State intervention needed to protect children against ‘junk food’

The government must step in and take action when the health of children is jeopardised by negative lifestyle influences, Lize Mills, Senior Lecturer in the Department of Private Law at Stellenbosch University, wrote in the Cape Times recently (6 June 2012).

Lize Mills. (Photograph: ANTON JORDAAN)

In her article she points out that according to a 2010 report by the World Health Organisation, more than 42 million children under the age of five are overweight. In South Africa, a local study conducted in 2006 revealed that 2,4% of boys and 4,8% of girls between the ages of six and 13 were already obese.

“The US and South Africa are both implementing regulations regarding the marketing of energy-dense, micronutrient-poor food – also known as “junk food” – and beverages to children, to force the private sector to develop and market food products responsibly.

“This has predictably met with instances of resistance from manufacturers and parents alike. Although it is necessary to recognise the rights of these adult parties, the over-riding reason for government intervention is to hold the best interests of the child paramount,” Mills wrote.

She was an organiser of the annual Family Law Colloquium held at SU in 2011. Her complete article, based on her paper at this event, follows below. It fits in with her current research for her LLD degree.  (Click here for a PDF.)

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State intervention needed to protect children against ‘junk food’

By Lize Mills

On 1 March 2012, the Department of Health implemented a set of Regulations Relating to the Labelling and Advertising of Foodstuffs.

According to a 2010 report by the World Health Organisation, more than 42 million children under the age of five are overweight. In South Africa, a local study conducted in 2006 revealed that 2,4% of boys and 4,8% of girls between the ages of six and 13 were already obese.

As a result of the global increase in childhood obesity, the World Health Organisation has called on governments to intervene and create policies that dictate how private sector companies are allowed to market food products to the youth, in a bid to ensure that children consume more nutritious meals.

The US and South Africa are both implementing regulations regarding the marketing of energy-dense, micronutrient-poor food – also known as “junk food” – and beverages to children, to force the private sector to develop and market food products responsibly.

This has predictably met with instances of resistance from manufacturers and parents alike. Although it is necessary to recognise the rights of these adult parties, the over-riding reason for government intervention is to hold the best interests of the child paramount.

In South Africa, as in many countries, children are exceptionally vulnerable to inadequate nutrition. Junk food tends to be easily accessible and more affordable than healthy alternatives, and the way that these products are marketed actually exacerbates the problem of malnutrition by encouraging poor decision making.

Globally, television advertising remains the most visible and popular medium for promoting products, and while it is the most regulated in terms of promoting food to the youth, the regulations fall horribly short. In 2008, more than $1,6 billion was spent on promoting food and beverages to children in the US. Of this, $870 million was directed towards campaigns targeted at children 12 years or younger.

The lack of regulation in such areas as product placement, endorsement and sponsorship deals, internet marketing, sales promotions, toys and giveaways, and product labelling remains patchy and worrying, to say the least.

Interventions in the US

In US President Barack Obama’s strides to tackle the obesity issues of his fellow countrymen and women, he signed into law the controversial Patient Protection and Affordable Care Act of 2010, which demands that restaurants and food franchises with 20 or more locations are required to:

• List the kilojoule content of standard menu items (applicable to table menus, display menus and drive-through menus).

• On request, make available in writing nutritional information including fat, saturated fat, cholesterol, sodium, total carbohydrates, sugars, fibre and total protein content of meals. Similarly, vending machine owners in the US are required to disclose the kilojoule content for certain items.

The Obama administration also asked food manufacturers to “entirely rethink” how they advertise their products and employ principles in their marketing to encourage healthful choices among children.

The proposed guidelines requested manufacturers to refrain from promoting products that contain trans fats, more than 1g of saturated fat, more than 210mg of sodium or more than 13g of added sugar per serving. These requests, unless legislated, will probably fall on deaf ears.

In some jurisdictions in the US, however, legislation is already in place to prohibit toys from being included in children’s meal packs unless they meet the following “healthy” criteria, with each meal containing: less than 2 093 kilojoules; less than 600mg of sodium; less than 35 percent of total kilojoules in the form of fat; and, at least half a cup of fruit or vegetables, or one serving of wholegrain products.

McDonald’s has criticised these proposed measures by stating that its toys should not carry the full weight of responsibility for the problem with childhood obesity but that there may be many contributing factors. It has also opposed requests from academics, health professionals and Corporate Accountability International to stop marketing junk food to children.

Interventions in South Africa

In South Africa, the food production industry is governed by statutory regulations applied by the state, as well as self-regulatory codes of conduct, including that of the Advertising Standards Authority.

The recently enacted Consumer Protection Act furthermore prohibits the practice of misleading and irresponsible marketing, and specifically seeks to protect vulnerable and impressionable groups of consumers, such as children.

The Food and Beverage Code (of the authority’s Code of Conduct) in general endorses the advertising and promotion of healthy food to children, while it prohibits the encouragement of poor nutritional habits, unhealthy lifestyles and excessive consumption, particularly to children under 12 years of age.

On 1 March 2012, the Department of Health implemented a set of Regulations Relating to the Labelling and Advertising of Foodstuffs, and the following are some of the important provisions included in these regulations:

• Foodstuffs should be described in such a manner that the information related to the contents and/or composition of a product is indicated in close proximity to the name thereof on the main panel of the packaging in letter sizes as prescribed by the regulations;

• The description should be legible and the contents should not be misleading and/or aimed at deceiving consumers. This provision relates to, for example, products such as quick frozen chicken portions to which a brine-based mixture has been added as an ingredient;

• The inclusion of date markings such as “best before”, “sell by” and “use by” on the packaging of prepackaged foodstuffs to inform consumers of the freshness and suitability status of foodstuffs at the time of purchase;

• Details of the country and/or countries of origin, or where the foodstuffs have been produced;

• Criteria for certain nutritional claims such as for example, “high in fibre”, “low fat”, “sugar free”, etc, as well as in these instances the mandatory inclusion of a nutritional table in a prescribed format to substantiate/support such claims.

• The inclusion of information referred to as “Quantitative Ingredient Declaration” which will ensure that consumers are made aware that the amount of a certain ingredient or ingredients emphasised on the label of a foodstuff is present therein, for example in a product described on the label as an “olive oil spread”, the percentage of olive oil present in the product should be indicated in the list of ingredients; and,

• In the case of raw processed meat products such as quick-frozen chicken portions, to which a brine-based mixture has been added as an ingredient, the percentage of chicken and of the brine-based mixture should be declared on the main panel of the packaging.

At this stage the regulations however do not address the following:

• The responsibility of a manufacturer to disclose nutritional information of their product. Manufacturers are only required to provide nutritional information in instances where they make a specific health claim about their particular product;

• The disclosure of nutritional information at catering establishments such as restaurants and fast food outlets;

• The issue of including toys with children’s meals (there is presently no prohibition on the marketing of food to children where the inclusion of a toy or gift acts as an incentive to purchase); and,

• Provision of scientific guidelines and parameters for what is considered healthy or unhealthy.

In May 2011 the Minister of Health declared a wish to legislate for a reduction in the salt content in food, which may hopefully pave the way for reducing sugar content in products such as breakfast cereals.

The Minister has also expressed the view that the custom of including “free toys” with kid’s meals should also be prohibited in South Africa.

These “wishes” are still to be enacted. In August 2011, however, the Regulations Relating to TransFat in Foodstuffs came into force. This prohibits the sale, manufacture and importation of any foods containing more than 2g per 100g of artificially created fats.

While the Minister and Department of Health should be applauded for the efforts to provide stricter regulation, much more action is required to bring South Africa legislation in line with the action plans and strategies of the World Health Organisation. These guidelines are directly in line with the principles of international child law and, as such, governments carry a heavy responsibility to intervene in managing the causes of childhood obesity.

Parents and members of the private sector will undoubtedly have complaints about increased legislation impinging on their rights, and there may be murmurs of a “nanny state”. The government must, however, step in and take action when the health of children is jeopardised by negative lifestyle influences. It must serve the best interests of children by providing them with sufficient protection, information and assistance against unscrupulous marketing practices.

  • Lize Mills is a senior lecturer in the Department of Private Law at Stellenbosch University. She was an organiser of the annual Family Law Colloquium held at SU last year. This article is based on her paper at the event, and fits in with her research for her LLD degree.