The regulation of Food Advertising: a Striptease in Instalments, III: Context. The applicable norms, points 2 and 3.

The regulation of Food Advertising:
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 (1^st and 2^nd) 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.