Norway is one of the first countries in the world to adapt WHO’s Recommendations “Marketing of foods and non-alcoholic beverages to children” of 2010 domestically. The aim is to prevent marketing pressure on children and thereby reduce obesity.

This article was originally published in Eversheds` Food & Drink hub.

Norway’s work in this area is attracting attention from other countries that are considering how to implement the WHO Recommendations. Among other things, the Norwegian example illustrates the challenges of restricting well-established marketing practices. Below is briefly explained how the Norwegian authorities have adopted to the WHO recommendations, how the industry responded to the suggested regulations and the current outcome.

Background
The consequences of overweight and obesity are extensive. Not only is obesity the fifth leading risk for global deaths, but overweight and obesity may lead to cardiovascular disease, cancer and diabetes (type 2). The socio-economic impact is not less dramatic taking into consideration the persistent reduction of the working force, the growing need for health care and social security benefits. The possible personal impact, i.e. life quality, should also not be disregarded. Obesity has more than doubled since 1980, and the tendency also appears in the average (increased) weight of children. This prevailing and growing health-problem causes major concern globally and finding good and appropriate measures to reduce, and in the end stop, this development is essential.

The bigger picture and underlying reasoning is of course complex, but two main reasons are nevertheless easy to detect: Less physical activity and larger consumption of unhealthy food.

The correlation between advertisement and obesity is not an unfamiliar theme for either authorities or the industry. Evidently shown by e.g. the EU pledge, which is a voluntary initiative by leading food and beverage companies to change the way companies advertise to children. The Recommendations from WHO call for global action to reduce the impact marketing of foods high in saturated fats, trans-fatty acids, free sugars, or/and salt has on children.

Legal framework in Norway
Strict rules on marketing towards children were already in place in Norway prior to the new regime. Strong restrictions apply on marketing on TV, a particular chapter in the Marketing Control Act of 2009 details particular requirements on marketing towards children and also the Act on Education of 1998 entails rules to reduce marketing in schools. In addition, the industry had a guideline in place to reduce marketing of unhealthy food towards children.

The actions taken by the authorities
Although there was already an industry guideline in place, effective from 2007, the Norwegian authorities wanted to impose a stricter regime on the Norwegian industry. It was a matter of fact that the old guideline was not complied with by all stakeholders and as such not truly effective. The Norwegian authorities had been active in the development of the WHO recommendations, and as WHO called for action to be taken by the Member States, Norway wanted to prove that it took the challenges seriously and adopted the required measures accordingly. In 2012 the authorities consequently proposed banning all marketing of unhealthy food aimed at children (below 18 years of age).

The suggested ban applied that all marketing “directed at” children and young people is illegal. The key legal question arising from this was; when is the marketing ”directed at” children and young people. This is a timely question because investigations had shown that most of the advertising for unhealthy foods was not targeted at these groups, but nevertheless had an impact on them. The authorities found that the evaluation of “directed at” was to be assessed in a discretionary manner, but the proposal nevertheless pointed out factors which were to be taken into account while performing the assessment:1) Does the marketing or the food or beverage itself have a form of presentation, content or design that may appeal to children, 2) The time and place of the marketing, 3) If children and young people or well-known persons that might appeal to children participate in the commercial and 4) The use of gifts, toys, coupons, discounts or collectibles that appeal to children.

No doubt, it differs what children between the age of 0 to18 find to be appealing and some stakeholders urged that the proposed regulation in reality involved a marketing ban of certain product categories. The proposal was massively criticized by the industry alleging e.g. non-compliance with the EEA-principles on free movement of goods as the measures taken were e.g. disproportionate.

A revised proposal was launched in 2013 mending parts of the criticism raised, but not all, and again questions arose with regards to e.g. compliance with the EEA agreement. This was further substantiated by the fact that the EFTA Surveillance Authority commented on the second proposal during the summer of 2013, pinpointing potential non-compliance. In parallel with the legislative works, the Ministries were in dialog with the industry to see whether the industry could come up with a better self-regulatory regime which could replace the need for new regulation. An amicable settlement between the industry and the authorities was made when the new industry guideline (Industry Guideline) imposing a self-regulatory regime was launched on 5 June 2013. It was brought into effect from 1 January 2014.

The new industry guideline in effect from 1 January 2014
The Industry Guideline implies that all food defined as “unhealthy” should not be marketed directly at children below 13 years of age. The age limit illustrates one of the most important changes to authority proposals, as the first proposal set the limit to children below 18 years and the second proposal set the limit to children below 15 years. The crux of the matter is to clarify which food falls within the term “unhealthy” and what marketing activities that may be seen as aimed “directly at “children. As regards the latter, the guideline makes it clear that one must perform an overall assessment in order to decide whether the marketing is particularly aimed at children.

To give some further guidance, it is emphasized that the assessment should take into account the following aspects: 1) To what extent does the media that is used appeal particularly to children? 2) To what extent do the means that are used appeal particularly to children? 3) To what extent do the promoted products appeal particularly to children? Unhealthy food is defined as certain energy-dense, salty, sweet or nutrient-poor food, all exhaustively defined in the guideline, which includes e.g. chocolate, biscuits, snacks, soda and different kinds of fast food.

The Industry Guideline applies to all types of media sources and channels and marketing is defined as any sales promotional act. While discussing the two proposals made by the authorities, one key discussion point was whether packaging and placing in shops were a part of the ban. The Industry Guideline aims at reducing the grey areas which caused problems while discussing the proposals from the authorities. Consequently, the Industry Guideline clarifies that the product itself, including the packaging and the general presentation of products at retail outlets, are not a part of the ban. Moreover, the Industry Guideline makes it clear e.g. that television advertisement sent after 21.00 will not be considered as marketing directed towards children.

Should the Industry Guideline not be complied with, any entities, NGOs or private persons may complain to the Complaint Commission of the Food Industry (“Matvarebransjens Faglige Utvalg”). The complaint must include a written presentation of the matter, the plaintiff and the respondent , including documentation. The plaintiff’s identity will if requested, however, not be disclosed to the respondent, only to the Commission. The respondent will be given the right to comment within 14 days. The complaint will thereafter be assessed by the Commission. The decision will be made public, and even though no fines or other measures are taken against an non-compliance, the intention is that it will function as a “name and shame” system in practice. The decision is final. Should however the campaign in question involve violation of legislation set out e.g. in the Marketing Control Act, then other measures such as bans and fines may be imposed by the competent authority.

What next?
The industry was originally granted a two-year trial period to prove the success of the Industry Guideline. Should the new regime not have the desired effect, the second proposal was to be brought into effect. However, a new Government is now in charge, being generally more in favour of private entities than the former one, something which should generally reduce the risk of the second regulation’s implementation. In any case, a revised proposal should be expected due to the concerns raised by the EFTA Surveillance Authority.

Despite the fact that the outcome is less strict than what the authorities intended, the industry should be eager to comply: If the compliance of the Industry Guideline fails it will suggest that the Norwegian model was not fit for purpose, making it far more likely that the Norwegian authorities and other countries will consider legislative measures rather than self-regulatory regimes.