UK: Ofcom may face legal action from NHF - children’s advertising consultation

With almost a third of UK children now being overweight, there has been growing social and public policy concern over the increase in childhood obesity. How TV advertising for food and drink should be regulated is one of the most hotly contested debates taking place in the marketing industry today. In 2004, the government, requested that the communications regulator Ofcom consider new, more rigorous rules for the promotion of products that are high in fat, salt and sugar ("HFSS foods") to children. The nutritional criteria to decide what foods would fall into this category was provided by the Food Standards Agency to Ofcom in December 2005. Click here to view previous article: "Nutritional criteria – which one?".

Now, Ofcom has been threatened with legal action by the National Heart Forum, an alliance of 50 medical and consumer groups, due to Ofcom’s dismissal of the 9pm watershed for food advertising as a possible option. The NHF claims that it has evidence that this option is favoured by health groups and parents. The Forum will seek a judicial review to force Ofcom to include this option in the consultation.

An Ofcom report published in July 2004 found that television food advertising only had a modest direct effect on children’s food preferences. The research indicated that indirect effects were likely to be larger but there was insufficient evidence to determine the size of these effects. However, the research also concluded that the influence of advertising was small when compared with other factors potentially linked to childhood obesity such as exercise, trends in family eating habits, school policy, public understanding of nutrition and labelling.

Nevertheless, subsequent Ofcom research has reportedly found a growing body of evidence of the links between television advertising exposure and children’s food preferences, but perhaps most significantly, television is still the key medium for communicating messages about food and drink products to the widest audiences and this is likely to be the main reason for the proposed changes. (This is despite television advertising of food to children declining each year.)

Ofcom’s proposals for change were unwrapped at the end of March when Ofcom launched a public consultation on television food advertising. Ofcom’s recommendation was some form of volume restriction as advertising of HFSS Funds was justified and proportionate.

Ofcom have suggested options for volume restriction. Each is designed to produce a balance between an effective shift in television food advertising to impact on children’s preferences and behaviours without an unduly adverse effect on the funding for range and quality in children’s programmes or on the legitimate activities of food manufacturers and retailers.

The three options are:

1. timing restrictions on certain food and drink products;
2. timing restrictions on all food and drink products; or
3. cutting the amount of advertising of all food and drink.

Ofcom has not indicated a preferred option and has actively invited proposals for a fourth option. The fourth proposal could be a permutation of the package of measures in the three core options or could be a completely new proposal.

The concern that the NHF has is that the option of a pre-9pm watershed ban on the television advertising of HFSS foods, which had previously been considered by Ofcom, has been ruled out as "disproportionate". The 9pm watershed would have cut the amount of this kind of advertising on four- to 15-year-olds by 82%, but it would also make it difficult for adults to see HFSS advertising aimed at them and the main television channels could lose out on up to £240million of advertising revenue a year. However, Ofcom has made it clear that, despite their current opinion that this option would be disproportionate, it would welcome stakeholder views on this matter. Ofcom is clearly trying to strike a balance between the interested parties.

Despite this offer by Ofcom, Jane Landon, the deputy chief executive of the National Heart Forum, has said: "We are dismayed that Ofcom has weighed industry profits against children’s health, compromised this important consultation and forced us to take this unprecedented step of seeking a fair consultation through the courts."

The NHF have referred to a British Heart Foundation online survey conducted in May, which found that 68% of parents would like to see a pre-watershed ban on junk food advertising, while just 7% were against a pre-watershed ban. A total of 75% of parents believed television junk food advertising influenced their children’s food choices.

In earlier discussions with all parties involved in the consultation, it become clear that debate around the potential effects of each option would benefit from an updated analysis of a full year of data. Ofcom has been therefore currently updating its Regulatory Impact Assessment to ensure that all parties with views on this issue are able to draw on the most current data available when forming their responses to the consultation.

Having considered the revised data, Ofcom is maintaining its proposed for new restrictions on food and drink advertising with the details of the 3 options being amended only slightly. Click here to view this update. Some of the classifications have altered e.g. the results now identify the effect on 4-9 year olds and 10-15 year olds separately as well as in the combined category. The fourth option remains as an invitation for Stakeholders to put forward a proposal. In order to allow stakeholders sufficient time to consider the new data, it has extended the closing date for the consultation to 30 June. Ofcom appears to be keen to gain the views from those stakeholders with expertise in this area, however Ofcom is maintaining its position in relation to the 9pm watershed option. It re-stated that it welcomes representatives on the 9pm option and any new evidence that consultees can provide in relation to that option.

Additional data can be found by clicking here.

To respond to the consultation, click here to access the online form.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 13/06/2006.