The
Regulation of Food Advertising: a Striptease in Instalments.
I.
Introduction
A misspelling
is still such no matter how many people keep incurring in it. In the
same way, an illegality remains one no matter how many people incur
in it without even receiving a miserable fine. It remains an
illegality just the same. We say this to illustrate how the consented
practice in time can generate an inexact perception on the legality
of some behaviours. And here we are not talking about private actors
only; we are also talking about the very same Administration, that
has been materialising behaviours for years and years, only to see
how these behaviours have been declared illegal afterwards by the
Courts of Justice, both national and international. (There are many
examples: does it sound familiar to you the abusive character of
mortgage clauses, for example, consented for years both by public and
private actors?)
Well then, in
the question of food advertising (or, in general, on the presentation
to the public of the same) we perceive that critical pressure has
increased and that it demands that action be taken against some
behaviours which, in spite of being tolerated up till now, present a
very doubtful compatibility with the regulations currently in force.
The
issue, indeed, is a highly topical and polemical one: authorised
voices have dealt with the question very recently. So, for example,
in the blog Scientia,
José Manuel López Nicolás (PhD and lecturer of the Biochemistry
and Molecular Biology Department of the University of Murcia) carried
out an analysis in June, 2015, concerning the advertising done by
celebrities and their possible responsibility as colaborators in the
possibly intentional inexactitudes (when not even possible
deception). The study is available here:
http://scientiablog.com/2015/06/05/son-responsables-los-famosos-de-la-publicidad-que-hacen/.
In his own blog, in fact, it was denounced time ago (December, 2012)
how the normʼs lack of general suitability, coupled with the tradeʼs
cunning, allowed some practices, considered inadequate, to move with
absolute impunity
(http://scientiablog.com/2012/12/21/el-reglamento-europeo-que-ha-acabado-con-la-investigacion-el-desarrollo-y-la-innovacion-en-la-industria-alimentaria/).
In
the same way, the equally noted blog “El Comidista” of the
journal El País echoed these polemical issues. The question was that
if in order to sell, anything goes: Football players who advertise
sugary foods aimed at children, women fond of bullfighting who
advertise vegetable products and singers who care for your
gastrointestinal tract. In order to sell, anything goes?:
http://elcomidista.elpais.com/elcomidista/2015/07/08/articulo/1436374958_145117.html.
Later, in any case, we will see more examples.
As things
are, we have thought it convenient to give our own point of view to
the debate raised, taking as basis both the currently regulation in
force and the available scientific evidence with regard to health and
the protection of consumer rights.
We enumerate
below four examples of behaviours on which it is sound to ask oneself
whether they are compatible with the promotion of public health or
not; whether they respect the scientific knowledge accepted on human
and dietary nutrition; whether they are ethical and, no less
important, legal:
●
Statements or suggestions of healthy properties included in
superfluous foods, that is, in products that are not recommended for
a regular consumption by scientific consensus.
● Inclusion
of labels or guarantees by health companies in the aforementioned
products, in order to add a “bonus” of health over others that
are equally or more idoneous for these goals.
●
Concealment of its evident disadvantage over other healthy, not
processed foods (besides being cheaper too), so to simulate the
benefits its consumption would give.
● Inclusion
of decoys based on accesible properties with a diet in which are not
included superfluous foods, or not recommended nutritional profiles2.
We will try
to show that such behaviours collide with the advices included in the
nutritional consensuses or with the guidelines included in authorised
dietary guides, so that they should be considered incompatible with
the promotion of public health and, as a consequence, unethical. The
first two behaviours, furthermore, are legally forbidden by the
specific nutritional regulations currently in force (although
incomplete: we will justify later this apparent absurdity). With
regard to the other two behaviours, as we will see, they are
forbidden by the consumer regulation and the general one on
advertising and competence.
Not to turn
this text into a cumbersome reading, we have decided to divide this
document into four parts, devoting up to six subsections to the
second part concerning the analysis of the norms. We will follow this
index:
I.
Introduction.
II. Context.
The applicable norms:
- General Advertising and consumers.
- Unfair Practices.
- “Specific” unfair practices on food advertising.
- 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.
- 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.
- The responsibility of advertisers and their agents.
III. The
advertising aimed at children.
IV.
Conclusions.
As our end is
to explain with transparency the regulation of food advertising and
how it deals with daily reality, you will see after a calm and forced
striptease how ugly is the show we face today due to the behaviour of
some actors without scruples. Meanwhile, we invite you to ask
yourself how scientific, ethical and legal are the advertisements
that surround you in your daily life. And so, after this “appetizer,”
we say goodbye with a “see you soon.”
1
We start with the present one the publication of a series of
instalments that will conform a study on the laws and norms that
regulate food advertising, taking into consideration the scientific
evidence available on health and the protection of consumer rights,
carried out jointly with Julio Basulto (juliobasulto.com
and @JulioBasulto_DN
in Twitter). Julio
is a dietician-nutricionist, teacher in diverse institutions and
member of different groups, boards, societies and committees of
experts. He is author of the books Mamá
come sano,
Se me hace bola and co-author of Comer
y correr,
Secretos de la gente sana and No
más dieta.
At present Julio, a national authority on nutrition and dietetics,
collaborates with the programs “Healthy People” of Radio
Nacional de España (RNE), and “Being a Consumer” of the Cadena
Ser. The experience of working with Julio is always priceless and
great. Our most sincere gratitude for it.
2
Royo-Bordonada MÁ. Using nutrient profiling to prevent misleading
food marketing. Public Health Nutr. 2015 Oct; 18 (15):2891.
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