Food advertising and self-regulation: A view from the trenches
Janet Hoek, Department of Marketing, College of Business, Massey University, Private Bag 11-222, Palmerston North, New Zealand. Fax: +64 6 350 2260; e-mail: J.A.Hoek@massey.ac.nz
Objective: This study assessed the logic of arguments advanced when the New Zealand advertising self-regulation complaints board adjudicated a complaint about a food product; in addition, it compared these arguments and the complainant's experience of the process to international best practice criteria relating to independence.
Methods: Documents relating to a complaint about chicken nuggets were analysed. Shuy's logical framework was used to analyse the arguments advanced; the case was subsequently compared to the best practice criteria advanced in the Madelin (2006) report.
Results: Even a well-informed and expert complainant found the system difficult to use and biased in favour of the advertiser. Analysis of rhetorical strategies used to respond to the complaint reveal use of fallacious reasoning, including ad hominem, to which the complainant was unable to respond.
Conclusions: In the case reviewed, the New Zealand self-regulatory system did not meet the level of openness, independence or transparency that the complainant expected and that are listed as “best practice” criteria in the Madelin Report. A regulatory system run by a government agency could afford greater protection to complainants and consumers and offer a more balanced adjudication process.
Implications: As the prevalence of obesity increases, governments are examining how effectively regulation controls marketing activities that encourage consumption of energy dense, nutrient poor foods. This paper raises timely and important questions about the balance and fairness of self-regulation as experienced by a complainant.
Many researchers have argued that the increasing incidence of obesity among young people has reached epidemic proportions.1–2 Yet, while the causes of obesity are easily identified – consumption of food unmatched by energy expenditure – considerable disagreement still exists over how consumers’ eating patterns and exercise habits develop and evolve, and to what extent marketing influences these.3
Emerging evidence suggests that increased consumption of energy-dense, nutrient poor (EDNP) foods is the most likely explanation of the rapid increases in obesity observed over the past three decades.4–6 Since marketing stimulates and reinforces behaviour,7 this evidence has prompted calls for restrictions on food marketing, particularly the widespread advertising of EDNP food products.8 However, although public health researchers favour a ban on the promotion of high fat, salt and sugar foods, industry groups have argued strongly for maintenance of the status quo, which is based on industry self-regulation.9–10
Before industry self-regulation can be accepted as an appropriate regulatory model, the level of consumer protection it affords, and complainants’ experience of it, must be critically evaluated. This paper analyses the arguments advanced in a recent complaint over an advertisement that allegedly promoted unhealthy eating behaviour. The arguments, and the process used to assess these, are then examined to analyse whether self-regulation supports the social and environmental change required to reduce obesity, and complies with international best practice for advertising self-regulation.
Self-regulation and food advertising
Many Western countries, including the United States, Australia and New Zealand, have adopted a self-regulatory approach to advertising, where advertisers themselves develop and promulgate codes of practice and deal with any alleged breaches of these.11 Proponents of self-regulation claim it offers a speedy complaints process, relies on industry (rather than government) funding, places a heavier burden of proof on advertisers, and can adapt quickly to changing social values and mores.12 They argue that the threat of government intervention is sufficient incentive to ensure advertisers comply with the codes of practice.13 Furthermore, they argue that modern self-regulatory systems meet best practice criteria by having written codes, effective complaint receipt, hearing and audit processes, providing industry education, and creating high public awareness of the system.14–15
Robert Madelin, Director General of the Health & Consumer Protection Directorate General (DG Sanco), engaged in roundtable discussions with representatives of the advertising and media industries, and consumer and health NGOs, to review advertising regulation in the European Union. The discussions were based on an earlier document, the EASA Advertising Self-Regulatory Charter and principles arising from this that were outlined in a white paper presented to DG Sanco's Commissioner Kyprianou in February 2005. The report outlining the roundtable discussions presented criteria that participants agreed characterised effective self-regulatory systems.16Table 1 below summarises these criteria.
Table 1. Madelin Report Self-Regulation Effectiveness Criteria.
|Effectiveness||• Offer copy advice to advertisers.|
| ||• Set specifc performance benchmarks.|
| ||• Provide clear access to complaint routes; this should be a benchmark and assessed.|
| ||• Publish decisions.|
| ||• Establish minimum training standards for new staff.|
| ||• Develop clear and effective sanctions for non-compliance.|
| ||• Ensure that requirements to withdraw advertisements are implemented comprehensively.|
|Independence||• Promote openness, independence and transparency.|
| ||• Ensure stakeholders contribute to code development.|
| ||• Monitor codes to ensure these meet society's expectations.|
| ||• Have a substantial proportion of independent people on complaints boards.|
| ||• Ensure conficts of interest are declared.|
| ||• Assist businesses to recognise the benefts of an independent presence at all levels of the complaints process.|
|Coverage||• Cover all forms of marketing communication|
| ||• Monitor trends in new communications media to ensure these are subject to self-regulation rules.|
| ||• Recognise the need for legislative underpinning of self-regulation.|
| ||• Ensure on-going monitoring of new trends and ensure concerns are managed either by self-regulation or other approaches.|
|Funding||• Promote political support for industry voluntary funding.|
The New Zealand self-regulatory system, which has operated in its present form for nearly two decades, meets several of the criteria listed in the Madelin report. For example, it provides some copy advice and has facilities that pre-vet alcohol and therapeutic advertising. Decisions are released to the media and these, together with details of how to lodge complaints, can be accessed via the Advertising Standards Complaints Board website (ASCB). The ASCB also monitors complaint processing times, which averaged 22 days in 2006, and claims 100% compliance with its rulings.17–18
Although the Australian Advertising Standards Bureau (ASB) uses a different structure (it employs an Advertising Standards Board and an Advertising Claims Board to differentiate between public and competitor complaints), it shares many characteristics with its New Zealand counterpart. However, while the ASCB and ASB can claim success in meeting some of the Madelin report standards, both are reactive and a complaint must be laid before an advertisement is reviewed. Even with an average processing time of 22 days,17 campaigns may conclude before decisions are issued.19 As the only sanctions involve withdrawal of advertising, advertisers whose promotions transgress the codes may avoid incurring any penalty at all, leading critics of self-regulation to view this model as weak and ineffective.19
Both the Advertising Standards Authority (ASA) and the ASB periodically revise their Codes and seek stakeholder submissions to inform this process; however, the extent to which stakeholders’ views are reflected in the revised codes remains a matter of debate.20 For example, although the ASA has commissioned research to estimate consumers’ awareness of their complaints service, a search of their website and recent annual reports provided no evidence of whether an independent appraisal of users’ satisfaction with the service had been undertaken. Similarly, although a more formal process for appointing public members to the Complaints Board is outlined in the 2006 Annual Report, this process is dominated by industry members.17 Thus, while the ASA has taken steps to meet the independence criteria, there appears to remain a discrepancy between the outcomes and some stakeholders’ expectations.
This discrepancy is important, since independence is arguably the most important of the Madeline Report criteria in fostering public trust in the complaints process. This trust has come under increasing scrutiny as the relationship between food marketing and obesity has been analysed.6,21–28 Garvin (1983) presaged concerns when he noted: “self-regulation does not have to be perfect; it need only ‘elevate the performance of the industry to the point where it does not represent a relatively attractive target to the resource constrained regulatory agency’.”29 These comments have led critics to question whether self-regulation is sufficiently disinterested to provide adequate oversight of advertising that may affect public health.30 They conclude that self-regulation cannot place consumers’ interests above corporate profitability, and suggest only government intervention can ensure dispassionate and effective advertising regulation.31
Opponents of self-regulation claim that relying on the same parties to act as judge, jury and defendant is inherently compromised. Analyses of the former Australian self-regulatory system reveal advertisers’ circumvention of the advertising codes.14 Practices included requiring rivals to reveal sensitive market information as part of their defence, and using complaints to force competitors to amend advertisements, thereby disrupting their media schedule and increasing their production costs.14 Harker also observed that advertisers would schedule controversial advertisements to coincide with council meetings, since this allowed “4 weeks of freedom and free publicity” (2003, p.108).14 These findings fuelled calls for government intervention, although these have yet to elicit formal responses.30–32
Despite this evidence, advertisers maintain that self-regulation is both viable and effective, and have indicated their willingness to help address health problems, such as obesity.33–35 However, concern over the effectiveness of self-regulation remains. As Mayer (2005) commenting on the United States’ self-regulatory system, noted: “The [Children's Advertising Review Unit] says it is a watchdog, but it is empowered to do things so small you need a scanning electron microscope to see it.”36
Although researchers have examined the macro-level design and implementation of self-regulation, less is known about users’ experience of complaints procedures. As the Madelin Report points out, to function properly, self-regulatory systems should be accessible, and potential complainants should find the process open, independent, transparent and easy to use.37–38 These criteria are especially important where the complaint concerns public health, thus the research report below examined a complaint made using the NZ self-regulatory system to assess how well these criteria were met. We addressed the following general research questions:
RQ1: What experiences did a recent complainant about food advertising have and what implications do these have for regulatory enhancements?
RQ2: What arguments and rhetorical strategies were used to promote and counter public health concerns and how influential did these appear to be?
RQ3: How effectively did the self-regulatory system meet the criteria of independence outlined in the Madelin Report?
Our research examined a complaint made in May 2005; we review the complaint process, and examine a complainant's experience of the self-regulatory system. In addition, we analyse documents submitted by the different parties, particularly the rhetorical strategies used in these, as the use (or mis-use) of logic can potentially be persuasive in quasi-legal settings, such as the Advertising Standards Complaints Board. This approach has been used to analyse tobacco industry documents and enables an evaluation of the logic used to create precedents that are applied to subsequent cases.39–41
The advertisement in question promoted chicken nuggets and featured a young boy acting as an advocate for his sister, with whom he was hiding in a tree hut. The dispute concludes, and the children agree to leave the tree hut, when the parents agree to a deal that requires them to serve chicken nuggets “4 nights a week and [for] lunch on Sundays”. The advertisement finished by showing the children eating chicken nuggets together with vegetables; a screen visual stated that the product is made with “real chicken breast” and a voice over reiterated this point.
The complainant argued that the advertisement encouraged children to blackmail their parents and showed a successful example of this strategy. She also noted the advertisement depicted the parents as weak and ineffective, suggested the advertisement justified acceding to children's requests, even when these were inappropriate, and that it made regular consumption of an “occasional” food appear normal (and thus appropriate). In summary, she concluded that the advertisement ran counter to government “healthy eating” guidelines that had been recently issued as part of a broader initiative to reduce obesity.
The advertising agency responded by arguing that the advertisement was “an exaggerated, light hearted look at family life” (p. 3) that was not designed to show a “real” situation.42 In addition, the advertiser noted the nuggets were served with vegetables as part of a balanced meal and eaten during a happy family meal time. Rather than depicting the manipulation of parents by their children, the advertiser argued the advertisement showed children acting in a “clever or smart manner”.42 The agency commented on their target market, endorsements the product had, and the advertisement classification, to support their argument that the advertisement did not breach the social responsibility provisions of either the Code for Advertising of Food or the Code for Advertising to Children.43 The agency also cited research suggesting that more than 1.5 million adults had seen the advertisement and noted that, of this audience, only one had complained. They also quoted from an individual who, after reading press coverage of the complaint, wrote to the advertiser to praise the “fun and witty” advertisement.42
In New Zealand, television commercials are reviewed by the Television Commercials Approval Bureau (TVCAB) before airing and the TVCAB was invited to comment on the complaint on behalf of the media. Their response expressed “concern” that they could have approved something that had allegedly transgressed the Codes “so blatantly and grossly” and argued that the complainant had been “subjective” and relied on “personal opinion”.42 The TVCAB disputed use of the word “blackmailing”, claiming that the children negotiated with their parents.42 The term “occasional food” was also disputed; the TVCAB argued that five chicken nugget meals a week was not excessive, given that people ate 21 meals a week.42
In reviewing the complaint and responses to it, the Advertising Standards Complaints Board found that the advertisement was not aimed at children and thus did not consider whether it met the “high standard of social responsibility” called for in the Code for Advertising to Children.43 It agreed with the TVCAB's submission that chicken nuggets were not an “occasional” food and found that the advertisement depicted an “interactive dialogue” rather than blackmail.42 Following this reasoning, it rejected the complaint.
The documents submitted by the respondent parties employ several rhetorical devices. First, they redefine and minimise the problem outlined by the complainant; the advertisement, they argue, does not depict blackmail or manipulation, but is “light hearted” and “humorous”.42 The TVCAB used hyperbole to overstate the complainant's case and undermine and belittle her argument. She did not refer to “blatant or gross” transgressions; however, by re-casting her arguments in extreme terms, the TVCAB is better able to counter these. This approach employs the ‘straw man’ fallacy and constructs a case that does not reflect the intent or substance of the actual complaint, but that can easily be dismantled.39
In a further instance of the ‘straw man’ fallacy and redefinition strategy, the TVCAB argues, “Suppression, repression and restriction are not the way of modern parenthood. Neither is child anarchy”.42 However, the complainant did not refer to “Suppression, repression, restriction” or “child anarchy”; use of emotive terms such as these suggests the complainant is extreme and enables her arguments to be both overlooked and more easily dismissed.
The agency rejected the complaint as representing only one view out of a potential 1.5 million; this implies either that the advertisement cannot be offensive or that a complaint should not be upheld unless multiple complaints are received. Neither of these interpretations is logically tenable. First, the ‘one voice’ fallacy proposes a false relationship; it implies that, because only one complaint has been received, the complaint cannot have substance. In fact, whether a complaint is upheld depends not on the number of complaints received, but on the merit of the arguments presented. Second, the self-regulatory system relies on the fact that only one complaint need be received for an advertisement to be upheld. A defence that relies on the number of complaints received challenges the very premise on which self-regulation depends. Finally, it is logically inconsistent to argue, on the one hand, that one complaint cannot indicate a problem and yet, on the other, to cite one consumer's favourable reaction to claim that the advertisement is not problematic. This suggests that positive feedback should be more influential than negative feedback, irrespective of its content or the expertise of the individuals voicing views.
The TVCAB reduced the status of the complaint by describing it as “very much a personal opinion” and disputed the complainant's use of terms such as “occasional”, “everyday” and “normalisation”, which are described as “clearly personal” and unsupported by “any generally accepted interpretations or research”.42 This strategy verges on an ad hominem attack as the complainant is an NZ registered nutritionist with nationally recognised expertise. Her professional standing is ignored and the TVCAB presents no evidence to suggest why the terms “occasional” and “everyday” are inappropriate. By challenging not the substance but the articulation of the argument, the TVCAB deflected attention away from the issue the complaint raised: excessive consumption and the causal link between this and obesity.
The complaints process does not provide complainants with an opportunity either to respond to the challenges levelled at their arguments or to dispute the respondents’ claims; the only alternative is to appeal the decision, a process that requires new evidence and that may thus preclude counter argument. The complainant's appeal responded to the description of her arguments as “personal” and “subjective” and included support from more than 30 health professionals who endorsed the complaint, the terminology used to express this, and the wider health implications of the product promoted. The ASCB held that the appeal was “not new evidence but a new argument for a new complaint”. A new complaint presenting the new argument was upheld nearly six months after the original complaint had been submitted; thus by the time the advertisement was withdrawn, it had arguably run its course.
This case was clearly more complex than those the ASCB typically deals with, which may explain why the entire process took longer than the average processing time outlined in ASA Annual Reports. However, although complexity may explain one deviation from the Madelin guidelines relating to effectiveness, other deviations are less easily explained. In particular, the “openness, independence and transparency” criterion does not appear to have been met. As these attributes are critical to the development of public trust, evidence that the complainant was personally denigrated and her claims mis-represented in exaggerated terms, should be of serious concern to government, which has devolved responsibility for advertising regulation to the industry itself.
Increased scrutiny of food marketing and comparison of food industry tactics to the tobacco industry's strategies has strengthened calls for stricter regulation of food marketing.44 Although the advertising industry favours self-regulation, an effective system must be accessible, simple, and user-friendly.38 Analysis of a recent complaint suggests these criteria were not met. The decision drew strongly on industry submissions, which used rhetorical strategies to undermine the complaint and the complainant. As complainants cannot respond to these submissions before the hearing, and because the ASCB membership does not include nutrition experts, industry claims remain unchallenged unless an appeal is made. Since appeals can only be made in very specific circumstances, claims are often accepted at face value and so may appear more persuasive than if they had been rebutted.
Changes to self-regulation could ameliorate these problems. Reliance on independent expertise would add rigour to the decisions issued and could increase confidence in the system. Introducing injunctive measures to halt advertising against which a prima facie case has been established could afford higher levels of protection, particularly where public health matters are concerned. However, more fundamental changes may also be required as, in this example, considerable tenacity and self-motivation was required to pursue the case through the appeal process.
Our analysis does not prove that self-regulation is ineffective; however, it raises serious questions about the level of protection self-regulation affords to consumers, particularly where public health problems are concerned. Advertising promoting foods high in fat, salt or sugar reinforces the obesogenic environment, which in turn militates against the behaviour change required to achieve social goals. In these circumstances, government intervention is the most rapid and effective means of creating an environment that supports healthier eating. Government directed regulation could require higher standards of advertisers and could also include sanctions that would promote compliance. Where these measures failed to bring about social change, governments should restrain marketing activities that contribute to increased consumption of energy dense and nutrient poor foods. These suggestions, which are reflected in Clause 374 of the Public Health Bill currently before the New Zealand Health Select Committee, are vital if a regulatory system that protects all parties and recognises the precedence of public health over profit, is to be achieved.