The
regulation of Food Advertising:
a Striptease in Instalments, III
a Striptease in Instalments, III
by
Francisco Ojuelos and Julio Basulto. Translation by Ricardo Mena.
III:
Context. The applicable norms, points 2 and 3. Original
text in Spanish. The links lead usually to pages in Spanish.
In
the two previous instalments (1st
and
2nd)
we have questioned the ethics and legality of some advertising
practices concerning the promotion of foods, and we have come to the
conclusion that as consumers (who are the food advertisingʼs main
target) we have a “protecting shield” in the LGDCU, known as the
General Consumer and User Protection Act. This meant (and still
means, let no one scare) that it is our basic right the information
we receive be correct. But this, which is fine, is not enough. There
is more, much more.
As
we said in the “Introduction” section, we have thought it
necessary to divide the section devoted to the norms that regulate
food advertising into six points:
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.
Once
all this has been analysed, we will approach two more points:
Advertising
addressed to children,
and Conclusions.
As in the previous “chapter” we dived into the General
Advertising and consumers section,
today we will swim in the chilly waters of those two sections that
follow: Unfair
practices
and “Specific”
unfair practices on food advertising.
Breath deep and do some stretching, for it will help you.
2)
Unfair practices.
Did
you do a preheating? Read then the following lines (our emphasis):
It
is considered unfair by misleading any behaviour that contain false
information or
information that,
although
being accurate, by its content or presentation lead or may lead the
recipients into error,
being susceptible to alter the receipientʼs economic behaviour,
provided that it fall upon some of the following aspects:
So
far so good, isnʼt it? Before continuing, know that these lines
belong to article 5 of the Unfair Competition Act (1), which is
applicable to advertising in general. Let us keep giving strokes,
that is, reading, to which “aspects” the act refers to (our
emphasis):
b)
The main characteristics of the goods or service, such as its
disponibility, its benefits, its risks, its execution, its
composition, its accesories, the process and date of manufacturing or
supply, its delivery, its proper
character,
its use, its quantity, its specifications, its geographical and
commercial origin or the results that can be expected from its use,
or the results and essential characteristics from the testing or
controls taken on the goods or service.
There
is a word in the former philippic that should not be ignored by
anyone, and is the following: “proper.” We have gone to the Real
Academia, which considers “proper” as “accurate and consistent
with the conditions or the needs of someone or something,” from the
past participle of “to appropriate,” which is “to apply to each
thing what is suitable and more convenient.” Therefore, it follows
that the Unfair Competition Act states that when something is
advertised, it cannot be understood that that “something” (a
shampoo, a screwdriver, a cough drop or a fried tomato, to give four
examples) is convenient to attain the suggested end, if it is not
true. The basis for the success of every unfair strategy, apart from
the main one, which is the Administrationsʼs unjustifiable and crass
tolerance and the Courts of Justiceʼs lack of sensibility, is in the
qualifying: it is enough to add a healthy nutrient (a vitamin) to an
unhealthy product and remark the existence of that nutrient in the
composition to consummate the alleged deceipt. It is enough to put
the seal of a company from the health sector to an unhealthy food.
For
example, no advertiser should be able to lead us into thinking that a
chocolate bar helps child growth, suggesting that the bar gives them
“energy,” for three reasons:
1)
children can (and should) grow by eating healthy foods,
2)
there are no energy deficiences in the Spanish population that
compromise childrenʼs growth and
3)
the consummer is being told to believe that the advertised bar
possesses a healthy quality that in no way answers the reality of the
said product, with an excess of sugar, salt and low-nutritional
quality fats, even though it may have one or some characteristic that
(in abstract and not considering the fact that the final product may
have one or some undesirable characteristic), could be considered
healthy.
As
you would have guessed, it is not “proper” to endorse a healthy
statement to an unhealthy food, although one of its components may
cause some benefits. And the reason is that, if we follow the former
example, a consumer concerned with her childrenʼs growth may,
mistakenly, alter her buying decision and choose the chocolate bar
instead of acquiring healthy foods to feed her children. If we are
allowed the simile, a monkey wrench is good for hammering, but the
proper thing is to do it with a hammer. In the food sector this kind
of equivocations happen with too much frequency.
Let
us see an example with vitamin B6 and a very well known product
called Actimel.
The European Food Safety Authority (EFSA) allows that every product
that have some dose of such vitamin incoporate the statement “it
contributes to the normal functioning of the immune system.”
Actimel
has such dose, therefore it shamelessly uses such statement. But be
careful, and as it was expanded in the text “Is there any food that
increase our defences?” (2),
the EFSA does not allow a company to state that such vitamin
“improves” the immune system (no vitamin, complement or food can
be sold today with the endorsement that it “improves” the immune
system). The ENIDE pool, furthermore, showed that there is no
shortage of this vitamin in the population. Very well then, with the
legislation in our hands we do not consider “proper” that they
try to sell us a product with vitamin B6 added, endorsing it the said
statement, instead of, for example, selling us a banana. It dealt
with this issue the biologist and dietician-nutricionist Juan Revenga
in his blog “El nutricionista de la general”, in a text with the
title “The Food Industry: does it lie to us or is it deformed?”
(3) You can also review the reflections that appear in the text
ʻHealth risks of “functional foods.”ʼ (4)
As
we are sure that you are not yet tired of swimming (or so we hope),
let us see, then, the specific food
and
nutritional
regulation
(5).
That is, we dive into the next point.
3)
“Specific” unfair practices on food advertising
As
you will be seeing all along these lines, we love to give strokes
from one side of the Unfair Competition Act to the other. However, we
need to move to other waters and dive into the Act 17/2011 on Food
Safety and Nutrition to see the “specific” regulation. To start
with, in points 1 and 2 of article 44 of this Act we find some
somewhat cumbersome texts, that may sound to you like Greek, but we
assure you that they are crucial. For the fact is that this Act
states which Acts should rule the “commercial communication on
food,” something as important as knowing, if in doubt, who must
command an army:
1.
Without prejudice to the specific dispositions collected in this Act,
commercial communication on food will be ruled by Act 3/1991, of 10
January, on Unfair Competition; by Act 34/1988, of 11 November,
General on Advertising; by the Royal Legislative Decree 1/2007, of 16
November, through which is approved the refunded text on the General
Consumer and User Protection Act and other complementary Acts; by Act
7/2010, of 31 March, General Audiovisual Communication, and by the
special norms that rule the activity in this sphere and be applicable
to it.
2.
Likewise, advertising messages on foods, released by any means or
commercial medium, should adjust to the applicable regulation, and
specifically to the Royal Decree 1907/1996, of 2 August, on
Advertising and Comercial Promotion of Products, Activities or
Services with an Alleged Healthy Goal (6).
Believe
it or not, once this surf is overcome, which it was necessary to
face, the waters stay calm. In addition to the former, the Act
stipulates three concrete prohibitions as clear as a cloudless day.
3.
Without prejudice to what is stated in 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, in the
direct or indirect advertising or promotion of foods will be
prohibited:
a)
The inclusion of testimonies by sanitary professionals or scientists,
real or fictitious, or by real or supposed patients, as a means to
lead into consumption, as well as the suggestion by a healthy or
scientific endorsement. [We
well deal with the endorsements issue in good time.]
b)
The promotion of food consumption with the end of replacing the
alimentary or nutrition common regime, specially in cases of
maternity, lactation, infancy or third age.
c)
The reference to its use in health centers or to its distribution
through pharmacies.
We
extract, in summary, the two basic conclusions we can arrive at after
all the above, with regard to the “specific” unfair practices on
the issue of food advertising:
First
conclusion,
with
regard to the content: advertising,
even when accurate, cannot lead us into error on the proper character
of a food,
that is,
on the convenient character for its use when what is being done is
suggesting a concrete property.
And this is so because food advertising is ruled, besides the Royal
Decree 1907/1996, of 2 August, on Advertising and Commercial
Promotion of Products, Activities or Services with an Alleged Healthy
Goal, by the general norms (that we have enunciated in points 1 and 2
of section II, with the title “Context. The applicable norms”), a
circumstance that allows us to conclude that article 5 of the Unfair
Competition Act is applicable to it.
Second
conclusion,
with regard to the applicable norms: someone may try to sidestep the
said Unfair Competition Act through a feint, as a basketball player
would say. And very probably that person will do it with the excuse
that the Spanish Food Safety Act does not state specifically that
food advertising will be considered misleading if it can lead the
recipient into error. In that case, and following the basketball
metaphor, the referee should “call a foul,” because the Food
Safety Act declares that the Unfair Competition Act is applicable to
the food sector (7). And all the above means, as we have noted, that
when we are advertised a food, by no means can they declare or
insinuate to us that such food is proper for attaining a particular
end (like improving our health), because of the fact that it has an
endorsement that is conceded only by “extra-nutritional” reasons
or because it has in its composition an ingredient that, in abstract,
could be beneficient for our health, if the food as a whole is not
advisable.
In
short, besides having the right that we have of receiving correct and
accurate information, the obligation goes further. The information we
receive through advertising and presentation of food has to be so
crystalline that, although
being accurate, it cannot even lead us (they talk of mere
probability) into error for
its content or presentation about its benefits, characteristics, its
proper character or the results that can be expected from its use.
Under the light of all the above, our final conclusion of today is
also crystalline like purified water: an enormous quantity of food
advertising is, possibly and allegedly, ilegal. And it is ilegal no
matter how many times it is repeated or considered normal, as a
misspelling it is such no matter how many times it is repeated, as we
said at the beginning of our series.
But
we have more nutrients with which to feed you, for we have not served
you our main dish yet, a main dish that combine exceptionally well
with what has been served so far. So that you get your digestion
ready, we remind you that in the next instalment we will offer you
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. When opened, like a melon just ripe, it will show us a
pleasant surprise.
Notes:
(1)
Act 3/1991, of 10 January, on Unfair Competition is applicable to
advertising practices, according to what is stated both by the Act
34/1988, of 11 November, General on Advertising, in its article 3.d,
and by the very same Act 3/1991, on Unfair Competition, that
regulates in its article 3 the “illicit advertising.”
(2)
Basulto J. ¿Existen alimentos para aumentar las defensas? Consumer.
24 September, 2014,
at:http://www.consumer.es/web/es/alimentacion/aprender_a_comer_bien/alimentos_a_debate/2014/09.
(3)
Revenga J. Industria alimentaria: ¿nos engaña o está desinformada?
El nutricionista de la general. 28 June, 2012, at:
http://juanrevenga.com/2012/06/industria-alimentaria-nos-engana-o-esta-desinformada/.
(4)
Basulto J. Riesgos para la salud de los “alimentos funcionales.”
Psicología y Nutrición. 2 October, 2014, at:
http://psicologiaynutricion.es/?p=873.
(5)
In El
Derecho Agroalimentario
(2003, Brosa, Abogados y Economistas, J.M. Bosch Editor, ISBN
84-7698-693-9), pages 137 to 148, is studied the applicability of the
General Advertising Act that, is said, “…cedes before the
existence of more specific regulations with regard to functional
foods and loses efficacy before the intervention powers of the public
Administration on health matters and protection of consummers,
although it displays all its applicability in cases between
particular actors.” In cases of functional foods, the key
regulation that is analysed later is the RD 1907/1996, of 2 August.
(6)
The applicability in this sphere of the the Royal Decree 1907/1996,
of 2 August, on Advertising and Comercial Promotion of Products,
Activities or Services with an Alleged Healthy Goal presents a series
of juridical questions of some depth, to our knowledge, that
nevertheless exceed the scope of this work. The Royal Decree has its
specific scope: the relevance that it may have on food advertising
derives from the prevision of article 44.2 of the Act 17/2011, of 5
July, on Food Safety and Nutrition. Therefore: What does it mean that
advertising messages on food must adjust specifically to the Royal
Decree 1907/1996, of 2 August? It seems that (art. 1 RD 1907/1996)
every food advertising that is released or is presented as useful for
the diagnosis, prevention or treatment of diseases or physiological
developments, slimming, modification of physical or psychological
state, restauration, correction or modification of organic functions
or other alleged healthy ends, must adjust to accuracy criteria with
regard to health. The regulation, therefore, in some measure, may
have a bearing on the same scope as the European norm: 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,
concerning nutritional statements and healthy properties in foods.
(7)
For the fact is that, without taking away any efficacy from what the
well-known Regulation 1924/2006 stipulates, which we will analyse in
the next instalment, the Spanish Food Safety and Nutrition Act has
its own specific object, together with all the other applicable norms
it itself states as applicable, like the Unfair Competition Act. It
seems, so far, that there are no specific previsions on unfair
competition that establish exceptions to what it is stipulated in
general in the Unfair Competition Act, that is: in the Act 17/2011,
on Food Safety and Nutrition, there is no particular unfair
competition regulation, but just the opposite, as we have just noted.
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