Marketing to children is often the subject of great debate, particularly in the food and beverage sectors where a number of companies have come under substantial scrutiny in Australia for allegedly contributing to the obesity "epidemic". According to the Australian Department of Health, approximately 1 in 4 Australian children aged 7-15 are to be considered overweight or obese, and, as such, per capita, Australia has one of the highest rates of childhood obesity in the world. Research has shown that food promotion affects food purchases and influences food choices at category and brand level1.
What are some of the key legal and regulatory obligations in Australia relating to the marketing and advertising of food to children?
Australia currently has in place a complex mix of laws and regulations and self-regulatory arrangements governing the promotion of products to children, all of which aim to ensure that advertisers and marketers develop and maintain a high sense of social responsibility in advertising and marketing food to children.
There are two industry specific codes in place relating to advertising and marketing food to children, which were introduced in 2009 in response to community concerns about promotion of foods high in energy, fat, sugar and salt to children. They apply to advertising and marketing in all forms of media, including television, radio, newspaper, magazine, cinema, outdoor signage, internet e-mail and interactive games.
The codes are the:
Responsible Children’s Marketing Initiative (RCMI), which applies to those companies that are signatories to the RCMI (current RCMI signatories include Campbell's, Cereal Partners Worldwide, Coca-Cola, Fonterra Brands, Ferrero Australia, General Mills Australia, George Weston Foods, Kellogg's, Lion Dairy and Drinks, Marks, Mondelez International, Nestle Australia, Patties Foods, PepsiCo, Sanitarium Health, Simplot Australia and Unilever Australasia); and
Quick Service Restaurant Initiative for Responsible Advertising and Marketing to Children (QSRI) – which also only applies to those companies that are signatories to the QSRI (current QSRI Signatories include Chicken Treat, Hungry Jack's Australia, KFC, McDonald's Australia, Oporto, Pizza Hut, Red Rooster).
Food and beverage companies that subscribe to the RCMI and QSRI, must ensure that (in any advertising or marketing of foods to children):
- the products represent healthy dietary choices, healthy lifestyles, and are consistent with established scientific or Australian government standards; and
- the advertising or marketing communication references, are in the context of a healthy lifestyle, designed to appeal to the intended audience through messaging that encourages good dietary habits and physical activity.
The Advertising Standards Bureau administers the complaints process for the codes, in conjunction with the following additional codes that all food and beverage advertisers must comply with, including:
- Australian Association of National Advertisers (AANA) Code of Ethics - the object of this Code is to ensure that advertisements are legal, decent, honest and truthful and have been prepared with a sense of obligation to the consumer and society and fair sense of responsibility to competitors; and
- AANA Food and Beverage Advertising and Marketing Communications Code - the object of this code is to ensure that advertisers and marketers develop and maintain a high sense of social responsibility in advertising and marketing food and beverage products; and
- AANA Code for Advertising and Marketing Communications to Children - the object of this Code is to ensure advertisers and marketers develop and maintain the highest level of social responsibility in advertising to children.
There are also prohibitions in the Competition and Consumer Act 2010 (Cth) (CCA) which apply generally and to advertising in particular. They include prohibitions on misleading and deceptive conduct and on making false representations. For example, advertising that goods are of a particular standard, quality, value, grade, composition, style or model or have a particular benefit, feature, performance characteristic, history or a particular previous use, or that goods originate from a particular country or place, when they do not, will breach these prohibitions.
There are also food specific laws and regulations for the labelling of products, including, the Food Standards Australia and New Zealand Code (FSANZ Code) which prescribes mandatory labelling requirements for food and beverages.
Advertising to children on television is also regulated by:
- the Australian Communications and Media Authority (ACMA), a statutory body which administers the Children’s Television Standards 2009 - which sets out the requirements for "C" classified programs and "P" classified programs shown on television; and
- Free TV Australia which administers the Commercial Television Industry Code of Practice - which prohibits certain types of advertising in specified classification bands.
What happens if companies do not comply with these obligations?
Failure by a company to comply with the CCA and FSANZ Code may result in enforcement action by the relevant regulatory authority, and can include court proceedings, penalties and adverse publicity by the relevant authority as well as an expensive requirement to withdraw or remove the advertising and marketing.
For the self-regulatory codes, unfortunately, little more can be done to those companies who breach the codes, other than a 'naming and shaming' for failure to comply.
However, the 2014 Annual Compliance Report for the RCMI and QSRI revealed that compliance with the RCMI and the QSRI core principles during their sixth year of operation was very high, with 99.7 per cent (RCMI) and 99.5 per cent (QSRI) of signatory advertising being compliant with the advertiser's commitment under the initiatives. This high level of compliance appears to demonstrate that signatory companies have in place processes to ensure adherence with their commitment to the initiatives. The report also suggests that there were some foods that did not meet the signatories' nutrition criteria for advertising during children's television programs - resulting from either the provision of bonus airtime by the television network or the late scheduling (or change in scheduling) of programmes and were not undertaken at the direction of the signatories.
What can companies do to ensure they meet Australian regulatory obligations?
Ensure that any advertising does not undermine the importance of a healthy or active lifestyle and avoid encouraging excess consumption - this can be done through the representation of product or product portion sizes in the setting portrayed.
If making reference to the nutritional value or health benefits of a product, ensure that such references are accurate and appropriate to the level of understanding of the child and keep documentation to substantiate any claims you make on your products.
Ensure that any advertising or marketing does not improperly exploit children’s imaginations in a way which might reasonably be regarded as being based upon an intent to encourage those children to consume what would be considered as excessive quantities of that food.
Do not state or imply that possession or use of a particular food or beverage product will afford physical, social or psychological advantage over other children.
If advertising particular features of a product, ensure that those features are an integral element of that product being offered.
Ensure that any advertising or marketing materials do not undermine the authority, responsibility or judgment of parents or carers, nor must such material urge a child’s parents or carers to buy a product for them.
If using popular personalities or celebrities in advertising in relation to a product, ensure that you are distinguishing between the commercial promotions and the programme or editorial content.
Avoid portraying images or events which depict unsafe uses of a product or unsafe situations which may encourage children to engage in dangerous activities or create an unrealistic impression in the minds of children or their parents or carers about safety.
Avoid portraying images or events in a way that is frightening or distressing to children or demeaning to a person or group on the basis of ethnicity, nationality, race, gender, age, sexual preference, religion or mental or physical disability.
Ensure that media agencies, networks and channels understand signatories' commitments and that they are honoured in the formulation and placement of advertising.
This article is part of the 3rd edition of the Food Law Digest 2015.
 Position statement - Food Marketing to children - (Cairns G.2C Angus K.2C Hastings G.2C Caraher M 2013-3).