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'Audiovisual Media Services Directive' and protection of minors from junk food marketing

Audiovisual media services are formidable tools for promoting junk food consumption by minors, but the Audiovisual Media Services Directive is still unable to reduce their exposure to the aggressive marketing of 'HFSS (High in Fats, Sodium and Sugars') foods'. Scenario analysis and brief reflections.

1) Protection of minors from aggressive marketing of junk food. The needs

The minors – and children in particular – are the category most vulnerable to the influence of audiovisual media services on their food choices. A direct influence on minors and adolescents, and an indirect influence on parents' decisions.

Aggressive marketing of junk food ('HFSS foods') towards minors has been stigmatized by UNICEF and WHO since 2020, as a cause of unhealthy diets, obesity, overweight and related diseases (NCDs, Non-Communicable Diseases. See notes 1,2, XNUMX).

WHO Europe in turn intervened on the topic in 2022 to urge the states of the European macro-region to intervene with specific restrictive regulations. (3)

2) Audiovisual Media Services Directive, AVMSD

Audiovisual Media Services Directive No 2010/13/EU (AVMSD) applies to:

– services which, via electronic communications networks, pursue the main objective of providing audiovisual programs to the general public, under the editorial responsibility of a provider – in order to inform, entertain or educate – through

– television broadcasts (for simultaneous viewing of programmes, based on a schedule), or audiovisual media services at the user's request (based on the program catalogs offered by the supplier), as well as

– audiovisual commercial communication.

The programs' they consist of series of animated images, with or without sound, which form individual elements within the program schedule or catalogue. This includes feature films, fiction, video clips, sports events, sitcoms, children's programs, etc. (4)

3) AVMSD and protection of minors from HFSS foods' marketing

The European Parliament, in the previous legislature, had requested the Commission to reform the 'Audiovisual Media Services Directive' to introduce restrictions on the marketing of junk food and alcoholic drinks (6,7).

Directive (EU) 2018/1808, the latest reform of the AVMSD, has in fact indicated as inappropriate, among others, the 'references relating to food or drink products containing nutrients and substances with a nutritional or physiological effect, in particular those such as fats, trans fatty acids, sugars, sodium or salt, the excessive intake of which in the general diet is not registered mail', in audiovisual programs aimed at children. (8)

The responsability to develop codes of conduct on audiovisual commercial communication has also been left to the service and media suppliers themselves, in the name of the 'soft legislation' referred to below.

3.1) 'Co-regulation' and 'self-regulation'

The reform of the AVMSD calls for 'co-regulation' and 'self-regulation', through codes of conduct which should ban inappropriate audiovisual commercial communication in children's programmes.

The norms they also apply, at least in theory, to 'video sharing platform providers' referred to in the E-commerce Directive 2000/31/EC. (8)

The minors they should therefore be protected – at least in theory – from user-generated programs, files and videos, as well as from audiovisual commercial communications that may harm their physical, mental and moral development. (9)

3.2) ERGA, 'European Regulators Group for Audiovisual Media Services'

ERGA – 'European Regulators Group for Audiovisual Media Services' – was established in 2014 by the European Commission, to provide technical support for the correct implementation of the AVSMD and the issuing of opinions (on request) in this regard. (10)

The ERGA Group should therefore provide technical advice – upon request – regarding the
contents and methods of audiovisual commercial communication also in relation to food products with a high content of fat, salt and sodium, sugars. (11)

3.3) Inclusion of 'online video sharing' and 'social media'

The platforms of 'online video sharing' and 'social media' - increasingly widespread, especially among young users - compete with traditional audiovisual services and media, in terms of 'audience' and turnover. These services must therefore also be subject to the rules established in the latest AVSMD reform. (12)

Such means they are capable of influencing the thoughts and actions of the most vulnerable users, such as minors who must therefore be protected from harmful content. The European Commission has therefore published a guidance document on the application of the AVMSD in this area. (13)

3.4) Interaction with other regulations

The comunication commercial audiovisual industry is in any case also subject to other systems of rules, such as:

  • Nutrition and Health Claims Regulation No 1924/2006 (NHCR), whenever the commercial communication suggests (even implicitly) nutritional or health properties of foods,
  • Unfair Commercial Practices Directive 2005/29/EC, as reformed by Omnibus Directive (EU) No 2019/2161. AVSMD clarifies the possibility of using the sanctions established therein also to punish misleading and aggressive practices used in the audiovisual media, (14)
  • 'food frauds', punished variously with criminal and administrative sanctions in the various Member States.

3.5) AVMSD, the failure

The European Commission, in its report (2021) on the implementation of the 'Audiovisual Media Service Directive' in the period 2014-2019, recognized that the results are unsatisfactory. At least half of the Member States had not applied any 'co-regulation' or 'self-regulation' scheme and the rare initiatives in this sense were mainly promoted by private organizations rather than authorities. (15)

The failure of the AVMSD in protecting minors from the aggressive marketing of junk food was then highlighted in a question from the European Parliament to the Commission (E-001798/2022). (16) The 'soft legislation' has served no purpose. MEPs therefore called on DG Sante to assume its responsibilities and follow up on its commitments in this regard in the 'farm to fork' strategy and in the SCHOLARSHIP (Beating Cancer Plan).

4) EPHA, proposed directive for the protection of children from junk food marketing

EPHA extension (European Public Health Alliance), with the support of over 20 NGOs and research bodies, had already proposed the adoption of a directive in 2021 aimed at protecting children from the marketing of nutritionally unbalanced foods. (17) The first authors of this initiative – Professor Amandine Garde (University of Liverpool, UK) and Doctors Marine Friant-Perrot (Université de Nantes, F), Mimi Tatlow-Golden (The Open University, UK) – had asked to follow up on the 'EU Strategy on the Rights of The Child 2021-2024' (18) by defining, among other things, some minimum requirements:

– exclusion of advertising of 'HFSS foods' between 6:00 am and 23:00 pm on television media,

– stop the sponsorship of sporting events by food 'brands' (e.g. Coca-Cola),

– call for audiovisual commercial communication of 'HFSS foods' on digital media,

– ban on 'marketing to kids', including on food packaging, with references to influencers or comic book characters, etc.

5) Nutritional profiles, the great absentee

The classification of foods on the basis of their nutritional profiles - in line with the 'WHO Regional Office for Europe nutrient profile model' (19) - is the indispensable prerequisite for a regulation of audiovisual commercial communication consistent with the protection needs of children.

The F.1 unit of the Joint Research Centre (JRC) has developed a specific toolkit, to support Member States in updating policies relating to food marketing, with a view to the application of the AVMSD, and develop specific codes of conduct, checklists and provide guidance through practical examples. Guidelines of a similar nature have also been developed by the WHO, also in collaboration with UNICEF (20,21,22).

JRC has collected all the codes on the marketing of food and drinks (alcoholic and non-alcoholic) intended for children and adolescents. All the policies developed by some Member States and non-EU countries were also collected, based on the World Cancer Research Fund (WCRF) NOURISHING Framework results, and other sources (23,24).

6) European research projects

The EU research project 'Best-ReMaP' – in addition to contributing to the management of the FABLE database, as we have seen, (25) – it offers a basis for the development of good practices relating to the marketing of foods and drinks aimed at children and adolescents.
Maria João Gregório – head of the working group dedicated to 'marketing best practices' in the Best-ReMaP project, as well as of the 'Programa Nacional para a Promoção da Alimentação Saudável' (PNPAS, Portugal) – explains how the results of the project and various other studies demonstrate the actual possibility of significantly reducing the risk of cancer onset for minors and the general population. (26)

'Best-ReMaP' has already developed some useful results to limit the marketing of unhealthy foods, while other activities are still in progress. They are based on the expertise of the project partners and the most relevant guidelines in this area. Activities include:

– the development of a harmonized EU nutritional profile model,

– a guide to the 'code of conduct',

– guide for monitoring the marketing of unhealthy foods to children,

– definition of common rules for marketing restrictions,

– drafting of a harmonized protocol for monitoring the marketing of unhealthy foods for children. (27)

7) Provisional conclusions

Audiovisual commercial communication on foods with unbalanced nutritional profiles constitutes a significant risk factor for obesity, overweight and related diseases, especially among children and adolescents. Codes of conduct are a potentially useful tool, pending a reform of the AVMSD whose proposal will however have to await the next legislature and a lively political debate, held against the enormous economic interests at stake.

The effectiveness of 'codes of conduct' in the meantime it can be improved using the various toolkits developed at European and international level. To this end it will be necessary to introduce:

a) a system of classification of foods and drinks on the basis of their nutritional profiles, also paying attention to the role of ultra-processed foods in the diet of populations, (28)

b) a database containing updated information on the characteristics of food products (i.e. nutritional declarations, list of ingredients) available on the European market (offline and online), as an evolution of FABLE, (25)

c) AI software for monitoring advertising, even hidden, of 'HFSS food' in audiovisual media services, social media and video sharing platforms that fall within the scope of the AVMSD. (29)

The adoption of a blockchain system for the validation of the data on the products included in the database referred to in the previous letter 'b' could better guarantee their level of reliability over time, also taking into account the frequent reformulation of foods.

Dario Dongo and Andrea Adelmo Della Penna

Footnotes

(1) Sabrina Bergamini, Dario Dongo. Climate, predatory marketing and children's health. Unicef ​​report. GIFT (Great Italian Food Trade). 21.2.20

(2) Sabrina Bergamini. Food marketing promotes unhealthy diets for children and teens. WHO report. GIFT (Great Italian Food Trade). 28.2.22/XNUMX/XNUMX

(3) Sabrina Bergamini, Dario Dongo. Obesity, childhood obesity and marketing. WHO Europe 2022 report. GIFT (Great Italian Food Trade). 16.6.22

(4) Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services. Current consolidated version 18.12.18 https://tinyurl.com/5n7uju3s

(5) Dario Dongo. Advertising on TV and the web, the European Parliament asks for limits on foods rich in fats, sugars and salt. GIFT (Great Italian Food Trade). 6.3.17

(6) The provisions on restrictions on the advertising of alcoholic beverages were already in force

(7) Directive (EU) 2018/1808, amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) in view of changing market realities https://tinyurl.com/mrkr35s8

(8) Directive (EU) 2018/1972 establishing the European Electronic Communications Code (Recast) https://tinyurl.com/4s3yn47u

(9) Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce') https://tinyurl.com/3h99ryrw

(10) See https://erga-online.eu/

(11) Directive (EU) 2018/1808, recital 8, 56-58

(12) Directive (EU) 2018/1808, recitals 4, 5

(13) Communication from the Commission Guidelines on the practical application of the essential functionality criterion of the definition of a 'video-sharing platform service' under the Audiovisual Media Services Directive (C/2020/4322) https://tinyurl.com/ka9xk2k6

(14) AVSMD, recital 82

(15) Commission Staff Working Document. Reporting on the application of Directive 2010/13/EU 'Audiovisual Media Services Directive' for the period 2014-2019 (SWD(2020)228 final) https://tinyurl.com/324hbtfz

(16) European Parliament. Question for written answer to the Commission. Ending the harmful exposure of children to unhealthy food marketing (E-001798/2022). 16.5.22 https://tinyurl.com/mr2tkaax

(17) EPHA (2021). Call to protect children from the marketing of nutritionally poor food https://tinyurl.com/y35b49dj. Proposal for a 'Directive XX/XXXX of the European Parliament and of the Council XXX on the approximation of the laws of Member States on the protection of children from the marketing of nutritionally poor food' https://tinyurl.com/mr34xxt7

(18) European Commission. (2021). EU strategy on the rights of the child. doi:10.2838/313794. https://tinyurl.com/bdcr8929

(19) WHO (2023). WHO Regional Office for Europe nutrient profile model: second edition https://tinyurl.com/368dh7np

(20) Grammatikaki E. et al. (2019). Marketing of food, non-alcoholic, and alcoholic beverages – A toolkit to support the development and update of codes of conduct. Publications Office of the European JRC118874 https://tinyurl.com/yeyjs94x

(21) WHO (2023). Policies to protect children from the harmful impact of food marketing: WHO guideline https://tinyurl.com/4xn6z3vb

(22) WHO, UNICEF. (2023). Taking action to protect children from the harmful impact of food marketing – A child rights-based approach https://tinyurl.com/363xxc83

(23) JRC. (2019). Restrictions on marketing of food, non-alcoholic and alcoholic beverages to protect health. European Commission Joint Research Center (JRC) Dataset https://tinyurl.com/mdabecxz

(24) European Commission Knowledge for Policy. Food and non-alcoholic beverage marketing to children and adolescents – examples of implemented policies addressing food and non-alcoholic beverage marketing to children and adolescents. Latest update 8.4.21 https://tinyurl.com/2vrkcynr

(25) Dario Dongo, Andrea Adelmo Della Penna. FABLE, Food and Beverage Labels Explorer. GIFT (Great Italian Food Trade). 20.11.23

(26) EU science hub. Cancer prevention and protecting children from harmful marketing: Maria João's story. 24.1.22 https://tinyurl.com/bd24jm5t

(27) Best-ReMaP project. Marketing best practices, work package 6 https://bestremap.eu/marketing/

(28) Marta Strinati. Identikit of ultraprocessed foods, excess of critical nutrients and 'cosmetic' additives. GIFT (Great Italian Food Trade). 2.9.23/XNUMX/XNUMX

(29) European Parliament resolution of 9 May 2023 on the implementation of the revised Audiovisual Media Services Directive (2022/2038 (INI)) https://tinyurl.com/yc2m68b5

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Dario Dongo, lawyer and journalist, PhD in international food law, founder of WIISE (FARE - GIFT - Food Times) and Égalité.

Andrea Adelmo Della Penna
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Graduated in Food Technologies and Biotechnologies, qualified food technologist, he follows the research and development area. With particular regard to European research projects (in Horizon 2020, PRIMA) where the FARE division of WIISE Srl, a benefit company, participates.

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