Code
has been infringed in some cases without relevant consequences for
the defaulting party”.
In a footnote is referenced as an example the Resolution of the
Independent Advertising Jury
in the case AUC – Burguer King Spain. Furthermore, it is criticized
the legislative option consisting in including dispositions on food
advertising addressed to children in diverse norms, instead of
drafting a specific norm.
In particular, it is more complicated in the case of Regulations,
norms that do not require to be transposed, that is, and in short,
“re-dictated” as national norms. If we are allowed so to clarify
it, the “re-dictation” is produced as a norm of national scope,
only in the case of Directives: the State has to dictate a new Act, a
national Act, that with a minumum margin of discretion incorporate to
domestic law the particular regulation, that is, transpose the
Directive. In the case of Regulations, it is not required to
transpose the norm, that coexists as an European norm and one must,
first of all, locate it in its prevailing version and, later,
interpret it as a whole.
(6)Royal Legislative Decree 1/2007,OF 16 November,
Approching the Consolidated Text of The General Consumer and User
Protection Act and Other Complementary Laws.
by Linguaserve, offered by the Spanish Ministry
of Justice, available online on its website.