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RESTRICTIONS ON MARKETING OF FOODS AND NON- ALCOHOLIC BEVERAGES TO CHILDREN: BEST INTEREST OF THE CHILD

RESTRICTIONS ON MARKETING OF FOODS AND NON- ALCOHOLIC BEVERAGES TO CHILDREN: BEST INTEREST OF THE CHILD

  1. Background and Introduction

Understanding the problem:

The rise of noncommunicable diseases (NCDs) has become a global issue with high numbers of deaths registered worldwide at 41 million. The World Health Organisation re-affirms this and states that each year, 15 million people die from NCDs between the age of 30 and 69 years and over 85% of these “premature” deaths occur in low-and middle-income countries. While deaths from NCDs primarily occur in adulthood, the risks associated with unhealthy diet begin in childhood and build up throughout life.  Childhood obesity is associated with a higher chance of adult obesity, premature death and preventable disability. It is an urgent concern because it has the potential to reverse many of the health benefits that are contributing to increased life expectancy. Overweight and obesity now ranks as the fifth leading risk for death globally and according to the Joint Child Malnutrition estimates by UNICEF, WHO and the World Bank, there are nearly 41 million overweight and obese children globally, an increase of 11 million since 2000. UNICEF warns that if the current trends continue, the number of overweight or obese infants and young children globally will increase to 70 million by 2025. In Uganda, research indicates that the prevalence of obesity among school children is at 32.3% and that of overweight is at 21.7%. The prevalence is higher among those in private schools (16.6%) compared to those in public schools (11.5%).

Most children are growing up in environments that encourage weight gain and are not conducive to weight loss. Consumption of unhealthy diets including non- alcoholic beverages has been suggested as a major contributory factor to childhood obesity. Globally, an extensive variety of food and drink products are now available in most markets, heavy marketing of many of these products, and especially those with a high content of fat, sugar or salt, challenge efforts to eat healthily and maintain a healthy weight, particularly in children.  

The food and beverage industry highly targets children who they influence primarily through three markets: the primary market, as consumers in their own right; the parental market, as children play a major role in influencing what their parents buy, referred to as ‘pester power’ or kid-fluence; and the future market, as children are likely to stick to the consumption habits they acquired as children when they grow older. Food companies use different marketing techniques to promote unhealthy food to children, including advertising through television, radio, print and billboards, as well as sponsorship arrangements, point-of-sale advertising and packaging design. The Internet and other forms of digital marketing enable immersive, interactive and integrated marketing strategies: Unhealthy food marketing is everywhere, and children access digital media from an early age, often without the supervision of parents or any other adult. The companies also sponsor sports tournaments, give out free product samples or toys when a child purchases the drink, other companies use children as brand ambassadors as a form of advertising which attracts and draws more children to purchase their products. The unrestricted marketing of foods to children as discussed above is a major risk factor in causing obesity among children which can also result into premature deaths at a young age. This is therefore a violation of the children’s right to health which is provided for under different international conventions to which Uganda is a party. The right to health and the right to food are not explicitly provided for under the Constitution of the Republic of Uganda (1995) as amended. However, the rights are protected under the National Objectives and Directives of State Policy, Objective XIV which provides that the state shall endeavor to fulfill the fundamental rights of all Ugandans and ensure that all Ugandans enjoy rights and opportunities to, inter alia, health services and adequate food. Objective XXII(c) provides that the state shall encourage and promote proper nutrition through mass education and other appropriate means in order to build a healthy state. Therefore, the state must take measures like restricting marketing of unhealthy foods to protect the health of children and build a healthy state.

The best interest of the child:

The “best interests of the child” provided for Uganda’s Children’s Act 2016 (as amended), incorporates its international commitments, including Article 3(1) of the UN Convention on the Rights of the Child, which describes the “best interests of the child” as a basic consideration in all decisions related to children. It should be noted that children do not have cognitive ability to make many decisions and can easily be manipulated through marketing that is why it is important for them to be protected from such manipulations. It is for this reason that the Constitution gives children the right to be protected from social and economic manipulations.[1]

The Convention on the Rights of the Child (CRC) at Article 6 provides that state parties shall ensure to the maximum extent the survival and development of the child. The African Charter on the Rights and Welfare of the Child at Article 4 provides that in all actions the primary considerations by any person or authority shall be in the best interest of the child. It is for this reason that that the interest of the children (Health and adequate food) should be the overriding objective when it comes to regulation of marketing of foods and non-alcoholic beverages.

How does marketing of food and non-alcoholic beverages affect children?

General Comment No. 15 (2013) on the right of the child to the enjoyment of the highest standard of health at paragraph 5 recognizes that children’s health is affected by a variety of factors which continue to evolve and including a range of non-communicable diseases. Paragraph 6 recognizes that advancement in communication and information technologies have created new opportunities and challenges to achieve children’s right to health. The General Comment puts a duty on duty bearers to be involved if children’s right to health is to be realized. 

General Comment No.16 (2013) on State obligations regarding the impact of the business sector on children’s rights paragraph 5 requires that states must ensure that activities and operations of business enterprises do not adversely impact on the rights of children by taking steps to ensure that operations like advertisements and marketing of their products do not adversely impact the health of children.

General Comment No. 4 of 2003 on Adolescent health and development in the context of the Convention on the Rights of the Child, it is recognized that the health and development of adolescents is strongly determined by the environments in which they live. A safe and supportive environment includes addressing attitudes and actions of both the immediate environment as well as the environment created by, inter alia, the media and legislation. It should be noted that the right to food is interlinked to several other rights. Where children’s right to food is violated other rights like the right to life, the right to health, the right to live with

dignity among others will also be violated. This comes from the principle that human rights are interrelated and interdependent hence the failure to protect the children’s right to food by allowing unrestricted and unregulated advertisement of food and non-alcoholic beverages is continuous violation children rights.

WHO has stated that food marketing affects children’s behavior in a negative way and therefore global action is needed on the marketing of food to children. According to WHO’s set of recommendations for marketing of foods and non’-alcoholic beverages to children, several recommendations are given to address this problem among which include but not limited to;

  • Member States can adopt a comprehensive approach to restricting all marketing to children of foods with a high content of saturated fats, trans-fatty acids, free sugars, or salt, which fully eliminates the exposure, and thereby also the power, of that marketing. Alternatively, Member States can start by either addressing exposure or power independently or dealing with aspects of both simultaneously in a stepwise approach.
  • Settings where children gather should be free from all forms of marketing of foods high in saturated fats, trans-fatty acids, free sugars, or salt. Such settings include, but are not limited to, nurseries, schools, school grounds and pre-school centers, playgrounds, family and child clinics and pediatric services and during any sporting and cultural activities that are held on these premises.

Member States should cooperate to put in place the means necessary to reduce the impact of cross-border marketing (in-flowing and out-flowing) of foods high in saturated fats, trans-fatty acids, free sugars, or salt to children in order to achieve the highest possible impact of any national policy

UNICEF has also provided guidance for policy makers on a child rights-based approach to food marketing. They recognize and highlight several marketing techniques that are used to promote brands including foods to children and these include celebrity endorsements, use of cartoons and licensed characters, gifts distributed with children’s meals and sports events in schools among others.

The presidential initiative on healthy eating and healthy living and the Food and Nutrition Policy of 2003 can be a starting foundation where a multi-sectorial approach is used to engage all stakeholders including policy makers to protect the safety and health rights of children by introducing restrictions to the marketing of unhealthy foods.

  1. Summary of laws and policies impacting on marketing of foods and non-alcoholic beverages to children in Uganda
Law/ PolicySelect provisionRelevance
The Constitution of the Republic of Uganda (1995) as amendedObjective XIV provides that the state shall encourage and promote proper nutrition through mass education and other appropriate means in order to build a healthy state. Article 20(2) provides that rights and freedoms of individuals shall be respected, upheld and promoted by all organs and agencies of government. Article 34(4) protects children from social and economic exploitationObjective XIV can be used to put restrictions on marketing of foods and non- alcoholic beverages to children by placing a responsibility on the state to take appropriate means to promote proper nutrition. Article 20(2) makes it mandatory for state organs to respect and protect human rights, this includes the right to health and the right to food of children. Article 34(4) can be used to restrict marketing of foods and non-alcoholic beverages.
The Children Act 2016 (As amended)Section 3 provides that in all matters concerning the upbringing of a child the welfare of the child is to be the paramount guiding principle. Section 4 (1) (L) guarantees children all the rights as prescribed under the Convention of the rights of the Child and African Charter on the rights of the Child.  Section 3 is relevant as it shows that the health of children in Uganda overrides the business and commercial interests of the food and non-alcoholic beverages industries. Section 4(1) (L) is very important as it makes all rights prescribed for children under international conventions and applicable General Comments enforceable in Uganda with necessary modifications.
The Uganda Communications Act 2013Section 5 provides for the functions of the Commission which includes to monitor, inspect, license supervise, control and regulate communication services.This provision makes it a responsibility of the Uganda Communications commission to regulate and set standards for advertisements. This means that the commission has the responsibility to regulate the marketing of foods and non-alcoholic beverages to children.
The Advertising Standards Code (under the Uganda Communications Commission Act)This Law is to be implemented by the Uganda Communications Commission. The standard defines advertisements. (a) “Advertisement” shall mean any visual or aural communication, representation, reference or notification of any kind – (i) which is intended to promote the sale, leasing or use of any goods or services; or (ii) which appeals for or promotes the support of any cause. (iii) Promotional content of display material, menus, labels, and packaging shall also fall within the definition. Editorial material shall however not be an advertisement, unless it is editorial for which consideration has been given or received. Regulation 7 provides that ‘advertisements addressed to or likely to influence children shall not contain any statement or visual presentation which might result in harming them, mentally, morally, physically or emotionally.This provision is relevant in determining whether a communication by a SSB company constitutes an advertisement.   Regulation 7 could be used to restrict marketing of unhealthy foods to children however this provision hasn’t been used to that effect. This provision is also not adequate to be used to protect children from marketing and advertisements of unhealthy foods
  1. Comparative analysis

Developing of policies and regulations to restrict the marketing of foods and non-alcoholic beverages to children is not an issue that is being fronted in Uganda only. Several countries have realized the threat of the unregulated marketing of food and non-alcoholic beverages to the health and well-being of children and therefore, have come up with certain regulations and restrictions.   These Countries include Canada, Chile, France, Ireland, Mexico and Taiwan. With lessons from these countries, Uganda can develop and enforce its regulations that restrict the marketing of food and non-alcoholic beverages to children.

  • Canada

Quebec passed the Consumer Protection Act in 1980 restricting and, banning fast food marketing aimed at children under the age of 13 in print and electronic media under Sections 248 and 249. Fast-food expenditures subsequently decreased 13 percent and while the rest of Canada has seen a drastic increase in obesity among children, Quebec maintains the lowest child obesity rate.

  • Chile

Chilean law on Food Labelling and Advertising, 2016 restricts advertising which targets children under the age of 14 for foods considered high in calories, saturated fat, sugar, and sodium. The regulation applies to television programs, websites, radios, and magazines directed at children or those where the audience is composed of 20 percent children or more. Likewise, these select food items may not be marketed in schools. Promotional strategies including the use of cartoons and toys are also prohibited.

  • Ireland

In Ireland, foods high in fats, sugar, and sodium are banned from advertising, sponsorship, teleshopping, and product placement in children’s TV and radio programs where over 50 percent of the audience is under 18 years old. Any advertising targeting children under 18 cannot include celebrities, and those directed to children under 13 cannot include health claims or use licensed characters.

  • Mexico

The Mexican government commission reports that their children see more junk-food advertisements than any other country, totaling 12,000 a year. The Ministry of Health has taken a series of steps to limit child exposure to unhealthy food marketing, beginning with restricting advertising of certain foods and sweetened beverages, determined by their compliance to a nutrient profile model.

Restrictions apply to television programs with more than 35 percent of the audience under 13 years old, between 2:30 pm and 7:30 pm on weekdays and 7:00 am and 7:30 pm on weekends. The government approved regulations restricting selling of junk food to children.

  • Taiwan

In January 2016, Taiwan passed the Act Governing Food Safety and Sanitation implemented unhealthy food advertising limits for kids under 12 years old. Dedicated television channels for children cannot broadcast advertisements of foods exceeding set fat, sodium, and sugar content limits from 5 pm to 9 pm. Like their Chilean counterparts, food marketers cannot promote their products with free toys at restaurants, a common practice among fast food chains.

  1. Recommendations
  2. The Uganda Communications Commission

The Uganda Communications is in charge of regulating, formulating and implementing of communications standards and this includes on marketing and advertisements. Therefore, the

Commission has a vital role to play in the protecting of the rights of children by developing and enforcing regulations to restrict marketing of foods and non-alcoholic beverages to children.  We recommend that the commission:

  • Implementing Regulation 7 of the Advertising Code to restrict the advertisement of foods and non-alcoholic beverages to children on all media platforms including electronic, print and online media.
  • Advocate for regulations under the UCC Act restricting marketing by food and non alcoholic beverage companies through program sponsorship or broadcast between 6am and 9 pm as a watershed period which is a time of day within which programming aimed towards mature or adult audiences is prohibited therefore children cannot view it.  
  • Ministry of ICT and National Guidance
  • The Ministry can make proposals to the Cabinet and Parliament for the adoption of regulations under the UCC Act prohibiting the use of children in sponsorship campaigns or advertisement for foods and non-alcoholic beverages.
  • Make proposals for the amendment of the UCC Advertising Standards Code to prohibit advertisement and airing of programmes related to marketing of non-alcoholic beverage between a water shed period of 6am to 9pm. 
  • Ministry of Education and Sports
  • Make proposals to Parliament for the creation of new laws and regulations prohibiting non-alcoholic beverage companies from sponsoring sports tournaments and other events in primary and secondary schools.
  • Enact policies and guidelines restricting the sale of foods and non-alcoholic beverages to children in primary and secondary schools taking into account the best interest of the children and their right to health.

Who is in charge of enforcing the Advertising code? Do you want to put in a specific recommendation for its enforcement? You have no recommendation for the Ministry of education yet children (3-18 years) are predominantly in school. Is there a school health policy in Uganda? Do you guys have an Education act? Which describes what can and cannot be done in schools? Does it have a provision that you can use?

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