The nanny state's new food frontier

The nanny state is alive and well in Australia. In Canberra recently, the tobacco plain packaging legislation passed through parliament and the Greens introduced a bill to censor "junk food" advertising directed at children. These events, by themselves, would be enough to have the advertising executives in Mad Men reaching for another drink or a smoke.

But back to the real world. These two events signify the expropriation of commercial rights of brand owners to promote their products. Is this another step towards tobacco-like regulation for the food industry?

There is no question that childhood obesity is a serious problem with significant implications for life expectancy, quality of life and health costs. But there is a serious question about the impact measures contained in the bill will have in preventing childhood obesity and enabling healthy eating habits.

The bill bans the advertising of unhealthy foods to children on free to air television, pay television, the internet and mobile phones. What is an "unhealthy food"? The government will legislate what is "healthy" or "unhealthy" through nutrient profile criteria. This criteria is not yet available, but it is a fair bet that the criteria adopted will be similar to criteria proposed for front-of-pack traffic light labelling. This criteria can produce strange results on which products are healthy or unhealthy.

Who is a child? The bill says it is a person under the age of 16 years. So, at the top end of that age group, you can drive and have consensual sex in most states, but food advertising is too dangerous. Surely, if the bill is to proceed, the age limit should be lowered to a pre-teen age.

To use an example of the bill in action, the bill could prevent an advertisement for chocolate appearing on a weekday at 9.05pm during a re-run of The Simpsons. The reason is that unhealthy food advertisements must not be 'directed to children'. And to be directed to children, the advertisement need only be 'likely' to appeal to children. Forget that The Simpsons is just as likely to appeal to adults as it is to children.

The bill has implications for the legitimate promotion of a corporate brand, as opposed to a product brand. Companies which have one product in their portfolio that is "unhealthy" cannot broadcast corporate, as opposed to product, messages in specific time slots, whether directed at children or not.

The bill is inspired by a report released in May this year by the Obesity Policy Coalition. The Coalition was formed in 2006 and is a partnership between the Cancer Council Victoria, Diabetes Australia – Victoria, VicHealth and the World Health Organisation Collaborating Centre for Obesity Prevention at Deakin University.

Many of the Coalition's recommendations find their way into the bill. Sensibly, the bill does not adopt some of the ultra-extreme proposals from the Coalition, such as banning premiums and product placement, restricting where unhealthy products can be sold in store, defining a child as under 18 years, and applying the restrictions to all forms and locations of advertising. The Coalition's report says that the current self-regulatory approach has failed, but there is no compelling data or evidence to suggest this failure or that censorship of food advertising will produce healthier eating habits.

Last week, South Australian Health Minister, John Mill, called for a ban on the advertising of unhealthy foods to children. He attacked the food industry and its marketing codes, asserting those codes are not working.

If only winning the battle against the bulge was that easy. There are no silver bullet solutions. This bill will not do the trick. Obesity is a lifestyle disease which requires a multi-faceted approach including enhanced exercise and education programs, and perhaps more stringent enforcement and sanctions under the existing self regulatory regime.

There is something profoundly sad about the last week of parliament for 2012, in which the tobacco plain packaging legislation passed and the Greens' junk food advertising bill was introduced. Each new piece of government regulation which fills the space where individual responsibility once played diminishes our collective self-esteem by recognising our inability to control our own lives at the most basic level.

David Watson is a corporate partner in the food and agribusiness team at Baker & McKenzie.