Australia's regulation of food marketing

Standards for protecting children from food marketing in Australia are largely set and regulated through a series of complex industry codes. The only government regulation that deals specifically with advertising to children is the Children’s Television Standards 2009, which applies to free-to-air television and has limited provisions that relate specifically to food marketing. Public health groups have argued that this regulatory mix is inadequate to protect children from unhealthy food advertising and its adverse effects on diet and health.¹ Further details about Australia’s regulations and voluntary industry codes are provided below.

1. Statutory regulation

The Children’s Television Standards 2009 (CTS) regulate children’s free-to-air television programming in Australia. They focus on television networks’ obligations to broadcast children’s programming, the requirements around that programming and the protection of children, including restrictions on advertising.

Children’s television programming is classified under the CTS as either ‘P’ for preschool or ‘C’ for children and is broadcast at particular times of the day. There are some restrictions on advertising, however most of these are not specific to food advertising. The only provision that deals specifically with food advertising states: “An advertisement for a food product may not contain any misleading or incorrect information about the nutritional value of that product”.²

Some of the general restrictions on advertising during children’s programming are relevant to food advertising, including restrictions on advertising that:

• Puts undue pressure on children to ask their parents to buy the advertised item (CTS 31)
• States or implies that a product makes children superior to their peers, or that a person who buys it for a child is more generous than someone who does not (CTS 31)
• Presents “premiums” (for example, free toys with a children’s food product or meal) in a way that is more than incidental (CTS 33)
• Uses popular personalities or characters to promote a product (CTS 35)

The Australian Communications and Media Authority (ACMA) enforces the standards, and compliance is a licence condition for commercial television broadcasters (free-to-air television).

A criticism of the standards is that they do not restrict the volume of unhealthy food advertising to children on television. Further, the standards do not apply to the most popular television programs among children (such as reality TV programs, family movies and sporting broadcasts) or the times when the highest number of children watch television (between 6pm and 9pm).¹

2. Self-regulatory codes

The main controls on marketing of unhealthy food to children in Australia are self-regulatory codes that were established by the advertising and food and grocery industries.

a. Food industry codes

The Australian Food and Grocery Council developed two self-regulatory codes about marketing unhealthy food to children in 2009:

• the Responsible Children’s Marketing Initiative (RCMI, applies to food and beverage manufacturers)³
• the Quick Service Restaurant Industry Initiative for Responsible Advertising and Marketing to Children (QSRI, applies to fast food chains).⁴

These codes were administered by the Australian Food and Grocery Council until 1 July 2020, when the Australian Association of National Advertisers assumed responsibility for the codes.⁵

Some of the key elements of the food industry codes are:

• The codes apply to all advertisers, after being incorporated into the Australian Association of National Advertisers Food & Beverage Advertising Code from June 2019. (Previously they applied only to companies that chose to be signatories).

• The codes apply to certain types of media, and each code has different application. The RCMI applies to television, radio, print, cinema and internet sites. The QSRI applies to television, radio, newspaper, magazines, outdoor billboards and posters, emails, interactive games, cinema and internet sites.

• Children are defined as aged under 12 years (RCMI) and under 14 years (QSRI).

• RCMI and QSRI both restrict marketing that is ‘directed primarily to children’. This is defined by the placement of the advertisement in a medium that is directed primarily to children (for example C and P rated television programs); and/or where children are 35% or more of the audience.

• Restriction on marketing ‘directed primarily to children’ is also defined by the content of the advertisement (its themes, visuals and language) in both the RCMI and QSRI.

• Under the RCMI, signatories can only market food or beverages to children if they are ‘…healthier choices, consistent with established scientific or Australian government standards, as detailed in Signatories’ Company Action Plan’(RCMI s1.1). Each company sets its own action plan to determine which products can be marketed to children. Marketing must also represent healthy lifestyles, including messaging to encourage good dietary habits and physical activity.

• Under the QSRI signatories can only market food or beverages to children (as part of children’s meals) if they are healthier choices, in accordance with nutrition criteria set out in the QSRI. Marketing must also represent healthy lifestyles, including messaging to encourage good dietary habits and physical activity.

• The RCMI and QSRI contain rules about product placement of food (S1.2), use of food in interactive games (s1.3) and advertising in schools, pre-schools and daycare centres (s1.4).

• The QSRI contains addition rules about the provision of food and beverage products or vouchers as awards or prizes at children’s sporting events (s1.5- restricted unless the products meet the nutrition criteria), availability of nutrition information (s1.6) and on-pack nutrition labelling (s1.7).

b. Advertising industry codes

The Australian Association of National Advertisers (AANA) developed a range of self-regulatory codes about advertising in 2009, with the following codes relevant to marketing of food to children:

• Children’s Advertising Code (Children’s Code)⁶
• Food and Beverages Advertising Code (Food and Beverages Code)⁷
  

Some of the key elements of the advertising industry codes are:

• They apply to all advertisers.

• They apply broadly to all forms of media and all promotional activities, subject to some requirements and exceptions such as product packaging.

• They contain rules around marketing that is ‘directed primarily to children’ in terms of its theme, visuals and language. The Food and Beverages Code also includes some rules that apply to food and beverages advertising generally, not only to children.

• Both codes define children as aged 14 years or younger.

• Key restrictions include provisions on advertising that contravenes ‘prevailing community standards’ (Food and Beverages Code 2.1, 2.2); undermines the importance of healthy or active lifestyles or the promotion of healthy balanced diets (Food and Beverages Code 2.2); encourages excess consumption (Food and Beverages Code 2.2, Children’s Code 3.2); or encourages or promotes inactive lifestyles or unhealthy eating or drinking habits (Children’s Code 2.14).

• There are also rules around the use of popular personalities (Children’s Code 2.10); premiums (Children’s Code 2.11, Food and Beverages Code 3.6); undermining parental authority (Food and Beverages Code 3.4, Children’s Code 2.7); and stating or implying that a product will give children an advantage (Food and Beverages Code 3.3, Children’s Code 2.7).

• As of 1 June 2019, the Food and Beverages Code required food and beverage advertisers to comply with the RCMI where applicable and quick service restaurant advertisers to comply with the QSRI where applicable.

• Each Code has a Practice Note providing guidance on its interpretation.

Ad Standards (formerly the Advertising Standards Bureau) manages complaints made under both the food industry and advertising industry codes. Complaints are decided by the Ad Standards Community Panel. Ad Standards has no power to impose sanctions on advertisers that breach the codes or to enforce its decisions, and can only request that advertisers modify or withdraw offending advertisements.⁸ Such determinations take time and are typically made after the conclusion of the relevant campaign.

Review of food marketing regulation to children

The Obesity Policy Coalition monitors marketing of unhealthy food and drinks to children and has made complaints to authorities including Ad Standards when it believes such marketing is in breach of the codes. Based on experience with these processes and following a review of evidence in Australia and internationally, the Obesity Policy Coalition has concluded that industry self-regulation fails to protect children from unhealthy food marketing, and the federal government should intervene to regulate its volume and influence.⁹ In a detailed review of the existing system, the Obesity Policy Coalition notes that:

• Marketing is only covered if it is ‘directed primarily to children’ – this is a narrow definition and is unlikely to cover media popular with both children and adults, such as popular prime television programs and social media
• Some forms of marketing are not covered at all under the industry codes (such as sports sponsorship, packaging designed to appeal to children such as through cartoon characters)
• Food companies can decide which foods are ‘healthier’ and can therefore be marketed to children (this has included high-sugar breakfast cereals and ice-creams)
• The codes don’t adequately protect children from digital marketing
• The codes don’t cover children older than 12 or 14 years
• Compliance isn’t effectively enforced or independently monitored.

A study of food advertisements on free-to-air television channels in Sydney found that the frequency of advertising for energy-dense, nutrient-poor foods remained largely unchanged between 2006 and 2011, despite the implementation of the food industry codes in 2009.¹⁰ Another study analysed the rate of unhealthy food advertising to children on three commercial television channels and a youth-oriented digital channel in 2011 and 2015. Researchers found no change in the rate of unhealthy food advertising since 2011, and concluded that the codes were having little impact on reducing children’s exposure to unhealthy food advertising.¹¹ This was despite the objective of the food industry codes to “reduce advertising and marketing communications to children for food and beverage products that do not represent healthier choices”.⁴³ Fast food, chocolate and confectionery were the most common unhealthy foods advertised.¹¹