New Year's resolutions are notoriously short-lived. Dry January rarely survives the miserable second Monday of the year and gym memberships lapse by February (even without CMA enforcement action). So it is faintly remarkable that one piece of health-related change actually stuck around this January: the long-delayed restrictions on advertising "less healthy" food and drink (LHF) finally came into force, banning television adverts for LHF products before nine at night and banning paid-for online advertising of them altogether.
These restrictions were first proposed in 2021, legislated for in 2022, and delayed so many times that most advertising lawyers had stopped holding their breath waiting for them to actually arrive. Barely six months into their new life, along comes the House of Commons Health and Social Care Committee with a report entitled Food and Weight Management: Fixing the food environment, published on 15 July, informing the advertising industry that the rules do not go nearly far enough.
Before the Committee's report even reaches advertising, it takes aim at the planning system, in the same chapter charmingly titled "Addressing the obesogenic environment." Gateshead Council's 2015 decision to block new fast-food outlets near schools, in areas already thick with them, or where childhood obesity rates topped 20%, cut the density of takeaways by around 13 per 100,000 people. In the most deprived parts of the borough, which had the most takeaways before the ban, the proportion of Year Six children recorded as overweight or obese fell by 4.8% compared with other areas. This apparently caught the attention of the fried chicken industry. An investigation found that KFC had challenged at least 43 English councils over their takeaway planning policies, and won more than half of those fights. Part of the trouble, says the Committee, is that a fast-food outlet can sidestep the whole debate by operating as a "restaurant" under the broad Class E use class, a disguise seemingly available to anyone willing to put a couple of chairs by the window. The Committee wants tighter definitions of "hot food takeaway," "fast-food outlet" and "reasonable walking distance," a crackdown on the Class E loophole, and a mandatory seat for public health officials at the planning table. In other words, planning law is being asked to do much the same job that advertising law is also being asked to do, which is bad news if you make your living selling chips. However, as an advertising lawyer, I've long argued that advertising bans on their own will not solve the problem, so I think the lessons from Gateshead are interesting. And as a citizen, I am aware that there are numerous cheap takeaway chicken outlets on the main road that serves the large comprehensive school near my house.
The same chapter, "Addressing the obesogenic environment", also deals with advertising and marketing. The Committee notes that UK advertisers spent £46.7 billion last year, of which £680 million went on advertising food and non-alcoholic drink. Sweets, chocolate and crisps alone soaked up £196 million of that, more than a quarter of all traditional food advertising spend, while fruit and vegetables scraped together a mere £19 million. For advertising spending to reflect what we are actually supposed to be eating, spending on fruit and veg would need to increase fourteenfold.
The Committee's central complaint is that the current rules only catch adverts for specific LHF products, not the brands or ranges that sell them. As witnesses pointed out, a purple wrapper can still fill our screens at any hour, even if the Dairy Milk bar inside cannot be named. The Committee wants brand and range advertising brought within scope as soon as possible, a ban on all outdoor advertising of HFSS products by July 2027 (not just the sub-set of LHF products), and a consultation on extending restrictions to sports sponsorship, social media, online gaming and those slightly unsettling app notifications that tell you a large fast food company has forty per cent off just as you are walking home hungry.
Unsurprisingly, the advertising industry is not thrilled. Richard Casofsky, the IPA's Director of Public Affairs, said: "The IPA is disappointed by the Committee's recommendation to expand advertising restrictions. The report does not provide convincing evidence that further restrictions would reduce obesity or improve public health outcomes. Policy makers should focus on interventions that are proven to work and are grounded in robust evidence."
The medical profession sees things rather differently. Professor David Strain and Dr Heather Grimbaldeston of the BMA said: "The Committee is right to recognise the disproportionate influence that the food industry has had over public health policy. Time and again, evidence-based measures such as restrictions on junk food advertising and limits on multibuy promotions for unhealthy foods have been delayed, watered down or abandoned following industry pressure. Meanwhile, doctors, public health experts and families are left dealing with the consequences."
Both sides make a fair point, which is exactly the sort of thing that keeps advertising lawyers gainfully employed. But here is the irony that nobody in Westminster seems to have properly chewed over. While the Committee wants to widen the net around crisps and fizzy drinks, our law makes it extraordinarily difficult to advertise weight-loss medicines at all, because they remain Prescription Only Medicines. The Medicines and Healthcare products Regulatory Agency actively enforces that restriction, and enforces it firmly. This is happening just as an oral version of a weight-loss drug has been approved, potentially the most consumer-friendly format yet for a treatment that, unlike a fourteenfold increase in broccoli advertising, is actually backed by robust clinical evidence.
If Parliament is serious about using advertising law to fight obesity, perhaps it should look at both sides of the scales. Restricting the marketing of a chocolate bar is one lever. Allowing responsible information about a clinically proven treatment to reach the people who might benefit from it is another. At the moment, we have plenty of appetite for the first and none whatsoever for the second. And that really takes the biscuit.
