The Food Pyramid Meets the Regulatory Pyramid: Responsive Regulation of Food Advertising to Children

475 Pages Posted: 23 Apr 2015 Last revised: 29 May 2015

See all articles by Belinda Reeve

Belinda Reeve

The University of Sydney Law School

Date Written: April 23, 2015

Abstract

This thesis evaluates two voluntary industry codes that regulate food advertising to children in Australia. It focuses on whether the codes establish the building blocks of an effective self-regulatory regime, and draws upon the regulatory studies and public health law literature to create a framework for evaluation. Central to this framework is the theory of responsive regulation proposed by Ian Ayres and John Braithwaite, which envisages a dynamic regulatory strategy beginning with self-regulation, and escalating to more coercive forms of intervention if industry proves unresponsive.

I find that the food advertising codes contain a series of ‘escape clauses’ that permit companies to continue with most of their marketing practices. As a result, the codes do not significantly reduce children’s exposure to food advertising, or moderate the persuasive techniques used by marketers. Food industry self-regulation also lacks the features of a well-designed voluntary scheme, including clear objectives, independent administration and monitoring, effective enforcement and systematic review. Further, regulatory processes are almost entirely industry based, meaning that the scheme is not accountable to external stakeholders. Food companies report high levels of compliance with advertising codes, and an ethical commitment to responsible marketing practices. However, the initiatives do not place demanding requirements on participants; they only codify existing best practice in advertising to children.

There is a strong case for government intervention in light of the codes’ many limitations and weaknesses. However, the food industry has an economic interest in advertising unhealthy products to a wide range of age groups, and is unlikely to accept tighter restrictions on advertising to children, which might impact on their communication with adult audiences. Given this and other political barriers to legislation, the thesis concludes by considering novel options for strengthening regulation of food advertising to children in Australia, based on co-regulation but supported by the threat of more intrusive measures, should an improved scheme fail to reduce children’s exposure to unhealthy food advertising. This strategy implicitly endorses a responsive regulatory approach that envisages voluntary action by the food industry itself. However, it also recognises the central role of the state in health governance, and describes new ways for governments to fulfil their responsibility to protect public health.

Keywords: responsive regulation, self-regulation, accountability, food advertising, children, obesity

JEL Classification: K10, K30, K32

Suggested Citation

Reeve, Belinda, The Food Pyramid Meets the Regulatory Pyramid: Responsive Regulation of Food Advertising to Children (April 23, 2015). Sydney Law School Research Paper No. 15/30, Available at SSRN: https://ssrn.com/abstract=2597918

Belinda Reeve (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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