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University of New South Wales Law Journal Student Series |
THE OBESITY EPIDEMIC: A COMPARISON OF THE AUSTRALIAN AND UNITED STATES APPROACH TO REGULATING UNHEALTHY FOOD ADVERTISING TARGETED AT CHILDREN
KATHERINE PETSOGLOU
I INTRODUCTION
The obesity epidemic is a public health crisis which has been steadily rising since the 1980s.[1] The United States has the highest rate of obesity among OECD countries[2] and is ranked 12th globally with their national obesity rate increasing by 11.4% since 2000.[3] Australian national obesity rates have similarly risen, growing 27% in the past 10 years,[4] leaving Australia ranked 27th globally.[5]
This paper will, in Part I, outline the United States and Australian government’s role in curbing the obesity epidemic in the context of the multitude of factors which contribute to this public health crisis. Consequently, a broad look at the measures the Australian and United States governments have implemented in response will be considered.
Part II of this paper will narrow in scope focusing on the regulation of ‘unhealthy’ food advertising targeted at children. The American Journal of Clinical Nutrition found junk food advertisements ‘significantly increased food consumption in children’ however the link to adults was not as strong.[6] Therefore, sophisticated marketing techniques to target children through means of television, online mediums, packaging, outdoor advertising and marketing in schools[7] means supply-driven consumption of unhealthy foods is increased in exchange for profit, at the cost of health.[8] This section will then investigate the effectiveness of the current systems Australia and the United States have enforced to combat this issue specifically.
Part III of this paper will explore the possibility of a co-regulatory solution to aid the adverse impacts of targeted ‘unhealthy’ food advertising. With the purpose of reducing the exposure children have to these advertisements, ascertaining if government intervention in the form of legislative change can be administered in Australia and the United States can occur and if not, why, will be considered. In this, the protection of free speech and the impact this has on regulating advertising will be raised by comparing the legal landscape of each country. To exemplify the difference in approaches Australia and the United States have in regulating advertising, the adjacent example of each government’s response to the tobacco health crisis will be used.
Reflecting on this, Part IV will outline recommendations for areas of possible reform. This is to reduce the cost of the obesity epidemic primarily for the health of the future generation whilst also accounting for future tangible and intangible costs.
A Introduction to the Obesity Epidemic
Globally, obesity rates have almost tripled since 1975 with 16% of adults worldwide over the age of 18 living with obesity in 2022.[9] Obesity is defined as a body mass index (BMI) over 30.0 and caused 4.7 million premature deaths globally in 2017.[10] This rate is four times the rate of deaths by road accidents and five times of those who died of HIV/AIDs.[11] On this trajectory, it is projected that 1 billion adults will be obese in 2030.[12]
In the United States, the collection of the most recent, wholistic national obesity data was disrupted due to COVID-19[13] however it was found that between 2017 and 2020, 41.9% of adults were living with obesity.[14] Rates of extreme obesity (a BMI of 40 or over) were found to have increased 37% since 2000 with the health crisis costing $147 billion in healthcare expenses.[15] The highest rates of obesity are found in Black adults with 49.9% being obese whilst Hispanic, White and Asian adults having rates of 45.6%, 41.4% and 16.1% obesity respectively.[16] In 2022 the CDC found one in five children in the US were living with obesity with the change in Youth Obesity Rates increasing 42% over the same period.[17] Obesity results in 400,000 preventable deaths in the United States alone yearly.[18]
Rates of obesity in Australia somewhat mirror the US with the Australian Bureau of Statistics 2022 National Health Survey finding that two-thirds of Australians are overweight and 31.7% are obese.[19] Severe obesity is higher in Australia compared to the United States accounting for 12% of individuals.[20] Obesity rates of Aboriginal and Torres Strait Islander individuals are at 45% which increased from 40% in 2012-2013. One in four children are overweight in Australia with 8.3% falling into the obese category.[21] In 2018, the cost of obesity was $11.8 billion and is projected to be $87.7 billion by 2032 if little is done to address the issue.[22] After tobacco use, being overweight (a BMI over 25) is a leading risk factor to poor health responsible for 8.4% of Australia’s disease burden.[23]
II ROLE OF THE EXECUTIVE IN REDUCING OBESITY
The American Medical Association has recognised obesity as a disease since 2013.[24] Though obesity can be blamed purely as an individual issue, multiple influences dictate individuals’ eating and physical exercise habits.[25] Amongst a myriad of other factors including one’s lifestyle, demographics and biological attributes (40-70% of weight variability is inherited),[26] the government can intervene in macro-level systems by influencing food marketing, taxing, economic distribution and healthcare systems. These overarch the social and physical environments which individuals function within. Therefore, through targeted government intervention including physical activity and nutrition programs, accessibility of cost-effective nutrient-dense food, taxes on sugary drinks and restriction of unhealthy food advertising, the role of the executive is significant.
A Current Federal Intervention Targeting the Obesity Epidemic
A range of measures have been implemented on a broad macro-level in the United States and Australia to target rising obesity rates. However, both countries have had criticism levelled at them due to the lack of consistent evidence-based strategies to support healthy lifestyles.[27]
1 United States
In 2010 the Healthy, Hunger-Free Kids Act was introduced allocating funding to federal schools to provide low-income children with better access to healthy foods.[28] This also changed the requirements for the number of fruits, vegetables, and whole grains schools must serve, complemented by $4.5 billion in reauthorising child nutrition programs.[29] Implemented as part of the Lets Move! Campaign, the Act was built on five pillars including encouraging physical activity and creating a healthy start for kids seeing other measures include ensuring 60 minutes of physical activity is normalised between K and 12.[30] However, changes in government administration have seen the program being rolled back.[31] Less specific measures implemented in the United States include the USDA’s Food and Nutrition Service which encourages healthy diets through education and the promotion of positive eating habits.[32] Further, changes to the Special Supplemental Nutritional Program for Women, Infants and Children, which reaches 53% of all infants in the US including 75% of Hispanic infants, has seen their food packages now providing more whole grains, fruits, and vegetables.[33]
2 Australia
Australia has implemented a range of national strategies to attempt to target the obesity epidemic with the most recent being the National Obesity Strategy 2022-2032 and the National Preventative Health Strategy 2021-2030.[34] The former has the role of “changing the systems, environments and commercial determinants that affect Australians’ opportunities to live active and healthy lives”.[35] This attempts to create supportive, sustainable, and healthy environments, the second empowering people to stay healthy and the final enables access to early intervention and care.[36] The latter is a broader strategy which in it involves recommendations to improve healthy eating and physical activity.[37] Both programs also broadly recognise target a need for better marketing surrounding food advertising. The effectiveness of these strategies is widely unknown due to their recent release. Other less-targeted strategies and agreements include the Healthy, Safe and Thriving: National Strategic Framework for Child, the Youth Health Care Strategy, the National Health Care Agreement 2012 and the National Men and Woman’s Health Strategies for 2020-2030.[38]
III ISSUE WITH FOOD ADVERTISING
The increasing rates of obesity are a result of countless factors. However, considering social norms and access to healthy food are some of the largest determinants of food choices,[39] bioinformatic breakthroughs including using high-fructose corn syrup and palm oil to provide food with a longer shelf life for lower prices have contributed to this crisis.[40] This has provided for a growth of fast-food chains in the United States and Australia who have capitalised on the demand for fast convenient foods. Given the rate of individuals eating meals out of the home doubled between 1970 and 1990, the efficiency of production increased to maximise profitability has set the groundwork for the industry today. [41] By harnessing the powers of advertising, these companies have encouraged the consumption of cheaper, more convenient, ultra-processed foods, especially to vulnerable groups i.e. children.[42]
Studies have found children under the age of seven are unable to distinguish between advertisements and other means of content[43] and children are characteristically unable to critically understand advertising until 12.[44] Further, watching food-branded video content was shown to cause a higher consumption of unhealthy food and drink for children aged between 10 and 16 years.[45]
In the United States, one-third of children in the US eat fast food every day.[46] Since 2012 spending on fast food advertisements has increased from $400 million to $5 billion resulting in the average child viewing 13 food advertisements daily. [47] Out of the spending of 274 fast-food restaurants in 2021, only McDonald’s allocated more than 1% on ads to promote nutritious meals.[48] Given the largest proportions of ads in 2019 were targeted to pre-schoolers aged 2-5 years and children aged 2-4 years old who have more than 2 hours of screen time are more likely to be obese,[49] the issue is self-prevalent.
The advantage that children are taken of, especially in their developmental years, is also seen in Australia. On average, Australian children between the ages of 5 and 8 see at least 827 TV food advertisements yearly[50] and 15 advertisements for unhealthy food daily (this includes radio, social media and billboard advertising).[51] Given it has been proven children aged 7-12 increase food intake following exposure to unhealthy food marketing,[52] the fact that a Perth study found than more than 31.4% of advertisements around 500m for schools were promoting unhealthy products and 0.7% promoted healthy products, the issue is reinforced.[53] The expense of food advertising is also reflected in Australia with sugary drink advertising alone being 4.9 times the monthly expenditure of public health advertising.[54] Public health advertising expenditure is also 4.6 times less than commercial weight loss advertising.[55]
A Self-Regulatory Government Response
To address this issue from a macro-level, both Australia and the United States have currently adopted a similar self-regulatory approach. However, these mechanisms are evidenced to be largely ineffective.[56]
1 Australia
Australia uses a series of industry bodies to create compliance mechanisms within the advertising space. The general mandatory advertising laws such as the Australian Consumer Law as administered by the Australian Competition and Consumer Commission (ACCC) are applicable in ensuring advertisements are not misleading or deceptive.[57] However, specifically in relation to the advertising of food and beverages to children, the Advertising Standards Bureau who oversee the Australian Association of National Advertisers (AANA) offers regulation. Further, the Australian Food and Grocery Council (AFGC) represents food, beverage and grocery brand representatives and oversees initiatives to constrain advertising.[58]
Australian Association of National Advertisers (AANA) is a community ‘self-regulatory body for advertisers and marketers in Australia’.[59] They produce a series of codes to create a system of transparent and safe advertising. Specifically concerning children, the AANA Code for Advertising and Marketing Communications to Children and the Food and Beverages Advertising Code (Food and Beverages Code) are used. The former has been recently amended with changes to coming into place in December 2023 to be better in line with the latter, the Food and Beverages Code.[60] The latter code prohibits the advertising of Occasional Food or Beverage Products from targeting children.[61] To satisfy the code, the advertisement must not be, at first instance, aimed at children under 15[62] and considers viewership with audiences comprising in 25% or more of children aiding in a finding of the advertisement targeting children.[63] To enforce this mechanism, complaints are reviewed by the Ad Standards Community Panel who considers the nature and intended purpose of the product or service, the presentation of the advertising and expected audience at the time and place the advertising appears.[64]
(a) Effectiveness
However, companies can bypass legislation by indicating that the advertisements are not squarely ‘targeted at children’. As evidenced through Case Number 0207-23 of the Ad Standards Community panel, a complaint was made for an advertisement of Kinda Surprises, being an ‘Occasional food’, as it was aired at 7 pm therefore targeting children. Ferrero (Parent Company) in their response stated that the advertisement depicted a father spending quality time with his son learning about animals meaning the ad was designed to target adults, not children or, appealing to a broad range of ages at least.[65] The case was dismissed.
Further, a 2021 case of Guzman Y Gomez was brought to the panel concerning a Facebook Ad which used a photograph of a young girl holding Guzman y Gomez products as a promotion.[66] Among other more legitimate claims including Facebook being targeted at audiences 15 and older, the company stated ‘Guzman y Gomez products may be appealing to some children, however, would be equally if not more appealing to adults, especially given that a wide range of the Guzman y Gomez menu contains food items are spicy, and spicy foods are more generally enjoyed by adults rather than young children.’[67] This case was too dismissed. Nevertheless, the enforceability of the Ad Standards Community panel is limited with recommendations only being able to be made to remove the advertisement with no other penalties for non-compliance.
Further, the Australian Food and Grocery Council (AFGC) oversees the Responsible Children’s Marketing Initiative (RCMI) and the Quick Service Restaurant Initiative for Responsible Advertising and Marketing to Children (QSRI). These are similarly voluntary opt-in initiatives which regulate food advertising. The largest issues with these self-regulation bodies are that under the RCMI, individual signatories create their own nutrition criteria to adhere to and companies who claim they do not advertise to children do not produce criteria for children.[68] Alternatively, the QSRI has a nutrition standard, however, this is limited to ‘main’ and ‘beverage’ items, not accounting for ‘non-core discretionary foods’ i.e. foods lighter in energy, sugar, fat, sodium and low in micronutrients such as highly processed snacks and foods.[69] To illustrate the ineffectiveness of this mechanism, out of signatories of the QSRI, the top advertiser was McDonald’s with 19% of their advertising being for McDonald’s Happy Meals.[70] This meal as advertised shows three chicken nuggets, apple slices and water aligning with what is considered ‘healthier’ by the QSRI and aligned with their protocol.[71] Overall, it is apparent that industry self-regulation is seen as largely ineffective.[72]
2 United States
The United States has similarly relied on voluntary codes to regulate food advertising targeted at children. The United States food industry established the Children’s Food and Beverage Advertising Initiative (CFBAI) in 2006 which has since been signed by 21 food and beverage companies pledging to improve advertising for children.[73] This is based on a distinct set of uniform nutrition criteria and defines advertising directed at children if viewership is over 35% of the intended audience. [74] The initiative requires companies to make individual pledges to the standards set by the CFBAI which is recorded alongside an implementation schedule and yearly compliance reports.[75] Non-compliance, monitoring of reports and correct administration of the scheme are regulated by the advertising industry body Better Business Bureau (BBB).[76] Independent review of the scheme is undertaken every five years.[77]
(a) Effectiveness
Much like the Australian system, the effectiveness of this scheme is limited for reasons including ‘better-for-you’ foods being defined by the food and beverage companies themselves which allows foods high in sodium and sugar to be advertised without being flagged.[78] The ineffectiveness of this system was affirmed in 2007 seeing 79.4% of food advertising promoting ‘unhealthy products’ (as defined by the Department of Health and Human Services) to children rising to 80.5% by 2013 after the implementation of the regulatory system.[79] Non-compliance also has no tangible consequences.
IV POTENTIAL FOR GOVERNMENT INTERVENTION
The current Australian and United States self-regulatory systems are therefore similar in their ineffective approaches to tackling child-targeted food advertising. As such, this section will compare the Australian and United States’ ability to legislate restrictions on unhealthy food advertising. Restrictions on tobacco advertising will be used as an example of previous advertising restrictions both countries have faced. Though this is a public health crisis in and of itself, understanding how both governments were/can regulate advertising assists by way of analogy and precedent for the current obesity health crisis.
A United States
1 Legal Framework
The United States Bill of Rights guarantees civil rights and liberties including freedom from unjust punishment, right by jury trial, right to bear arms, and freedom of speech amongst others. The extension of free speech from only political speech to “speech proposing a commercial transaction”[80] was confirmed in Virginia State Board of Pharmacy v Virginia Citizens Consumer Council.[81]
Free speech is regulated with either strict scrutiny (political and religious speech), intermediate scrutiny (commercial speech i.e. advertising) or low scrutiny (disclosure and warning labels). With the changing composition of the Supreme Court, case law has indicated a stricter adherence to the doctrine of free speech at the cost of public health outcomes.[82] That is, commercial free speech is now being enforced closer to strict scrutiny.[83] This means the government is now unable to ‘restrict non-deceptive commercial speech about products legally for sale in the marketplace’.[84] This has been emphasised since 2010 with corporations have been provided with equal political free speech as individuals.[85]
To legislate government restriction of advertising, the Central Hudson[86] four-pronged test must be satisfied. That is: 1. The expression (advertisement) is not false, deceptive, or misleading; 2. The government asserts a substantial interest to be achieved by restricting commercial speech 3. The regulation directly advances this interest and 4. the restriction is not more extensive than necessary to serve this interest.[87] This test, at the time of writing, has not been applied to food advertisements to children. However, the fundamental principle of the United States government is that they “hav[e] no power to restrict expression because of its message, its ideas, its subject matter, or its content”[88] ultimately championing the need for product information and individual rational decision making in the advertising space.[89]
2 Tobacco Advertising
In relation to tobacco advertising, the Supreme Court found, in Lorillard v Reilley[90], that tobacco advertisements could not be forbidden within 1000 feet of schools as ‘adults have an... interest in receiving truthful information about tobacco products’.[91] This was despite the State having ‘substantial’ and even ‘compelling’ interests to prevent tobacco use.[92] Justice Thomas emphasised his position in Rubin v Coors Brewing[93] where upholding the integrity of free speech was said to be imperative offering that States should instead find alternatives to ‘advanc[e] its interest that do not require limiting speech at all’.[94] This has since been confirmed in cases brought in 2011[95] and 2020.[96] Therefore, satisfying all four elements of the Central Hudson test are difficult given advertisements provide information that is truthful and alternative mechanisms to advance the governments agenda exist.[97]
Despite the argument being made that vulnerability is being profited upon, the court especially emphasised there is no ‘vice’ exception in the context of alcohol advertising however also applies to tobacco and prescription medication.[98] Though not litigated, this could therefore apply to the regulation of unhealthy food advertising of children.
Since these decisions, disclosure requirements have also seen a stricter interpretation, departing from their leading case, Zauderer.[99] This case introduced the test of ‘reasonable basis’s’ where disclosure and warning would need to be factually correct and uncontroversial.[100] The use of graphic labelling to warn against tobacco use was brought in as a part of the introduction of the Tobacco Control Act 2009 with the Obama administration.[101] However, the use of graphic labelling was found to be unconstitutional as they ‘do not convey any warning information at all’[102] and instead allow the government to make ‘every single pack of cigarettes in the country a mini billboard for the government’s anti-smoking message’.[103] This notion was further reiterated in 2019 where San Francisco’s requirement to ensure billboard advertisements of sugary beverages contain a warning that “Drinking Beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco” on 20% of their advertisement was challenged.[104] This was found to be unconstitutional as it encroached on First Amendment rights being overly burdensome, “drown[ing] out” the message of the advertiser.[105]
This is not to say the United States has no regulation on their advertising of tobacco products[106] or advertising at large. However, the ability of the United States government to dissuade the use and consumption of harmful products is generally rare.[107] This is due to the strength of the First Amendment in the United States, in addition to the litigious nature of the country[108] sending a seminal message and negative precedent for the potential to regulate advertising.
B Australia
1 Legal Framework
Unlike the United States, Australia does not explicitly recognise the freedom of speech or expression in its constitution or in a Bill of Rights. Freedom of speech is instead characterised as a ‘fundamental value protected by common law’[109] and primarily reflected in the ratification of the United Nations International Covenant on Civil and Political Rights. Article 19(2) of the ICCPR states ‘Everyone shall have the right to freedom of expression...in writing or in print,... or through any other media of his choice’. This right is, though, limited by Article 19(3)(b) of the ICCPR where restriction can be enforced ‘for the protection of ... public health or morals’.
In 2012, the Minister for Health of Australia was steadfast in the Australian government’s position to ensure the protection of public health at the cost of free speech despite an argument being made that restricting advertising could ‘engage the right to freedom of expression as it regulates advertising content’.[110] The right to inform consumers has also been raised as an argument against the Australian government’s position. However, it has been stated that, in reference to tobacco advertisements, the advertisements themselves do not provide consumers with important information to weigh their decisions on and instead merely provide the brand name.[111] Therefore, a precedent for strict action to be taken by the federal government in legislating improvements for health outcomes without encroaching on the freedom of speech in Australia has been set.
2 Tobacco Advertising
It is for this reason that the initial Tobacco Advertising Prohibition Act 1992 and the later Tobacco Advertising Prohibition Regulation 2012 (Cth) (amongst others) have been introduced without encroaching on freedom of speech. These Acts strictly banned advertising which encourages smoking and tobacco products in the forms of writing, still or moving pictures, signs, symbols or other visual image, or any audible messages including on the internet and electronic media.[112]
The effectiveness of these mechanisms was seen in a 2002-2008 study between Australia, Canada, the UK and the US. This study saw Australians having a general the lowest awareness of Tobacco marketing in comparison to the three other countries due to the strong marketing regulations which were implemented in 1992.[113] In 2019 it was found that comprehensive advertising bans reduced instances of smoking initiation by 6% and smoking prevalence by 4%.[114] However, as the purpose of ads are reinforced as are used to ‘de-normalising’ tobacco products[115] and therefore stigmatising smoking at large, the ads are considered to have been largely effective.[116]
3 Ongoing Change
As such, the ability of the Australian government to regulate advertising is evidenced. This has been reflected in the tabling of the Healthy Kids Advertising Bill 2023 by Dr Sophie Scamps, a Private Parliament Member who has begun to tackle the lack of legislation in the field. This bill works as an amendment to the Broadcasting Services Amendment Act (Together: Broadcasting Services Amendment (Healthy Kids Advertising) Bill 2023). Introduced in June 2023, this Bill is a response to Australia’s high obesity rates, and rates children are exposed to high volumes of unhealthy food marketing creating increased preferences for these foods.[117] Practically, the Healthy Kids Advertising Bill works to restrict the broadcasting of ‘unhealthy food’ content between 6 am and 9.30 pm with unhealthy food being defined as ‘food and drink not recommended for promotion to children in the 2018 guide published by the Health Council of COAG’.[118] It also proposes harsh penalties for non-compliance including maximum penalties of 2,000 penalty units (currently $550,000) or 5% of annual turnover over a 12-month period (whichever is larger) for body corporates or 400 penalty units (currently $110,000) for non-body corporates.[119]
Unfortunately, as of the 13th of February 2024, the Bill was removed from the Notice Paper and is no longer proceeding.[120] This was done in accordance with standing order 42 which sees the removal of private Member’s proposals following them not being called on for eight weeks.[121] As such, at the time of writing Australia will not align itself with 40 countries including the UK to limit the broadcasting of ‘unhealthy foods’,[122] though a future of regulating similarly is still possible.
V RECOMMENDATIONS
At a federal level, the systems Australia have in place are more recent and fast-changing in comparison to the United States. Given the ineffectiveness of both country’s current systems in curbing the epidemic, the need for reform is significant. That is, the broad measures which are used to target the obesity epidemic at large have no sizeable impact and the self-regulatory systems lack enforceability. To reduce children’s exposure to unhealthy food marketing, it has been found that a mixture of co-regulatory reforms and statutory restrictions is more effective than self-regulation alone.[123] With the goal of reducing children’s exposure to unhealthy food advertising, the government’s role in regulating advertising is important.
A Australia
Australia’s lack of legislation to restrict the advertising of unhealthy food generally, or more specifically advertising targeted at children, is a result of inaction or a lack of recognition of the importance of the issue itself. This was seen in the lack of progression of the proposed Healthy Kids Advertising Bill. However, the Healthy Kids Advertising Bill itself, though effective to an extent, fails to address the significant quantity of advertising which occurs across digital and social media. As partial advertising shifts marketing to unregulated media,[124] in line with recommendations from the leading researchers, and academic, medical and public health groups in the field, this legislation would need to apply to all forms of media including digital, and impact all forms of advertising, promotion and marketing.[125] Therefore, in accordance with United Kingdom’s 2017 amendments to their broadcasting restrictions of discretionary foods, a restriction advertising in non-broadcast media where more than 25% of the audience is children under the age of 16 years would be a more effective approach.[126] It is important to emphasise that this is not a fix-all approach as it has been shown that these regulations do not completely reduce children’s exposure to unhealthy food advertising,[127] however to reduce exposure to unhealthy food advertising, this would be a positive step.
B United States
Unlike Australia, the United States in its strict upholding of its Bill of Rights, specifically its freedom of speech, is a major impediment in taking a similar approach to regulating food advertising. As such, it would be remiss to arbitrarily recommend a similar approach to be taken. Thus, in line with Justice Thomas’ encouragement to look for other means to protect this public health crisis without encroaching on the freedom of public corporations’ speech, the government could echo the FDA’s Tobacco Control Act 2009. Though this was considered largely as a failure,[128] enforced the prohibition of tobacco brands sponsoring sports and entertainment events was seen as a positive restriction on advertising.[129] By a similar approach, these mechanisms could effectively reduce the exposure children have to unhealthy food advertisements. Further, by imposing the threat of government intervention for non-compliance with voluntary codes, compliance could be better imposed and adherence increasingly enforced.[130] This could change the nature of advertising, reducing children’s exposure to unhealthy ads.
C Joint Recommendation
An alternate mean that the Australian and United States governments could use is on public transportation, in public schools and public office buildings to attempt to restrict the consumption of unhealthy products through educational advertising campaigns.[131] The Australian government’s last national tobacco campaign in 1997, cost $9 million though prevented 55,000 deaths and had economic savings of $740 million.[132] In the US, though in 1967 the Federal Trade Commission (FTC) stated it was “impossible for Americans of almost any age to avoid cigarette advertising”,[133]the 1964 Surgeon General’s report brought in better regulations resulting from large media attention received. This saw the implementation of anti-smoking ads to run for every cigarette ad that aired which assisted in the stigmatisation of smoking and alteration of public perception.[134] Therefore, as a means of reducing children’s exposure to unhealthy food advertising education this is an alternative mechanism. However, the advertising space in 2023 is extraordinarily different than that of 1997 with digital and social media being abundantly prevalent therefore the efficacy, cost and availability for the government to tailor a campaign to this scale may be limited.
VI CONCLUSION
Ultimately, the regulation of unhealthy food advertising to children is only one of the various factors which contribute to the obesity epidemic. The role of the government in restricting advertising is not a holistic quick-fix mechanism for the rising rates of obesity and the ongoing costs which result from it.
This paper found the self-regulatory systems which are currently in place in both the United States and Australia are insufficient in effectively targeting the rise in unhealthy food advertising aimed at children. As such, reform is needed. This paper was used to ascertain if Australia or the United States can regulate unhealthy food advertising being targeted at children and if not, why. As a result of the United States First Amendment right, regulating advertising targeted at children based purely on poor public health outcomes given the advertisement is truthful, is difficult. Therefore, the United States’ adoption of alternative mechanisms could be the most effective mechanism to reduce children’s exposure to unhealthy food advertising. Instead, the position of the United States can be used as a signal of the dangers of stringent protection of civil freedom at the cost of public health.
Conversely, Australia’s inaction and complacency can be viewed as inexcusable given the mounting evidence on the impact of advertising contributing to poor health outcomes of children and the ratification of the ICCPR. Therefore, again, in conjunction with other means, to reduce the proliferation of advertisements of unhealthy food products to children, better legislative intervention can and should be implemented.
[1] Rohana N Haththotuwa et al., ‘Worldwide Epidemic of Obesity’ in Tahir A. Mohmood et al. (ed) Obesity and Obstetrics (Elsevier, 2020) 3-8.
[2] ‘Most Obese Countries 2023’ World Population Review (Web Page) <https://worldpopulationreview.com/country-rankings/most-obese-countries>.
[3] ‘Adult Obesity Facts’ Centers for Disease Control and Prevention (Web Page) <https://www.cdc.gov/obesity/data/adult.html>.
[4] ‘Obesity Rate Depends on Where you Live’ Victoria University (Web Page) <https://www.vu.edu.au/mitchell-institute/australian-health-tracker-series/obesity-rate-depends-on-where-you-live>.
[5] ‘Most Obese Countries 2023’ World Population Review (Web Page) <https://worldpopulationreview.com/country-rankings/most-obese-countries>.
[7] Belinda Reeve and Roger Magnusson, ‘Regulation of Food Advertising to Children in Six Jurisdictions: A Framework for Analysing and Improving the Performance of Regulatory Instruments (2018) 35(1) Arizona Journal of International & Comparative Law 72, 74.
[8] Ibid.
[9] ‘Obesity and Overweight’, World Health Organisation (Web Page) <https://www.who.int/news-room/fact-sheets/detail/obesity-and-overweight>.
[10] Hannah Ritchie and Max Roser ‘Obesity’ Our World in Data (Blog Post, 2017) <https://ourworldindata.org/obesity#what-share-of-adults-are-obese>.
[11] Ibid.
[12] ‘Adult Obesity’ Harvard T.H. Chan School of Public Health (Web Page) referencing T Kelly et. Al., ‘Global Burden of Obesity in 2005 and Projections to 2030’ (2008) 32 International Journal of Obesity (London) 1431 <https://www.hsph.harvard.edu/obesity-prevention-source/obesity-trends-original/obesity-rates-worldwide/#References>.
[13] Drew Desilver ‘As Obesity Rates Rise in the U.S. and Worldwide, New Weight-Loss Drugs Surge in Popularity’ Pew Research Center (Article, 21 March 2024) < https://www.pewresearch.org/short-reads/2024/03/21/as-obesity-rates-rise-in-the-us-and-worldwide-new-weight-loss-drugs-surge-in-popularity/>.
[14] ‘State of Obesity 2022: Better Policies for a Healthier America’ Trust for America’s Health (Fact Sheet, 2022) <https://www.tfah.org/report-details/state-of-obesity-2022/>.
[15] ‘CDC’s Division of Nutrition, Physical Activity, and Obesity’ CDC (Fact Sheet, July 2022) < https://www.cdc.gov/nccdphp/dnpao/docs/Obesity-Fact-Sheet-508.pdf>.
[16] Ibid.
[17] Ibid.
[18] ‘Obesity and the Federal Government’s Role in Combating the Epidemic’ Women’s Congressional Policy Institute (Web Page) <Obesity and the Federal Government’s Role in Combating the Epidemic - Women's Congressional Policy Institute (wcpinst.org)>.
[19] ‘Waist Circumference and BMI’ Australian Bureau of Statistics (Web Page) < https://www.abs.gov.au/statistics/health/health-conditions-and-risks/waist-circumference-and-bmi/latest-release#:~:text=Over%20the%20last%20decade%2C%20the,31.7%25%20over%20the%20same%20period.>.
[20] Ibid.
[21] Ibid.
[22] Health ministers Meeting, ‘National Obesity Strategy 2022-2032: At a Glance’ (Commonwealth of Australia).
[23] ‘Overweight and Obesity’ Australian Institute of Health and Welfare (Web Report, 19 May 2023) <Overweight and obesity, Summary - Australian Institute of Health and Welfare (aihw.gov.au)>.
[24] Theodore K Kyle et al., ‘Regarding Obesity as a Disease: Evolving Policies and Their Implications’ (2016) 45(3) Endocrinol Metab Clin North Am 511, 511.
[25] Alex Chung et al, ‘The Commercial Determinants of Unhealthy Diets’ (2002) 32(3) Public Health Research & Practice 2.
[26] John P H Wilding et al., ‘Should Obesity be recognised as a disease’, (2019) The BMJ Online 366:1-3, 1.
[27] Scott Kahan and Tracy Zvenyach, ‘Obesity and Government’ (2016) 23(5) Current Opinion in Endocrinology, Diabetes and Obesity 360, 362.
[28] ‘Child Nutrition Reauthorization Healthy, Hunger-Free Kids Act Of 2010’ Lets Move, (Information Sheet, 2010) < https://obamawhitehouse.archives.gov/sites/default/files/Child_Nutrition_Fact_Sheet_12_10_10.pdf>.
[29] Ibid.
[30] Ashlie Chandler, ‘Obama-Era School Nutrition Policy Led To Better Diets For Students But Faces Changes’ Washington School of Public Health (Blog Post 28th July 2020) < https://sph.washington.edu/news-events/news/obama-era-school-nutrition-policy-led-better-diets-students-faces-changes>.
[31] Ibid.
[32] ‘Obesity and the Federal Government’s Role in Combating the Epidemic’ Women’s Congressional Policy Institute (Web Page, 4 October 2023) < https://www.wcpinst.org/source/obesity-and-the-federal-governments-role-in-combating-the-epidemic/#:~:text=Play%20Hard%20initiative%2C%20which%20focuses,prepare%20healthier%20meals%3B%20the%20Fit>.
[33] Roundtable on Obesity Solutions; Food and Nutrition Board, Institute of Medicine. Washington (DC) (National Academies Press (US), 2014).
[34] Chung (n 25) 2.
[35] National Obesity Strategy 2022-2032 (Final Report, 2022).
[36] Ibid.
[37] Chung (n 25) 2
[38] National Obesity Strategy (n 35) 79.
[39] Ibid.
[40] Fred Charatan ‘Fat Land: How Americans Became the Fattest People in the World’ (2004) Journal of Clinical Investigation (2004) 113(1) 2,1 referencing Philip Baker and Sharon Friel ‘Food Systems Transformations, Ultra-Processed Food Markets and the Nutrition Transition in Asia’ (2016) 12(80 Globalization and Health 1-15.
[41] Ibid 1.
[42] Rachel Smith et al, ‘Food Marketing Influences Children’s Attitudes, Preferences and Consumption: A Systematic Critical Review’ (2019) 11(4) Nutrients 875, 876.
[43] Reeve and Magnusson (n 7) 74 citing Sonia Livingstone & Ellen Helsper, ‘Advertising Foods to Children: Understanding Promotion in the Context of Childrens Daily Lives’ (2004) 1(2) Department of Media & Communication.
[44] Reeve and Magnusson (n 7) 74.
[45] Heather J Baldwin et al. ‘Like and Share: Associations Between Social Media Engagement and Dietary Choices in Children’ (2018) 21(17) 3210, 3215.
[46] Cheryl D Fryar et al., ‘Fast Food Intake Among Children and Adolescents in the United States 2015-2018’ [2020] 375 NCHS Data Brief, National Center for Health Statistics 1-7, 1.
[47] Jennifer L Harris et al., ‘Fast Food Advertising: Billions in Spending, Continued High Exposure by Youth’ (2021) UCONN Rudd Center for Food Policy & Obesity 1-72, 7.
[48] Ibid 7.
[49] Ibid 18-19.
[50] ‘Impact of Unhealthy Food Marketing on Children’ Obesity Evidence Hub (Web Page) < https://www.obesityevidencehub.org.au/collections/prevention/the-impact-of-food-marketing-on-children#:~:text=The%20highest%20proportion%20of%20advertisements,with%20the%20lowest%20socioeconomic%20status.&text=Food%20marketing%20takes%20advantage%20of%20the%20developmental%20vulnerabilities%20of%20children%20and%20adolescents> referencing Lisa G Smithers et al. ‘Food Advertising On Australian Television: Frequency, Duration and Monthly Pattern of Advertising from a Commercial Network (Four Channels) for the Entire 2016’ (2018) 54(9) Journal of Paediatric Children’s Health 962.
[51] Commonwealth Parliament of Australia, Second Reading Speech, House of Representatives, 19 June 2023, 4615 (Dr Sophie Scamps).
[52] Impact of Unhealthy Food Marketing on Children’ (n 50) referencing Jennifer Norman et al. ‘Sustained Impact of Energy-Dense TV and Online Food Advertising on Children's Dietary Intake: A Within-Subject, Randomised, Crossover, Counter-Balanced Trial’ (2018) 15(1) International Journal of Behavioral Nutrition and Physical Activity 37.
[53] Alexandra Chung et al. ‘Policies to Restrict Unhealthy Food and Beverage Advertising in Outdoor Spaces and on Publicly Owned Assets: A Scoping Review of the Literature’ (2021) 23(2) Obesity Reviews 1, 5.
[54] Ashleigh Haynes et al., ‘Obesity Prevention and Related Public Health Advertising versus Competing Commercial Advertising Expenditure in Australia’ (2022) 37(6) Health Promotion International, 1, 5.
[55] Ibid.
[56] Reeve and Magnusson (n 7) 87
[57] Competition and Consumer Act 2010 (Cth) sch 2 s18(1).
[58] Emma Sainsbury et al, ‘An audit of food and beverage advertising on the Sydney metropolitan train network: regulation and policy implications’ (2017) BMC Public Health 17 490, 493.
[59] ‘About’ AANA (Web Page) <https://aana.com.au>.
[60] AANA, ‘AANA Strengthens Children’s Advertising Code’ (Media Release, 17 August 2023).
[61] AANA Food and Beverage Code Australia (2021) s 3.1.
[62] ‘Case Number 0152-23’ Ad Standards Community Panel (Case Report, 2023) <https://adstandards.com.au/wp-content/uploads/2023/08/0152-23.pdf>.
[63] AANA, Practice Note: Children’s Advertising Code, December 2023.
[64] Ibid.
[65] ‘Case Number 0207-23’ Ad Standards Community Panel (Case Report, 2023) <https://adstandards.com.au/wp-content/uploads/2023/10/0207-23.pdf> .
[66] ‘Case Number 0152-23’ Ad Standards Community Panel (Case Report, 2023) <https://adstandards.com.au/wp-content/uploads/2023/08/0152-23.pdf>.
[67] Ibid.
[68] Sainsbury (n 58) 499.
[69] Wendy L Watson et al., ‘Advertising to Children Initiatives have not Reduced Unhealthy Food Advertising on Australian Television’ (2017) 39(4) Journal of Public Health (Oxford) 787-792, 788.
[70] Ibid 790.
[71] Ibid.
[72] Kathryn Backholer et al. ‘Differential exposure to, and potential impact of, unhealthy advertising to Children by Socio-Economic and Ethnic Groups: A Systematic Review of the Evidence’ (2022) 22(1) Obesity Reviews 1, 18 referencing Watson (n 69).
[73] ‘Children’s Food and Beverage Advertising Initiative’ BBB National Programs (Web Page) <https://bbbprograms.org/programs/all-programs/cfbai>.
[74] Ibid.
[75] Ibid.
[76] Ibid.
[77] Ibid.
[78] Reeve and Magnusson (n 7) 103.
[79] Ibid 87.
[80] Jennifer Harris and Samantha Graff, ‘Protecting Young People From Junk Food Advertising: Implications of Psychological Research for First Amendment Law’ (2012) 102(2) Am J Public Health 214, 215.
[81] Virginia State Board of Pharmacy v Virginia Citizens Consumer Council, Inc. [1976] USSC 90; 425 U.S. 748 (1976).
[82] Jennifer L. Pomeranz, ‘United States: Protecting Commercial Speech Under the First Amendment’ [2022] (Summer) The Journal of Law, Medicine & Ethics 265, 266.
[83] Ibid 268.
[84] Ibid.
[85] Citizens United v FEC, 558 U.S. 310 (2010).
[86] Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y.[1980] USSC 127; , 447 U.S. 557 (1980).
[87] Ibid 447.
[88] Police Dep’t of Chi. v. Mosley, [1972] USSC 165; 408 U.S. 92, 95 (1972) referencing W. Va. State Bd. of Educ. v. Barnette, [1943] USSC 130; 319 U.S. 624, 642 (1943).
[89] Harris and Graff (n 80) 215.
[90] Lorillard v Reilly, [2001] USSC 61; 533 U.S. 525 (2001).
[91] Harris and Graff (n 80) 216.
[92] Pomeranz (n 82) quoting Lorillard v Reilly, [2001] USSC 61; 533 U.S. 525, 564 (2001).
[93] Rubin v. Coors Brewing, [1995] USSC 37; 514 U.S. 476 (1995).
[94] Ibid 486.
[95] Pomeranz (n 82) 269 referencing Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).
[96] Ibid referencing Barr v. Am. Ass’n of Political Consultants, 140 S. Ct. 2335 (2020).
[97] Ibid 268.
[98] 44 Liquormart v. R.I., [1996] USSC 37; 517 U.S. 484, 514 (1996).
[99] Zauderer v. Office of Disciplinary Counsel, [1985] USSC 137; 471 U.S. 626 (1985).
[100] Pomeranz (n 82) 269 quoting Zauderer v. Office of Disciplinary Counsel, [1985] USSC 137; 471 U.S. 626 (1985).
[101] Lawrence R. Deyton ‘FDA Tobacco Product Regulations: A Powerful Tool for Tobacco Control’ (2011) 126(6) Public Health Reports 167, 167.
[102] Pomeranz (n 82) 269 quoting R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1216 (D.C. Cir. 2012).
[103] Ibid quoting R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 2012 (D.C. Cir. 2012).
[104] Pomeranz (n 82) 272, quoting Am. Bev. Ass’n v. City & Cty. of San Francisco, 916 F.3d 749 (9th Cir. 2019).
[105] Ibid 757.
[106] See, eg, Family Smoking Prevention and Tobacco Control Act of 2009.
[107] Pomeranz (n 82) 272.
[108] Desmond Jensen, ‘Success from Failure: US Federal Commercial Tobacco Regulation’ 2022 Tobacco Control 21 212, 213.
[109] Nationwide News v Wills [1992] HCA 46; (1992) 177 CLR 1, 31.
[110] Australian Law Reform Commission, Laws that Interfere with Freedom of Speech (Report No 127, July 2015) 3.149-3.150.
[111] Elizabeth Greenhalgh (ed) et al., Tobacco in Australia: Facts and Issues (Cancer Council Victoria, 4th rev ed, 2012), chapter 11.1.
[112] Tobacco Advertising Prohibition Act 1992 (Cth) s 9.
[113] Lin Li et al., ‘The Association Between Exposure to Point-Of-Sale Anti-Smoking Warnings and Smokers’ Interest in Quitting and Quit Attempts: Findings From the International Tobacco Control Four Country Survey’ (2012) 107(2) Addiction 425, 426.
[114] David T Levy et al., ‘The Effects Of Tobacco Control Policies On Smoking Rates: A Tobacco Control Scorecard’ (2004) 10(4) Journal Pub Health Management & Practice 338, 342.
[115] Greenhalgh (n 111) 11.1.
[116] Levy (n 114) 342.
[117] Broadcasting Services Amendment (Healthy Kids Advertising) Bill 2023, Outline.
[119] Ibid s 205F(5B).
[120] ‘Broadcasting Services Amendment (Healthy Kids Advertising) Bill 2023’, Parliament of Australia (Website) <https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7047>.
[121] ‘Notice’, Parliament of Australia (Website) <https://www.aph.gov.au/About%20Parliament/House%20of%20Representatives/Powers%20practice%20and%20procedure/Practice7/HTML/Chapter9/7chap09_1_2.html#_ftnref26>.
[122] Commonwealth Parliament of Australia, Second Reading Speech, House of Representatives, 19 June 2023, 4615 (Dr Scamps).
[123] Reeve and Magnusson (n 7) 88 referencing Stephanie A. Chambers et al. ‘Reducing the Volume, Exposure and Negative Impacts of Advertising for Foods High in Fat, Sugar and Salt to Children: A Systematic Review of the Evidence From Statutory and Self-Regulatory Actions and Educations Measures’ (2015) 75 Preventative Medicine 32, 41.
[124] ‘Policies to Reduce Children’s Exposure to Unhealthy Food Marketing’, Obesity Evidence Hub (Web Page) <https://www.obesityevidencehub.org.au/collections/prevention/the-way-forward-policies-to-reduce-childrens-exposure-to-junk-food-advertising#cite895>.
[125] Ibid referencing ‘Obesity Policy Coalition. Overbranded, Under Protected - How Industry Self-Regulation is Failing to Protect Children From Unhealthy Food Marketing’ Food for Health Alliance (Web Page) <https://www.foodforhealthalliance.org.au/>.
[126] Reeve and Magnusson (n 7) 107.
[127] Ibid 87.
[128] Jensen (n 108) 213.
[129] Israel T Agaku et al. ‘Tobacco Advertising and Promotional Expenditures in Sports and Sporting Events — United States, 1992–2013’ (2016) 65(32) Morbidity and Mortality Weekly Report 821, 821.
[130] Reeve and Magnusson (n 7) 129.
[131] Pomeranz (n 82) 272.
[132] Cancer Council, New Report Highlights the $137 Billion Cost of Smoking, (Media Release, 22 October 2019).
[133] K Michael Cummings and Robert N Proctor, ‘The Changing Public Image of Smoking in the United States: 1964-2014’ (2014) 23(1) 32 quoting Morris Philip, Human Smoking Behaviour. Retrieved September 17, 2009, from Legacy Tobacco Documents Library.
[134] Ibid referencing K E Warner, ‘Effects of the antismoking campaign: an update.’ (1989) 79(2) American Journal of Public Health 144.
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