The Regulation of Food Advertising: a Striptease in Instalments (V) The Regulation (EU) 1169/2011 and the responsibility of advertisers
by Francisco Ojuelos and Julio Basulto. Translation by Ricardo Mena.
Original text in Spanish (The links lead usually to pages in Spanish)
This is the penultimate instalment of this series of six (here the first, the second, the third, and the fourth) devoted to the study of the norms (statutes, regulations, etc.) that regulate advertising and comercial presentation of foods in Spain. A great part of what we have analysed applies in the rest of the European Union because the most significant norms are supranational or are based on them.
Brief review
To come here, the way has made us pass, let us remember, through all these steps:
I. Introduction.
II. Context. The applicable norms:
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.
We already know that all these norms guarantee the rights to receive a correct and truthful information (that it be true) and that, furthermore, it does not confound us, for example, by making us believe that a food is healthy when overall it is not so.
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.
We already know that all these norms guarantee the rights to receive a correct and truthful information (that it be true) and that, furthermore, it does not confound us, for example, by making us believe that a food is healthy when overall it is not so.
We have also discovered that the legislation establishes that for a food to contain nutritional statements (for instance, “source of fiber”) or staments of healthy properties (for example, “it reduces cholesterol”) the European Food Safety Authority (EFSA) must be able to check and allow that there is solid scientific evidence about it. If you do not trust us, you can read the review of the Spanish Agency for Consumer Affairs, Food Safety and Nutrition (AECOSAN) in this link: http://aesan.msssi.gob.es/AESAN/web/cadena_alimentaria/detalle/tipos_declaraciones.shtml.
The following points remain, then:
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.
III. The advertising aimed at children.
IV. Conclusions.
Today we are going to get into points 5 and 6, and we will leave for the following (and final) instalment, the food advertising addressed at children and the conclusions. But before that, a brief but needed parenthesis.
Parenthesis: authorised statements
We allow ourselves to make a pause, before moving on, in order to show where to find those statements allowed by the EFSA to this date, in case it is of any interest to some reader.
These readers have nutritional statements authorised in the Annex of the Regulation CE No. 1924/2006 and in the Regulation CE No. 116/2010, but they can consult them here: http://aesan.msssi.gob.es/AESAN/docs/docs/cadena_alimentaria/gestion_de_aspectos_nutricionales/Tabla_declaraciones_NUTRICIONALES_autorizadas.pdf.
Concerning the statements about healthy properties (“any statement that affirm, suggest or imply that there is a relation between any food category, a food, or one of its constituents, and health”, according to the AECOSAN), the 222 ones authorised up to 2012 (out of the 2.758 requested, that is, the 8%) appear in the Regulation (UE) No. 432/2012 (1). If the statements are based on recently obtained scientific evidence and/or include a solicitude of data protection subject to industrial property rights, a different procedure is followed different from the authorisation. You can consult the opinions of the EFSA on this question (in the great majority of cases, negative) here: http://aesan.msssi.gob.es/AESAN/web/cadena_alimentaria/detalle/opiniones_efsa_art13.5.shtml
Finally, if the statements deal with the reduction of the risk factor of a sickness or to the development and health of the children a different procedure from the authorisation one also follows. In this case, the opinions of the EFSA are available here: http://aesan.msssi.gob.es/AESAN/web/cadena_alimentaria/detalle/opiniones_efsa_art14a.shtml.
All of them, in any case, can be consulted in this invaluable tool of the European Commission: http://ec.europa.eu/nuhclaims/.
Some previous words on the Regulation 1169/2011 (EU)
As we have justified before, to be able to use the above statements (nutritional or about healthy properties), the food as a whole must have a suitable nutritional profile (that is, that it do not subtract on the one hand what supposedly it would offer on the other). On this point, we have been able to check how the European Commission fails to observe (it is six years late by now) its legal duty in establishing those nutritional profiles. Because of this, although the norm do not exist and be in force, the food industry identifies and uses the supposed void to create advertising in many cases opposed to the Law. This is so because, at least in Spain, there are other Acts that prevent us to believe that a food is suitable in order to achieve an end (to improve health) when that is not true.
Let us see what happens in the EU with the analysis of the last supranational norm of importance to which we have made a reference at the beginning of this part.
This new instalment, with which we will finish part II (“Context. The applicable norms”), begins, therefore, with a reference to one of those European norms, the Regulation 1169/2011 (EU) of 2011. Its object is the food information offered to the consumer.
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.
In the same way the the ocean does not end in the line of the horizon, the European regulation with regard to food advertising is not spent in the Regulation 1924/2006: the Regulation 1169/2011 devotes specifically to the question some of its articles.
In point 20 of the antecedents of the norm is specified the consideration that the [f]ood information law should prohibit the use of information that would mislead the consumer in particular as to the characteristics of the food, food effects or properties, or attribute medicinal properties to foods. To be effective, that prohibition should also apply to the advertising and presentation of foods. (2)
Therefore, the Regulation of 2011, does not come to regulate the same thing than the Regulation 1924/2006, but to establish a new frame. All information offered to the consumer, including advertising, must be legal, that is, accurate, exact, in accordance with the truth (from the DRAE), according to article 7 of this Regulation (3). The reference to the qualities that are in this article of the European norm are akin to the proper character of article 5 of the Spanish Unfair Competition Act.
The question is, in short, to avoid the inducement to error, the biased or fallacious information and to facilitate that the consumer take a buying decision in accordance with his or her aims: if the consumer wants to look for his or her children, he or she should not choose a biscuit because it bears the seal of some medical association, for instance (4), for biscuits are food with a nutritional profile that by no means we can qualify as “healthy.”
The example that we mentioned in the former “instalment” comes to mind now. The question is not that one has to judge whether eating biscuits sporadically within the frame of a diet (a model on the rest) is compatible with a “healthy nutrition”: that point, which is arguable, is framed in another debate. The question is whether, in the act of choosing and buying a product, the veiled advertising on the healthy “plus” that is added by a seal, the consumer has received an accurate, suitable, proper information or that, even being accurate, by its content or presentation induces or may induce some addressees to error, being susceptible of altering their economic behaviour.
If the formal use of a nutritional statement, of healthy properties, of an “endorsement” or, simply, of the indication of the existence of a collaboration can, in some measure, have the appearance of legality, the goal of it all is, in our opinion, to determine or influence on a buying decision that tries to choose a healthy option. It is, again, in our opinion, an attempt at covertly attributing a property, that one of being the most healthy one than any other common biscuit, on the one hand and, on the other, to make it when the type of food –a biscuit, pastries in the end (5)– is included in those types that have a nutritional profile whose intake is advisable to avoid or to reduce.
The norm is imperfect (6) and a lot remains to be done, of course, but the confessed tendency is the one we have so far, although it be persecuted with mildness due to the exercised pressure taken by contrary economic interests.
Opinion of doctor Margaret Chan, director of the WHO
As we have just mentioned that there are interests that press against a regulation that benefits the consummerʼs health, we want to share the opinion that on this particular holds the very same doctor Margaret Chan, general director general of the World Health Organization. We transcribe the opening address she gave on June 10, 2013, during the 8th World Conference on Health Promotion (Helsinki, Finland):
“Today, getting people to lead healthy lifestyles and adopt healthy behaviours faces opposition from forces that are not so friendly … Research has documented these tactics well. They include front groups, lobbies, promises of self-regulation, lawsuits, and industry-funded research that confuses the evidence and keeps the public in doubt.
Tactics also include gifts, grants, and contributions to worthy causes that cast these industries as respectable corporate citizens in the eyes of politicians and the public. They include arguments that place the responsibility for harm to health on individuals, and portray government actions as interference in personal liberties and free choice.
This is formidable opposition. Market power readily translates into political power. Few governments prioritize health over big business. As we learned from experience with the tobacco industry, a powerful corporation can sell the public just about anything.
Let me remind you. Not one single country has managed to turn around its obesity epidemic in all age groups. This is not a failure of individual will-power.
This is a failure of political will to take on big business.
I am deeply concerned by two recent trends.
The first relates to trade agreements. Governments introducing measures to protect the health of their citizens are being taken to court, and challenged in litigation. This is dangerous.
The second is efforts by industry to shape the public health policies and strategies that affect their products. When industry is involved in policy-making, rest assured that the most effective control measures will be downplayed or left out entirely. This, too, is well documented, and dangerous.
In the view of WHO, the formulation of health policies must be protected from distortion by commercial or vested interests.” (7)
6) The responsability of advertisers and their agents.
With this sixth and last point of heading II, which we have called “Context. The applicable norms”, we finish the review we wanted to do on the norms related with food advertising, with the exception of the one addressed to children, which we will deal with, together with our conclusions, in the following instalment, which will be (we do not know if fortunately or unfortunately), the last.
Let us try solving then the question that raises the statement of this point: what responsibility falls, or should fall, to the advertisers and their agents? The answer, which offers us no surprise whatsoever, is also in the Unfair Competence Act (No. 3/1991, of 10 January). Against unfair competence actions, including illicit advertising, says the Act in his article 32, a series of actions follow. The responsibility –passive legal capacity– (8) is established in article 34 (our emphasis):
1. The actions envisaged in Article 32 may be brought against any person participating in or ordering the unfair practice in question or who has cooperated in its performance. However, in the case of unjust enrichment, action may only be taken against the beneficiary of the enrichment
2. If the unfair practice is performed by workers or other collaborators in the discharge of their contractual duties and obligations, the actions envisaged in Article 32 (1), numbers 1 to 4 must be taken against the main party. Civil Law provisions shall prevail as regards compensation for damages and unjust enrichment. (9)
The clarity of the precept requires few interpretations, in our opinion. Paragraph 2 seems to refer to someone who has some kind of dependence relation with the main parties, to whom the first paragraph refers to. In addition to what seems clear in the Act, it seems hard to imagine that the contracts for the production of advertising do not include a repayment clause of hypothetical monetary responsibilities derived from any possible claim, by any title: the person who acts in an advertising offering his or her image is subject to the advertiserʼs instructions.
Nevertheless, the scientific divulgation in the food and dietary sector promotes each day that some types of behaviours be unmasked and portrayed by their lack of honesty for a great number of consumers, a point this one that, we hope, will incide too in the lack of effect of unlawful advertising, in a not too distant future (10). While we were writing these lines, in fact, something has happened that allows us to illustrate what we were referring to with that “unmasking”: the company Tiger attached an infusion, until November 28, with the healthy statement “energetic.” A warning in Twitter was enough for that company to answer in the following manner: “We have informed the Institutional department about the incident and a change of label is in process. Thank you very much.” You can check it in this link: https://twitter.com/tiger_stores/status/671263179834572801
Kind regards and see you soon.
Notes:
1. Regulation (EU) No 432/2012 of 16 May 2012, establishing a list of permitted health claims made on foods, other than those referring to the reduction of disease risk and to children’s development and health.
2. Translation at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011R1169&from=EN
3. Article 7. Fair information practices.
1. Food information shall not be misleading, particularly:
(a) as to the characteristics of the food and, in particular, as to its nature, identity, properties, composition, quantity, durability, country of origin or place of provenance, method of manufacture or production;
(b) by attributing to the food effects or properties which it does not possess;
(c) by suggesting that the food possesses special characteristics when in fact all similar foods possess such characteristics, in particular by specifically emphasising the presence or absence of certain ingredients and/or nutrients;
(d) by suggesting, by means of the appearance, the description or pictorial representations, the presence of a particular food or an ingredient, while in reality a component naturally present or an ingredient normally used in that food has been substituted with a different component or a different ingredient.
2. Food information shall be accurate, clear and easy to understand for the consumer.
3. Subject to derogations provided for by Union law applicable to natural mineral waters and foods for particular nutritional uses, food information shall not attribute to any food the property of preventing, treating or curing a human disease, nor refer to such properties.
4. Paragraphs 1, 2 and 3 shall also apply to:
(a) advertising;
(b) the presentation of foods, in particular their shape, appearance or packaging, the packaging materials used, the way in which they are arranged and the setting in which they are displayed.–Translation at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011R1169&from=EN
6. The food information that must be given to the consumer from 2014 in the European Union, Revista CESCO de Derecho de Consumo, No. 8/2013: http://www.revista.uclm.es/index.php/cesco, Ana Carretero García, Profesor of Civil Law for the University of Castilla-La Mancha: “In theory, the Regulation aims to harmonize and organize in a systematic way the information that producers must give to consumers on food products, but also it is necessary to reveal its deficiencies, for many important aspects remain unsolved, to be resolved in the future or in the hands of member States (something clearly contradictory with an harmonization process aimed at offering legal security)”.
7. See address here: http://www.who.int/dg/speeches/2013/health_promotion_20130610/en/. And also http://comeronocomer.es/la-carta/comer-o-no-comer-vuelve-que-margaret-chan-nos-proteja-una-corporacion-poderosa-puede-vender.
8. Passive legal capacity is, very briefly, the quality through which a physical or legal person can be, in relation with a particular issue, the defendant in a judicial proceedings, that is, can be subject to a judicial proceedings as the part to whom is being claimed or reclaimed. Active legal capacity is the capacity to sue or claim.
9. Translated at: https://webgate.ec.europa.eu/ucp/public/index.cfm?event=public.country.viewFile&lawID=29&languageID=EN
10. In this study we analyse regulations, not jurisprudence, but it is not superfluous to remark here that there are judicial pronouncements that attribute a direct responsibility to third parties who are not strictly speaking the advertiser, like, for instance, the media in which it is advertised, as the Judgement of 17 June, 2011, of the Audiencia Provincial of Madrid, Sección 28ª, Appeal No. 455/2010, Judgement No. 208/2011, whose dictum is available in the first of the three instalments addressed to advertising in Courts: http://criticaprocesal.blogspot.com.es/2014/09/la-publicidad-alimentaria-y-nutricional.html. While it is true that the legal title invoked in these cases (also the one of the Judgement of the Juzgado de lo Mercantil No. 6 of Madrid, Proceedings No. 817/2013, of 18 June, 2014) is the one of article 7.2 of the Royal Decree 1907/1996, that expressly declares it applicable, the said precept does not directly include a clause of imputation of responsibility, so that the ultimate ground of that imputation lies in the ilegal character of the judged advertising. It is not the same thing, in our opinion, that a famous person confounds the public by saying that the coffee is delicious, without being so, as confounding the public by attributing a beneficial effect to a not recommended food, knowing the truth. The latter, being also reproachable ethically, affects public Health and many peopleʼs health particularly, and does so to the detriment of many purses (who sustain the public Health system with our taxes) to the benefit only of his or her own (purse).
