Heavy regulation needed on HFSS marketing and advertising

Speaking at yesterday's (21 March 2024) evidence gathering session at the House of Lords, Emma Boyland, chair of food marketing and child health at the University of Liverpool; Christina Vogel, professor in food policy, City University; and Sir John Hegarty, co-founder of Bartle Bogle Hegarty were grilled on the influence food businesses had over the roles of marketing and advertising and the influence of industry on dietary trends and food policy.

When asked about how the industry influences the nation’s diet, John Hegarty made it clear the major function of any business is to make a product for as little as it possibly can and sell it for as much as it possibly can.

With this distinction in mind, he claimed that businesses will do whatever they can to turn over a profit if there isn’t some form of regulation to prevent them for going too far.

“People in advertising can't do much about it,”​ Hegarty explained. “Their function is to answer a client’s needs – here is a product, please promote this in a way which is most effective.​

Up to the government

“[Advertisers] rely upon regulations that govern what we can and cannot say. So, it's up to government to put in systems and processes to make sure that what we can sell – what we should be selling – is good for the for people at large.”​

He claimed that voluntary systems were a waste of time, but an official system needs to be airtight so as to prevent businesses exploiting loopholes like those found by cigarette companies in the mid-70s.

“They created all sorts of guidelines – for example, how you couldn’t show a pilot sleeve because that’s seen as aspirational,” ​said Hegarty.

“What this did is it created an opportunity for advertising to say, ‘we can't use all those conventional cliched images, now we're free to do something quite surreal’, and they created unbelievably surreal posters that got everybody talking.​

“The regulation allowed freedom to do something completely wild and mad that the client would never have allowed you to do under certain circumstances because they were excluded from doing all the cliché rubbish they normally do.”​

The creative freedom that these guidelines created an opportunity unforeseen by the government at the time. Any new regulation being worked on today for HFSS foods needs to be airtight to prevent a similar situation from happening.

“All the people I work with in Advertising said they want proper regulation because they can't force clients to do it,” ​Hegarty added. “[The clients] pay us our fees, we're there to do a job. So, we rely upon government, we rely upon authoritative sources to say this is what you can and can't do.” ​

Enforcing legislation

On the topic of regulation that was already in place, Christina Vogel went on to discuss the work taking place to enforce the restriction of promotion of HFSS at the end of aisles and at check-out tills in retail stores.

While a good first step, there were still concerns about price differentials between healthy and unhealthy products. What’s more, exemptions and loopholes had made it really challenging to enforce the new legislation.

Examples presented to the House of Lords Food, Diet and Obesity Committee showed space cleared in the fruit and vegetables section at the front of the store to make way for Christmas confectionery, and alcohol – which as out of scope – stacked high at the end of aisles.

Questions were also raised over the complexity of the legislation, particularly in the definition of HFSS food and drink and how to tell if a product falls into the category, which makes it hard for enforcers to enforce.

“There's no current free calculator to assess or to determine which is a HFSS product and which isn't,”​ said Vogel. “I know through some of the consultations there was a proposal that we have an indicator on the labels for HFSS products, which would make it much easier for enforcers to accurately enforce the legislation.​

“There's also insufficient funding for enforcers. In the first year, all 317 local authorities were given a total of £179,000 to actively enforce this legislation.” ​

"When we spoke to enforcement officers, they said to us very clearly, ‘we have knife crime, we have Natasha's allergy legislation – they have an immediate risk and immediate threat to the lives of our people in our local areas, we're not going to really do this one’​ [HFSS legislation enforcement]."​

The lack of funding and resources to enforce the legislation ultimately leads to retailers flagrantly breaking the rules, with Easter eggs appearing and sugary drinks appearing on checkouts.

Effective regulation on advertising

Moving on to concerns surrounding the regulation of advertising, restrictions on advertising on programmes primarily watched by children remained effective, but self-regulation of online advertising had shown to be repeatedly ineffective, according to Emma Boyland.

And while there has been a marked reduction of advertising around children’s programming, there was still a lot of TV that is not child specific and watched by children. With this in mind, Boyland proposed a time ban such as a watershed as an infinitely more effective way to curb viewership.

She then brought into view the real impact of online advertising on children, highlighting the sheer amount of advertising being shown to them on a daily basis. For example, 52 minutes of every hour spent on online streaming services such as Twitch ​will feature advertising for food, with about 17.4 ads seen per hour.

What’s more, online has created a space for influencers to quickly and easily access thousands of eyes for their brands and new product launches – the biggest example of which being the launch of influencers Logan Paul and KSI Prime drinks range.

“We're also potentially moving into a more synchronous digital experience as well. You may have heard it – the Metaverse,”​ Boyland added.

“There is some discussion about what that will actually look like, but certain celebrities and brands are already using that as a brand extension – a well-known soft drink was launched there before it was physically available in stores. As an indication, that's where their presence intends to go next.”​

Keep it simple

In search of an answer, Hegarty tasked the government with looking for a simple solution to the marketing of HFSS foods. Make it clear what is and isn’t allowed and how a company will be penalised if it breaks these conditions.

And the blame can’t be laid solely at the feet of advertising companies that have only been hired to produce marketing by a client. A better solution would be to prevent the ‘bad’ products from being sold in the first place by preventing or disincentivising their manufacture.

Hegarty described advertising as a tool and any hit against food advertising would just be a distraction from the real issues at hand.

“People in advertising say, ‘why don't they just stop people making crap? Wouldn't that be a better idea? Then we could sell something good"​, he explained. “Nobody in advertising wants to sell ​[bad products]. They want to sell good things.​

“When you're dealing with something as fundamental as food, then the government have got to take​ a central role in determining what is good and what is not. You have to push companies to do the right thing.”​

Interested in this topic? You can read our editor's summary on the link between ultra processed foods and HFSS, following February's House of Lords session with Henry Dimbleby and Dr Chris van Tulleken. ​​