FOOD JUSTICE PART TWO
Redefining food safety: SA’s laws governing food advertising aimed at children need to be jacked up
Will the South African government publish much-needed legislation to restrict the marketing and advertising of unhealthy food to children this year? In Part Two of #Food Justice’s mini-series on the subject, we investigate why the process has stalled and the meaning of industry ‘self-regulation’ (in the near-absence of government enforcement).
There is no quick fix for South Africa’s astronomical rates of obesity and related diseases, which cost millions of lives and billions to the public purse, but a good place to start, experts say, would be to dramatically upgrade our food regulations — and redefine the meaning of “food safety”.
This would be a first step in discouraging ‘Big Food’ (industrial agri-food companies) from selling unhealthy products and to encourage South Africans to reduce their shockingly high rates of consumption of ultra-processed foods (UPF), which are cheap, convenient, far more accessible to most South Africans than fresh foods, and addictive.
What do SA’s food-related regulations say?
South Africa’s current regulations governing labelling and advertising (known as “R146”) were published in 2010 and have not been updated since. (See sidebar 1).
They stipulate only basic labelling requirements (ingredients and manufacturer’s address) and are way behind other countries with similar problems. Chile and Mexico, for example, have taken drastic regulatory steps to try to reverse their obesity and non-communicable disease (NCD) epidemics, including strict and detailed laws regulating food and drinks’ content and advertising.
Enforcement — missing in action
According to several people interviewed for this article, even our weak regulations are largely unenforced. Or, as one source who declined to be identified bluntly put it: “They are dead, dead, dead.”
There is widespread and tacit acceptance among those familiar with our food-related policies that the government’s capacity and ability to monitor and enforce even our scant labelling regulations is extremely limited. (Ed’s note: The national health department has still not responded to our questions about possible new legislation relating to advertising that targets children, sent on 26 November 26, 2021. We will report back if and when they do.)
The way enforcement of labelling requirements is supposed to work is through 800 Environmental Health Practitioners (EHPs). Overburdened and under-resourced, they are tasked with enforcing the 2010 food labelling regulations as well as a huge range of other food safety and environmental health regulations.
EHPs are employed by the health services of individual metros and district municipalities; there is officially no national-level enforcement of labelling regulations (apart from Regulation 991, which governs advertising of infant milk formulas and falls under a different Act).
“There is no training of environmental officers,” the same source said. “They have to look at both the Waterfront and Khayelitsha, at food labelling and food spoilage. The leadership is not good at all, and there are only two provinces where there is a speck of anything happening.
“Even if our regulations were fantastic, who is policing and enforcing? Nobody. It’s more about companies watching each other.”
Is industry self-regulation the only option?
Can companies, in competition with one another, really be expected to monitor each other?
The United States and the European Union, among others, have industry-led, voluntary pledges by fast-food, beverage and ultra-processed food manufacturers to restrict advertising. They have also pledged to shift their marketing to focus on healthier foods for children under 12.
In South Africa, two membership-based industry associations are where the buck stops — for now: the Consumer Goods Council of South Africa (CGCSA) and the Advertising Regulatory Board (ARB), led by CEO Gail Schimmel, which emerged from the ashes of the Advertising Standards Authority (ASA) after the ASA declared bankruptcy in 2018.
The 12,000-member CGCSA leads voluntary initiatives such as the Healthy Food Options Industry Initiative, to “support the manufacture of, and facilitate access to, foods and non-alcoholic beverages that contribute to a healthy diet as part of a healthy lifestyle”.
The ARB is responsible for implementing an advertising code crafted by the CGCSA, whose board members include executives from food corporations such as Tiger Brands, Nestlé, Pepsico, Unilever and Coca-Cola. (Ed’s note: More than one source interviewed for this article commented that “the fox is in the henhouse”.)
The code, which is publicly available, sets the bar high: it is detailed and goes much further than the state’s 2010 regulations in setting out aspirational standards for advertising, in two appendices:
- Appendix J is the Food and Beverage Code and deals with advertising to children, and
- Appendix K is the Social Media Code, which also affects children.
Any member of the public (or a company) can complain to the ARB about advertising they consider harmful or misleading. The ARB then makes a ruling based on application of the code.
But even if the ARB rules that an advertisement has breached the code, there are no real penalties and no government intervention. The ARB can order a member to withdraw an advertisement — and if the company ignores that request, the ARB can ask the media not to run the advertisement. But this, says Schimmel, rarely happens.
“To a large extent, the industry is keeping the rules,” Schimmel says, affirming the view that self-regulation is the stricter path, and that the industry reacts more consistently and more quickly than government would.
“Complaints will often be met with a positive response from industry: ‘We see it, we’ll fix it’. A Coca-Cola, a Tiger Brands, KFC — we issue a decision, they listen, whether or not they are members, because they are brands that subscribe — at least overtly — to an ethical business practice,” says Schimmel.
By Schimmel’s own admission, the number of complaints the ARB receives is low — and none of the 309 complaints (and their rulings) published on the ARB’s website in the three years since it was founded are about potential harm to children’s health. The ARB, Schimmel says, doesn’t see complaints about fast-food advertising to children.
But global research examining “self-regulation” by industry bodies has concluded that it doesn’t work, especially when those bodies are funded by and serve the interests of multinational corporations whose business objective is to make as much profit as possible.
The issue — even with a “good” code such as the ARB’s — is not so much about what’s in it as it is that it’s unenforceable because it’s not a state regulation. In addition, terms such as “healthy” and “unhealthy” are undefined and open to broad interpretation by member companies.
Schimmel disagrees: “I want to challenge this idea that industry has taken the ‘weak’ path because, by backing self-regulation, they actually take the stricter path. When it comes to the ARB code, we would apply it to any type of advertising — a menu, a point of sale, a claim made by an influencer. We regulate more than the label — we regulate the whole of the advertising space.”
One shortcoming in this reasoning, says a legal expert who asked not to be named, is that if you’re not an ARB member, you are not under the ARB’s jurisdiction.
“If you are a member,” they told Maverick Citizen, “you simply say you’ve withdrawn the ad, then you can rerun a very similar one, and the only way the ARB can pick up on it is if someone else complains — but the general public doesn’t know about this food and beverage code [Appendix J], so they [the ARB] simply don’t receive complaints.”
Still, the ARB code’s content, while it could use some sharpening of definitions, sets a much higher bar than the government has so far [see sidebar 2.2].
“I would always advocate for self-regulation over government regulation,” Schimmel says, “but a functioning government regulation system that works together with self-regulation would be a desirable situation. Ideally, what should happen is we get a complaint, make a decision, and if the producer is not cooperating, we should hand it over to government.”
Petronell Kruger, a public health lawyer, believes that ideally there should be full state regulation, but questions the feasibility of that in South Africa. “What works really well is a system of co-regulation, which the ARB could absolutely fulfil.”
But first, will the government step up and enact new regulations?
It is believed, according to more than one of Maverick Citizen’s sources, that when the draft of regulation R429 was published for comment in 2014, “there were major problems with how it was written”, and the Department of Health received many comments, including (some say) outraged responses from industry.
Given the nature of these comments, the source said, a decision was made within the department to go back to the drawing board, rework certain aspects of the regulation and ensure they had a sound evidence base and had followed a scientific process. Additionally, the development process needed to be free from any industry interference.
Tamryn Frank, an obesity prevention researcher at the University of the Western Cape, explained why “scientific process” is necessary: In order for a policy to define restrictive food policies such as front-of-package warning labels, or marketing restrictions, a “nutrition profiling model” that identifies “healthy and unhealthy” is clearly important for future regulations. (And is exactly what is absent from the legally non-enforceable current ARB code.)
“The government doesn’t really understand the true cost of obesity — and of obesity and overweight-related conditions — to the country,” Prof Karen Hofman of Wits’ School of Public Health told Maverick Citizen.
“They are not fully on board, because if they were, there would be much more control over what was and is being advertised to children.”
Tamryn Frank, along with other experts, would welcome stronger regulation, which is thought to be in the pipeline. “To protect the health and wellbeing of everyone in our country, better regulation of this industry is needed,” Frank says.
“One is seeing, in a lot of public health and policy decision-making [globally], that marketing restrictions are focusing on children — to a large degree it has to do with what one can win. There’s a strong case to be made around children’s rights: protecting them, not exposing them to harmful content — whereas with adults, although the same thing should apply, it becomes a much more difficult case to make because of freedom of choice and [theoretically] because they can make an informed decision.”
South Africa’s current food regulations
R146: Food and Advertising regulations R146 — “Foodstuffs, Cosmetics and Disinfectants Act”, which talks about the labelling of products, not the marketing.
R991: “Regulations relating to foodstuffs for infants and young children”, (the only government regulation that relates specifically to children, published 6 December 2012).
R429: “Amendment” to the Foodstuffs, Cosmetics and Disinfectants Act, R146 (see above) relating to advertising and marketing targeting children (gazetted on 29 May 2014 but never passed into law).
- In 2014, the national Department of Health introduced Regulation 429 of the Foods, Cosmetics and Disinfectants Act to restrict the marketing of unhealthy food to children.
- Guideline 14 of the draft regulations provides specific criteria relating to the age of children (0 to 18 years), the time slots in which unhealthy food marketing (on broadcast media) may not occur, the types of health messages used and the definition of unhealthy foods.
- In 2015, the Strategy for the Prevention and Control of Obesity in South Africa 2015-2020 included a similar focus on responsible and ethical marketing of food by the food industry.
- Yet, despite these efforts, the draft regulations have not been finalised.
The Advertising Regulatory Board codes relating to marketing to children
Appendix J: Food and Beverage Code (selected extracts):
5.1 (“Responsibility”) Food and beverage advertising, including promotions, should not encourage poor nutritional habits or an unhealthy lifestyle in children, or encourage or condone excess consumption.
6.1 (“Misleading”) Presentations in advertising for food and beverage products should accurately represent the material characteristics of the product featured, in particular, but not exclusively, with regard to taste, size, nutritional content, health benefits, nature, composition, method and date of manufacture, range of use, efficiency and performance, quantity, commercial or geographical origin or environmental impact.
7.1 (“Social values”) As it is recognised that children of twelve years old and under are impressionable, food and beverage advertising should not mislead children about product benefits from use of the product. Such benefits include, but are not limited to, the acquisition of strength, status, popularity, growth, proficiency and intelligence.
7.3 (“Social values”) Food and beverage product advertising should not directly appeal to children of twelve years old and under to persuade their parents or others to buy advertised products for them, or suggest any negative consequences of not purchasing the product.
9.3 (“Inexperience and incredulity”) Care should, however, be taken not to exploit the imagination of a child of twelve years old and under in a way that could create expectations of unattainable product benefits or exploit a child of twelve years old and under difficulty in distinguishing between real benefits and fanciful benefits
14.1 (“Marketing communications on pre-school and primary school premises”) Food and beverage products that do not represent healthy dietary choices and a healthy lifestyle, consistent with established scientific standards acceptable in terms of Section II, Clause 4.1, shall not advertise on, or in close proximity to, pre-school and primary school premises.
The Advertising Regulatory Board codes relating to marketing to children
Appendix K: Social media code
3.1. (“Declaration of advertising”) To ensure full transparency, advertisers are required to disclose if content is part of a Social Media Advertising campaign as opposed to purely Organic Social Media.
3.3. Marketers should pay particular attention to ensuring that paid social media advertising is obviously identifiable as such. A clear Social Media identifier must be included within the content of the tweet or post, in order to ensure that consumers reasonably understand this to be a Paid Advertising as opposed to an Organic Social Media endorsement.
3.3.1. Recognised Social Media identifiers include:
4.1. (“Declaration of goods exchanges”) To ensure full transparency, publishers and influencers are required to disclose if they were provided (permanently or on loan) with goods or services in return for media coverage (whether this is expressly stated or not).
5.1. (“Misleading consumers”) Social Media Advertising must not contain deceptive, false or misleading content, including deceptive claims, offers or business practices (by commission or omission). Messaging should be responsible and accurate.
6.2. (“Influencer marketing”) Influencers need to declare/disclose their involvement with the brand/marketer as per section 4 “Declaration of goods and services”. DM/MC
Note: The National Department of Health has not yet responded to questions about a possible update to R429, the stalled 2014 amendment to the current food-related regulations, but has indicated that they will. Maverick Citizen has it on reliable authority that new regulations are in the pipeline, awaiting legal and ministerial approvals — but when they will be gazetted is unknown.
Maverick Citizen will publish Part 3 in this series next week, focusing on what local and international experts say new regulations on food advertising targeting children should contain, and why government regulations alone will not solve our food system-related health problems.
You can read Part 1 of the investigation here.