martes, 26 de enero de 2016

The Regulation of Food Advertising: a Striptease in Instalments, II: Context. The applicable norms.

The Regulation of Food Advertising:
a Striptease in Instalments

by Francisco Ojuelos and Julio Basulto. Translation by Ricardo Mena. 

Original Text in Spanish. The links lead usually to pages in Spanish. 

II. Context. The applicable norms.

        II. Context. The applicable norms

      In 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.

The 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.

As 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 globally. Take note:

1. General Advertising and Consumers.
2. Unfair Practices.
3. “Specific” unfair practices on food advertising.
4. 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.
5. 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.
6. The responsibility of advertisers and their agents.

       1) General Advertising and Consumers.

     Advertising 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).

If we observe that Act with a magnifying glass, what most attracts our attention is article 8.d), which states as a basic right of consumers, “Correct information regarding different goods or services, and education and the transmission of knowledge as to their adequate use, consumption or enjoyment.” (7)

What 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 this way: “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 legislation.

But 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 and entrepreneurs. 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 exact information.

Article 19.2 of the same Act declares:

2. 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 Retail Trade.

For 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.”

The specific norms on unfair practices (states also the same LGDCU) have prevalence over 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.

In 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.


      (1) La Publicidad y el Etiquetado en los Complementos Alimenticios. ¿Cumplen con la legislación? (2011, Paula Sáiz de Bustamante Perez, CEACCU, available at This study of 120 pages shows that up to 81% of the advertising under study contains supplements that present irregularities. Within the description of “food suppliments” are hidden, as it has been denounced by a study of the University of Alcalá de Henares, a numerous group of “envigorating, slimming, diuretic, tranquilizer, to boost natural defences” products

      (2) Basulto J. ¿Cómo nos engorda el marketing de alimentos insanos? 7 de octubre de 2015. Available online at:

      (3) Chandon P, Wansink B. Does food marketing need to make us fat? A review and solutions. Nutr Rev. 2012 Oct;70(10):571-93.

      (4) The Tratado 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): the 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 Autocontrolʼs 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.

      (5) 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.

      (7) Translation by Linguaserve, offered by the Spanish Ministry of Justice, available online on its website.

      (8) Real Academia Española de la Lengua.

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