4 June 2006
The human rights department at Leigh Day & Co has been instructed by the National Heart Forum who is concerned about food advertising to children. The National Heart Forum is a leading alliance of over 50 national organisations working to reduce the risk of coronary heart disease and related conditions such as stroke, diabetes and cancer. The alliance comprises charities, non-governmental and medical professional organisations.
On 28th March 2006 Ofcom,
the independent regulator and competition authority for the UK communications industries, with responsibilities across television, radio, telecommunications and wireless communications services published a consultation document entitled, Television advertising of food and drinks products to children: options for new restrictions.
Ofcom was originally charged with the task of carrying out research on advertising to children in December 2003 by the Secretary of State for Culture, Media and Sport. The Government’s White Paper,Choosing health: making healthy choices easier noted that the department looked to Ofcom to ensure that children were ‘properly protected from encouragement to eat too many high fat, salt and sugar foods – both during children’s programmes and at other times when large number of children are watching’. Subsequent meetings between the National Heart Forum (NHF) and Ofcom identified nine policy options, including that of prohibiting the advertising of unhealthy foods before the 9pm watershed. The 9pm option is the preferred option of the NHF, National Consumer Council, Which?, Sustain and many others.
The 9pm option
To NHF’s dismay, however, the consultation document did not contain this option. This is despite the fact that the document itself recognises that this option would be highly effective in reducing the exposure of children to the advertising of food with a high fat, salt and sugar content. Instead, it invites comments on three options for new restrictions on such advertising, and invites consultees to develop proposals for a fourth option “which could be a permutation of the package of measures in the three core options or could be a completely new proposal”.
The NHF believes that Ofcom’s exclusion of the 9pm option is unlawful and in breach of basic standards of fairness in public consultation. It is also contrary to the Cabinet Office Code of Practice on Consultation.
NHF has also learnt that Ofcom has taken part in extensive discussions with advertisers of food with a high fat, salt and sugar content about this option. Ofcom has met with such representatives on 29 occasions while meeting consumer and health groups only four times in the same period. Food and drink manufacturers are anxious to protect their advertising slots and have enjoyed far more extensive and privileged access to Ofcom than health and consumer groups and have therefore had an unfair opportunity to influence the content of Ofcom’s consultation paper.
We therefore wrote, on behalf of the NHF, to Ofcom setting out these challenges and requesting that they confirm:
- The 9pm option is open for consultation
- Ofcom has an open mind about the adoption of the 9pm option
- A further consultation paper will be published confirming these points.
We asked to see copies of all the minutes of meetings with representatives of advertisers and broadcasters, and copies of the various drafts of the consultation paper. Their initial response, however, was unsatisfactory. They refused to agree to consult fully on the 9pm option and instead put an “update” on their website stating:
“A number of stakeholders have also asked for clarification regarding the question of a pre-9pm watershed ban on the television advertising of foods high in fat, sugar and salt. Ofcom wishes to make it clear that, while it believes, based on the current evidence, that such a move would be disproportionate it would welcome stakeholder views on this matter in response to question 5 of the consultation or otherwise”.
Judicial review proceedings
NHF felt that this does not go far enough to rectify the consultation document and were left with no option but to issue judicial review proceedings. Their application has been lodged at Court.
For further information please contact Richard Stein on 020 7650 1200.
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