A submission to the Independent Television Commission
National Food Alliance
At a meeting between Frank Willis and Jaiiicc Grinyer, from the Independent Television Commission (ITC) and Sue Dibb and Mike Rayner, representing the National Food Alliance (NFA) in December 1993, Frank Wililis indicated that the ITC was open to considering amendments to those parts of the ITC Code of Advertising Standards and Practice which are concerned with food advertising aimed at children. For reasons given in its 1993 report, Children: Advertisers' Dream, Nutrition Nightmare 1, the NFA considers that present patterns of food advertising encourage children to consume an unhealthy diet. This report also put forward various recommendations including a revision of the Code.
In addition the Nutrition Task Force set up to implement the nutritional aspects of the Government's health strategy outlined in the Health of the Nation White Paper proposes that the bodies regulating food advertising, including the ITC, 'should be invited to examine their codes of practice in the light of the Health of the Nation dietary targets with a view to identifying any desirable changes' and 'that particular regard should be paid to children.' 2
Accordingly the NFA's Advertising Working Party has drawn up proposed amendments to the ITC Code which arc detailed in this document. We have aimed to be realistic in our proposals and to reflect the Health of the Nation strategy. However the NFA also considers that the Code itself, with its focus on individual adverts does not address the overall and cumulative effect of advertising. The NFA urges the ITC to investigate measures which would reflect these concerns. The NFA's 1993 report also made a number of recommendations regarding the structure and procedures of the ITC with respect to their role in regulating advertising. While outside the scope of this submission, the NFA considers that these are equally important issues.
In drawing up its proposed amendment the NFA has looked at three sections of the Code: the introductory section outlining General Principles and Standards for television advertising; Appendix 1: 'Advertising and Children' and Appendix 3: 'Health Claims, Medicines, Treatments and Dietary Supplements'. The proposed amendments would principally affect food advertising aimed at children but it is not always easy to draw a distinction between advertising aimed at children, advertising aimed at adults designed to persuade them to buy foods for children and advertising with appeal across age ranges. Therefore the amendments have been drafted with the aim of helping to ensure that all food advertising helps rather than hinders children from attaining a healthier diet.
1. General Principles and Standards of the Code
The NFA agrees with many of the general principles and standards outlined in the introductory section of the Code. It's main concern is that Rule 3 of the section on 'General Principles', should receive greater emphasis in practice. Rule 3 states that rules of the Code 'are intended to be applied in the spirit as well as the letter'.
Moreover since the largest category of television advertising is for food, there are several paragraphs in the introductory section which could be made more explicit in their relationship to food advertising.
Proposed Amendment 1.1
Amend Rule 3, 'The detailed rules set out below are intended to be applied in the spirit as well as the letter' to read:
3. The detailed rules set out below will be applied in the spirit as well as the letter'
Additional rationale: the proposed amendment merely strengthens this rule.
Proposed Amendment 1.2
To Rule 19 (Health and Safety) add:
Those components of advertisements for food and drinks which relate to nutrition and health should be consistent with the reports of expert advisory committees accepted by the Government.
Additional rationale: Rule 19 already states that 'No advertisement may encourage or condone behaviour prejudicial to health and safety'. The proposed amendment makes the rule more explicit in relation to dietary behaviour and future health. That nutrition and health claims in advertisements for food should be consistent with current Government dietary recommendations is implicit with the action plan of the Nutrition Task Force to achieve the Health of the Nation dietary targets which recommends that the Code should be examined in the light of those targets.
Proposed Amendment 1.3
In Rule 26 (Denigration) include the following:
'Advertisements must not unfairly attack, discredit or denigrate the recommendations of reports of expert advisory committees accepted by the Government.
Additional rationale: Rule 26 already states that 'Advertisements must not unfairly attack or discredit other products or services'. Like Proposed Amendment 1.2, this proposed amendment makes the Code more explicit with regard to food advertising and in particular with respect to current Government dietary recommendations to be found in reports of Committee on Medical Aspects of Food Policy and other Government advisory committees.
The NFA notes that there are different ways that Code rules are currently framed. Firstly the rules are phrased either as prohibitions, eg 'children must not be shown playing in the road' (Appendix 1 Rule 12a,ii) or exhortations, eg 'in crossing busy streets children must be seen to use pedestrian crossings' (Appendix 1 Rule 12a,v). Prohibitions are more common than exhortations and therefore the NFA has generally phrased its proposed amendments as prohibitions.
Secondly when the rules are concerned with particular foods the rules generally categorise foods by type eg 'confectionery', 'snack foods', as in Appendix 1 Rule lie. Another way of categorising foods is by their nutrient content e.g. 'sweet', as in Appendix 1 Rule lib, or 'high fat', 'good source of vitamins' etc.
The NFA considers that categorising foods by nutrient content levels is more objective than categorising foods by type. For example the term 'snack food' in Appendix 1 Rule lie might apply to foods ranging from crisps, through sandwiches to apples, and it would be better to use expressions such as 'foods high in fat', 'foods high in sodium' etc. Expressions such as 'high in fat' could be defined numerically in a similar way to the conditions for making nutrition claims (such as 'low fat', 'high fibre' etc.) drawn up by the Food Advisory Committee. See for example the Food Advisory Committee Report on its Review of Food Labelling and Advertising3.
However the NFA concedes that if the rules of the Code were to categorise foods by nutrient levels then there would need to be generally agreed definitions for the expressions used. The definition of such descriptions should be an urgent priority for the Ministry of Agriculture Fisheries and Food (MAFF) in conjunction with the Department of Health (DOH) because of the bearing this has upon various issues relating to the labelling and advertising of foods. In the absence of such an agreed set of definitions the NFA has generally phrased its proposed amendments in terms which categorise food by type. However, some of the proposed amendments use the expression 'foods which contain non-milk extrinsic sugars or which are acidic in nature' because in this instance there should be little dispute over the definition of such an expression.
The NFA has considered various options for methods of categorising foods by food type eg that used by MAFF when compiling its reports of food consumption patterns (of reports of the National Food Survey and the Dietary and Nutritional Survey of British Adults4). However the NFA also notes that the DoH with the Health Education Authority (HEA) and MAFF are in the process of developing a 'National Food Selection Guide' which will categorise foods into five groups: 'Fruit and vegetables', 'Bread, other cereals and potatoes', 'Meat, fish and alternatives' 'Dairy foods' and 'Fatty and sugary foods'. The proposed amendments to the Code detailed below have generally used this method of eategorising foods and so for example when they refer to 'fatty and sugary foods' the foods included within that category should be taken to be those defined by the National Food Selection Guide.
The NFA proposes that amendments be made to three sections of Appendix 1: Rules 2 and 3 (Misleadingness), Rule 11 (Health and Hygiene) and Rule 9 (Restrictions on Times of Transmission). In addition the NFA has considered amendments relating to the techniques and methods of food advertising likely to be seen by children.
Rule 2 and 3. Misleadingness
The NFA considers that advertisements for food and drinks aimed directly at children and advertisements aimed at adults for food and drink to be consumed by children can be misleading and therefore proposes:
Proposed Amendment 2.1
Amend Rule 3 'Advertisements for toys, games and other products of interest to children must not mislead' to read as follows:
3. 'Advertisements for toys, games, foods5, and other products of interest to children must not mislead.
Additional rationale: The proposed amendment merely makes this rule explicit with regard to foods and soft drinks.
Rule 11. Health and Hygiene
Rule 11 of Appendix 1 already contains restrictions on the way foods and drinks may be advertised. The NFA agrees, in principle, with the three subparagraphs of Rule 11 but suggests improvements to the wording.
It also notes that for reasons of health and hygiene Rule 11 restricts advertisements in the way they deal with the frequency and time of consumption of foods but it does not deal with the amount of food which children should consume to maintain optimal health. In order to avoid a range of diet related health problems (obesity, raised cholesterol and blood pressure; coronary heart disease and certain forms of cancer in later life) children should reduce not only the frequency but also the amount of fatty and sugary foods they consume. Accordingly the NFA suggests two new subparagraphs to Rule 11 which would prohibit advertisements from suggesting that children should consume excessive amounts of such foods.
Proposed Amendment 2.2
Amend Rule 11(a) 'Advertisements much not encourage children to eat frequently throughout the day 'to read as follows:
Advertisements must not encourage children to eat foods which contain nonmilk extrinsic sugars or drinks which are acidic in nature frequently throughout the day or in between meals.
Additional rationale: The existing Rule 11(a) prohibits advertisements which encourage children to eat any food frequently throughout the day whereas more frequent consumption of somc foods is advised by expert health bodies. For example the Health of the Nation White Paper recommends more frequent consumption of fruit, vegetables, and foods which are high in starch and/or dietary fibre such as bread, pasta and potatoes.
However the 1989 COMA Report of the Panel on Dietary Sugars6 notes that there is good evidence that frequent consumption of foods or drinks which contain non-milk extrinsic sugars lead to an increased risk of dental caries, particularly in childhood, and, Eight Guidelines for a Healthy Diet, published jointly by MAFF, DoH and the HEA cautions people with 'Don't eat sugary foods too often '7. The acidic nature of drinks can also cause dental erosion8.
The proposed amendment seeks to ensure that advertisements do not encourage children to eat specifically sugary or acidic products frequently throughout the day.
Moreover Eight Guidelines for a Healthy Diet recommends that the intakes of sugary foods and drinks should be limited to mealtimes and the proposed amendment is consistent with this advice.
Proposed Amendment 2.3
In Rule 11, after subparagraph (a), insert:
Advertisements must not encourage the excessive consumption of 'fatty and sugary foods'9.
Advertisement must not discourage the consumption of 'fruit and vegetables' or 'bread, other cereals and potatoes.'
Additional rationale: The 1991 report of the Committee on Medical Aspects of Food Policy (COMA) 10 recommends that everyone, including children, should adopt a diet which is lower in fat, saturated fat, non-milk extrinsic sugars and sodium. Such a diet would be attained by consuming less of the foods which are high in these nutrients and by eating more fruit, vegetables;bread, other cereals and potatoes. There are some advertisement (eg for Dime bars featuring Harry Enfield) which encourage children to consume fatty and sugary foods to excess. Rule 39 (of the main code) states that 'Advertisements must not foster immoderate drinking'. The proposed new rules extend the principal behind Rule 39 to certain food products for which, like alcohol, excessive consumption is harmful to health.
Proposed Amendment 2.4
Amend Rule 11(b) 'Advertisements much not encourage children to consume food or drink (especially sweet, sticky foods) near bedtime.' to read as follows:
Advertisements must not encourage children to consume food or drink, (especially foods containing non-milk extrinsic sugars or drinks which are acidic in nature), near bed time.
Additional rationale: The current Rule 11(b) is helpful because it implies that no food should be consumed near bedtime. There is good evidence that consuming products which contain non-milk extrinsic sugars or which are acidic in nature near bed time increase the risk of dental caries and there is some evidence that consuming other products (particularly fermentable foods such as milk) at this time may also increase the risk. The proposed amendment only slightly changes Rule 11(b). It removes the phrase 'sweet and sticky foods' because of problems in defining this expression.
Proposed Amendment 2.5
Amend Rule 11(c) 'Advertisements for confectionery or snack foods must not suggest that such products may be substituted for balanced meals.' to read as follows:
Advertisements for 'fatty and sugary foods' must not suggest that such products may be substituted for balanced meals.
Additional rationale: The existing Rule 11(c) states that 'advertisements for confectionery or snack food must not suggest that such products may be substituted for balanced meals'. The NFA agrees with the intention of this rule but notes that the term 'snack food' is imprecise (including apples, sandwiches etc for which more frequent consumption, in larger amounts, would be advisable) and that the rule may fail to cover foods which should be eaten infrequently and in small amounts (such as sweetened drinks, cheese spread, cakes, jam, cream, etc). The proposed amendment extends the rule to include all foods which should not be substituted for balanced meals, ie all foods which are 'fatty and sugary' as will be defined by the National Food Selection Guide.
Proposed Amendment 2.6
In Rule 11 insert:
Advertisements should not suggest that underweight is desirable or attractive or in any other way encourage children to become over concerned about their weight.
Additional rationale: There are growing concerns about the effects on health of being underweight and of dieting 11. A significant proportion of both teenage and pre -adolescent girls say that they are on weight reducing diets when they not overweight. Undernutrition at a time of physical growth and development has been found to have detrimental effects on metabolism and may lead to retarded growth, delayed puberty and to osteoporosis later in life. In addition dieting has been shown to have wide-ranging consequences for psychological function including altering the way information is processed, impairing cognitive performance and increasing preoccupation with food. Concern about food and weight can lead to eating problems and in more severe case anorexia and bulimia. Fifteen year old girls who diet are eight times more likely to develop eating disorders than non-dieters.12 Therefore every effort should be made to ensure that all advertisements including those for food products do not encourage preoccupation with undue slimness or dieting or encourage children to loose weight unnecessarily.
Rule 9. Restrictions on Times of Transmission
The NFA has considered various options for restricting the times of transmission of food advertisements. It has considered which foods for which advertisements should be restricted in their time of transmission and suggests that only advertisements for 'fatty and sugary' foods (as will be defined by the National Food Selection Guide) should be restricted. There appears to be few reasons for restricting the time of transmission of advertisements for any other foods. For some products (eg fruit and vegetables) the NFA would wish to see more advertising.
The NFA notes that the Code already restricts the method of advertising certain products until 'after 9pm' ( Rule 9b) and prevents advertisements for particular products (eg alcoholic drinks) from being transmitted during children's programmes or in the advertising breaks immediately before or after them' (Rule 9a). In recognition of the fact that children watch adult television and not just children's programmes and because there are times before 9pm when few children watch television, (eg mid-morning on weekdays), the NFA recommends restrictions on the transmission of advertisements for fatty and sugary foods 'at times when large numbers of children are likely to be viewing'. This is a phrase used by the ITC in Rule 1 of Appendix 1.
The NFA has also considered whether all advertisements for 'fatty and sugary foods' should be restricted in their transniission time or whether a quota for such advertisements could be imposed. For example the NFA considered proposing that less than 50% of the advertisements for foods transmitted at times when large numbers of children are likely to be viewing should be for 'fatty and sugary foods'. However the NFA is not certain whether such a quota system would be practical.
On the other hand there is good evidence that the majority of advertisements for food and drinks aimed at children are for 'fatty and sugary foods' 13. A restriction on the transmission times for advertisements for such foods would appear to be the only method of dealing with this. If a quota system is impractical then there would seem to be no alternative to a complete prohibition on advertisements for 'fatty and sugary foods' at certain times.
Proposed Amendment 2.7
In Rule 9 insert:
Advertisements for 'fatty and sugary foods' must not be transmitted at times when large numbers of children are likely to be viewing.
Additional rationale: Rule 9 already states that advertisements for alcoholic drinks, liqueur chocolates, matches, medicines, vitamins or other dietary supplements, 15 and 18 rated films must not be transmitted during children's programmes, and that only in exceptional circumstances should advertisements for medicines, vitamins and dietary supplements be shown before 9pm. Rule 9 therefore already contains scheduling restrictions for advertisements for products which are sometimes consumed by children (e.g. medicines, vitamins and dietary supplements) but for which limited consumption and/or parental supervision when consuming the products is advisable. The proposed rule would extend those scheduling restrictions to advertisements for certain foods for which a limited level of consumption is also recommended.
The NFA has also considered various options for restricting the methods used for advertising fatty and sugary foods to limit their appeal and suggests various new rules (detailed below) which are adaptations of existing rules for advertisements for other products. It recognises that taken together these proposed restrictions on advertising methods come close to being a restriction on the time of transmission of advertisements for 'fatty and sugary foods'. Certainly they amount to a virtual ban on the advertising to children of such foods because they would prohibit most of the techniques advertisers use to persuade children to purchase these food products.
Proposed Amendment 2.8
In Rule 9 insert:
Advertisements for 'fatty and sugary foods' which use techniques that are likely to appeal particularly to children, such as cartoons, toys or characters of special interest to children must not be transmitted when large numbers of children are likely to be viewing.
Additional rationale: Existing Rule 9b (ii) states that 'advertisements for medicines, or vitamins or other dietary supplements which use techniques that are likely to appeal particularly to children, such as cartoons, toys or characters of special interest to children'.. .'will be acceptable only after 9pm'.
Proposed Amendment 2.9
In Rule 9 insert:
Advertisements in which personalities, or other characters (including puppets etc) who appear regularly on television, present or positively endorse products or services of particular interest to children (including 'fatty and sugary foods') must not be transmitted at times when large numbers of children are likely to be viewing.
Additional rationale: Rule 9 (d) already states that 'Advertisements in which personalities, or other characters (including puppets etc.) who appear regularly in any children's television programme, present or positively endorse products or services of particular interest to children must not be transmitted before 9pm.' (NB the proposed new rule slightly extends the scope of Rule 9 (d) so that all personalities who appear regularly on television, not just in children's programmes, would be prevented from appearing in advertisements for 'fatty and sugary' foods).
Proposed Amendment 2.9
In Rule 9 insert:
Children must not be seen of heard in an advertisment for 'fatty or sugary food', when large numbers of children are likely to be viewing.
Additional rationale: Rule 39 (of the main code) states that 'Children must not be seen or heard in an advertisment for alcoholic drink'.
3. Health Claims, Medicines, Treatments and Dietary Supplements (Appendix 3 of the ITC Code)
The NFA considers that special care should be taken when advertisements aimed at children claim health promoting properties for foods or in other ways make reference to the child's physical or mental well-being, because, as acknowledged by the Code, children have a 'natural credulity' (Appendix 1, Rule 1).
In drawing up its proposed amendments to the rules in Appendix 3 the NFA has looked at five different types of health-related claims for foods. Currently Appendix 3 only has a section on 'Generalised health claims for foods' (e.g. 'good for you', 'nutritious' and 'wholesome') but the NFA considers that it should also cover:
The NFA also proposes that Appendix 3 should include rules on the advertising of slimming products.
Generalised health claims, specific health claim and nutrition claims
Proposed Amendment 3.1
Amend Rule 20 (Generalised Health Claims for Food) 'Generalised claims for properties such as 'goodness' or 'wholesomeness' may imply that a product or an ingredient has a greater nutritional of health benefit than is actually the case. In some cases reference to the properties may give a misleading impression of the properties of the product taken as a whole. Such claims are not acceptable unless supported by sound medical evidence.'
to read as follows:
Generalised claims for properties such as 'goodness' or wholesomeness' may imply that a product or an ingredient has a greater nutritional benefit than is actually the case. Generalised health claims for food are therefore not acceptable.
Rule 20 currently suggests that generalised health claims for food may be misleading and in which case are not acceptable. The NFA considers that generalised health claims are always misleading and therefore are never acceptable. If one takes the view that no food is 'healthy', 'good for you' or 'wholesome' in itself, that it is whole diets which are healthy, good or wholesome, then no food or ingredient should be allowed to claim such benefits.
The Food Advisory Committee (FAC) in the report of their Review of Food Libelling and Advertising 14 recommended that claims should only be allowed if they refer to 'measurable and objective characteristics'. Generalised health claims are, by definition, claims which do not refer to measurable and objective characteristics of a food. The FAC went on to recommend that 'meaningless descriptions (such as the use of 'special', 'selected', 'healthy', 'wholesome' without further explanation) should not be used'.
Proposed Amendment 3.2
In Rule 20 insert
Advertisements for foods should not contain a health claim unless it can be justified according to any recommendations that have been made or supported by the Chief Medical Officer. A health claim is any statement, suggestion or implication (including brand names and pictures) that a food is in some way beneficial to health and lying in the spectrum between, but not including, nutrition claims and medicinal claims'.
Additional rationale: The definition of a health claim used in this proposed amendment is that of the FAC. This definition covers both general health claims and also more specific claims such as 'helps l6wer cholesterol', 'good for your teeth and body' etc. The European Commission is currently in the process of drafting a Directive on food claims which may contain rules for the use of health claims but it is likely to be many years before such a Directive is implemented in the UK. In the meantime the NFA proposes that the ITC should restrict the use of health claims, in accordance with the advice of the FAC which stated that they had 'strong reservation about the use of health claims and recommended that 'health claims should only be permitted if they can be justified according to any recommendations that have been made or supported by the Chief Medical Officer (CMO)'.
The proposed rule would not prohibit advertisements from containing information about nutrient levels in foods (nutrition or nutrient claims), provided that the advertisement does not imply that consumption of the food by itself will have a significant health benefit. Medicinal claims (defined by the 1984 Food Labelling Regulations to be claims that a product 'is capable of preventing, treating or curing human disease') are already prohibited by those Regulations unless the food has a product licence issued under the provisions of the 1968 Medicines Act.
Energy and performance claims
Proposed Amendment 3.3
In Rule 20 insert:
Advertisements should not claim or imply that a food is a superior, rapid or reinvigorating source of energy.
Additional rationale: There is insufficient evidence that any particular food is a superior source of energy than any other food 15 The 1989 COMA Report on Dietary Sugars dealt with this issue directly: 'the availability of energy to the body is... regulated at a fairly constant level and, except in situations of starvation, is virtually independent of food intake.' Many advertisements for foods aimed at children (e.g. for Frosties) suggest that they are a good source of energy. Such advertisements are misleading and should be explicitly prohibited by the Code.
Similarly the COMA Report rejected the notion that a single food can refresh or restore: 'The argument that consumption of sugars or other energy rich foods will raise the blood glucose concentration and promptly reinvigorate the fatigued individual is false.'
Proposed Amendment 3.4
In Rule 11 insert:
No slimming product should be advertised when large numbers of children are likely to be viewing.
Additional rationale: For the reasons for this amendment see the rationale for Proposed Amendment 2.6.
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