Khoo, Daniel --- "Regulating the Use of Cartoon Character Advertising on Product Packaging of Unhealthy Foods in Australia to Protect Children's Health: Legal, Political and Practical Challenges" [2022] UNSWLawJlStuS 18; (2022) UNSWLJ Student Series No 22-18

	Home \| Databases \| WorldLII \| Search \| Feedback University of New South Wales Law Journal Student Series

REGULATING THE USE OF CARTOON CHARACTER ADVERTISING ON PRODUCT PACKAGING OF UNHEALTHY FOODS IN AUSTRALIA TO PROTECT CHILDREN’S HEALTH: LEGAL, POLITICAL AND PRACTICAL CHALLENGES

Child-directed marketing describes the targeted use of marketing strategies to influence a child’s consumption patterns. Within the food and beverage industry, child-directed marketing is conducted across various mediums with advertisements appearing in television broadcast, print media and social media platforms. Reflecting a societal awareness of the impact of mass media on children in Australia, child-directed marketing through television, radio and print is subject to regulation either through legislation such as the Broadcasting Services (Australian Content and Children’s Television) Standards 2020 or industry-led self-regulation such as the Responsible Children’s Marketing Initiative.

Within the broader context of advertising, the regulatory scheme in Australia fails to acknowledge the capacity of product packaging as a form of point-of-sale advertising to children. At present, food and beverage companies utilize the product package as an unregulated channel of advertising which occurs both at the point-of-sale (supermarkets) and at the point of consumption, using techniques such as cartoon characters, gifts and games.

This essay examines the industry practice of cartoon character advertising on food product packaging, as it embodies the intersection between child-directed marketing – a field of advertising which has received substantial levels of attention and regulation in other media, and food product packaging – a channel of advertising which has remained largely unnoticed and unregulated.

Serving as a possible model which Australia can follow, the ‘critical nutrient’ laws of Chile are considered and appear promising in reducing the use of child-directed marketing on product packaging. In contemplation of a restriction on the use of cartoon characters on product packaging of unhealthy food (hereafter referred to as ‘cartoon character advertising restriction’), this essay considers whether a similar restriction would be feasible in Australia.

The array of viable legal challenges to a restriction on cartoon character advertising on product packaging mirrors the challenges raised in response to Australia’s tobacco plain packaging laws. Applying settled principles from the tobacco litigation cases, none of the legal challenges are likely to materially prevent the enactment of such a restriction. However, Australia should remain wary of industry resistance in the form of lobbying and pre-emptive introduction of ineffective self-regulation which present political challenges and could substantially delay the implementation of such a restriction.

Despite these challenges, I argue that a restriction on child-directed marketing on food packaging could operate as an important part of a suite of policy measures to address childhood obesity in Australia and could be operationalised through minor modifications to Australia’s Health Star Rating System. Following Chile’s example, implementation of similar regulation in Australia could make an important contribution to protecting children’s health.

The argument for greater restriction on the use of cartoon character advertising on product packaging of unhealthy food is grounded with three premises:

In Australia, cartoon characters commonly appear on food product packages designed to visually appeal to children.^[1] Most recognisable are licensed characters such as Coco (Coco Pops), Toucan Sam (Fruit Loops) and movie characters such as SpongeBob or Shrek appearing on food packaging. Cartoon mascots appear most frequently on breakfast cereal but can also be found on a variety of products including ice-cream, confectionary and savoury snacks. Typically, product packaging is one of many channels of promotion within a larger advertising campaign, with the same mascots appearing across television broadcast, books, toys and clothing. This multi-platform cartoon-based promotional strategy has been well researched, and is known to create brand loyalty, influence preferences and drive impulse purchases.^[2]

While parents make the food purchasing decisions for the household, the literature identifies ‘Pester Power’ (otherwise known as ‘Nag Factor’) as the mechanism through which children can exert influence over purchasing decisions. In a typical scenario, a child will have been exposed to a product package which contains visual elements designed to attract their attention: a cartoon mascot, bright colours and playful imagery. These elements shape the product’s ‘branding’; reinforcing positive emotional associations of fun and happiness which skews consumer preferences toward the product.^[3] Relevantly, the placement of cartoon characters on food product packaging has been found to significantly increase a child’s perceptions of taste and preference for the food.^[4]

Following the child’s initial exposure and subsequent preference toward the advertised product, ‘pester power’ describes a child’s behaviour of repeatedly requesting that their parents purchase the product.^[5] While children cannot dictate purchasing decisions, they can exert significant pressure through repeated nagging, tantrums or emotional manipulation by flattering or voicing hate for the parents.^[6] In turn, parents may purchase the product simply to gain relief from the pestering or simply because they can be assured that their child will eat the food.

In the context of cartoon character promotion, the pester power mechanism explains the process through which a child’s exposure to an advertised product results in the subsequent purchase and consumption of a product.

While the use of cartoon characters as a promotional strategy may not pose any intrinsic ethical or moral issues, public health concerns arise because of the particular type of foods which these strategies are applied to. At present, there is a tendency of cartoon character promotion to be applied overwhelmingly to promote unhealthy foods. Typically these foods have undesirable nutrient compositions, containing high levels of fat, sugar and salt (‘HFSS’). The tendency of cartoon character advertising to promote HFSS foods has been well documented both in Australia^[7] and internationally.^[8] A potential reason for this selective promotion of unhealthy foods is that while cartoon character promotion increases a child’s preference for the advertised food, this effect has been observed to be most powerful for energy dense, nutrient poor foods.^[9]

C Children’s Exposure to the Advertising of Unhealthy Foods Leads to Poorer Health Outcomes

Until cartoon character advertising appears equally on healthy and unhealthy foods, the trend of their use to promote unhealthy foods gives rise to a public health concern. Clear evidence indicates that the advertising of unhealthy food has a measurable effect on a child’s food consumption patterns, preferences, purchases, and ultimately, diet-related health.^[10] As children consume larger amounts of energy-dense HFSS foods, the surplus caloric intake contributes to childhood obesity and the development of noncommunicable diseases.

In response, Australian law makers should proactively limit the use of child-directed marketing of unhealthy foods as a measure to protect children’s health. In particular, a restriction on the use of cartoon characters on product packages of unhealthy foods presents a viable opportunity.

III CURRENT STATE OF REGULATIONS ON CHILD-DIRECTED MARKETING ON PRODUCT PACKAGING

Product packaging serves a variety of purposes, from protection of the product, provision of information for consumers, to the marketing of the product itself. While product packaging is well recognised as an important channel for the marketing and advertising of a product,^[11] the current regulatory system in Australia fails to adequately regulate this aspect of the product package.

In Australia, food product packaging is generally regulated through mandatory standards contained in legislation such as the Australia New Zealand Food Standards Code. Where food product packaging incorporates child-directed marketing, voluntary codes and initiatives created by industry are the primary sources of regulation. This reflects the Australian government’s preference for self-regulation in the domain of child-directed marketing, especially evident in forms of media such as television.^[12] The Australian laws which do apply to product packaging focus on elements such as the nutritional claims made, failing to regulate the practice of child-directed marketing through techniques such as cartoon characters, games or contests.

Part 1.2 of the Australia New Zealand Food Standards Code sets out labelling requirements for food packaging, to ensure that consumers receive information about the safety and composition of a product. The provision which lies in closest proximity to regulating advertising claims is Standard 1.2.7, which limits the extent to which positive health claims can be made. For example, it prohibits labelling claims that a food is therapeutic in nature or has slimming effects.^[13] It also limits the ability of unhealthy foods to make health claims by requiring foods to pass a ‘nutrient profiling scoring criteria’ that evaluates healthiness before becoming eligible to make such claims. This reflects a greater regulatory focus on claims which are informational in nature (e.g., a written claim “low in fat”), overlooking the emotion-based appeals which child-directed marketing relies on (e.g., a cartoon monkey grinning at a bowl of cereal). Apart from Standard 1.2.7, the Australia New Zealand Food Standards Code does not attempt to regulate the promotional function of product labelling and packaging. As a result, the current Food Standards Code fails to regulate the practice of child-directed marketing used to promote unhealthy foods.

The Australian Consumer Law (‘ACL’) contains prescriptions against false, misleading and deceptive conduct.^[14] To prove a contravention of this law, there needs to be (1) evidence that a representation was made; (2) which was false, misleading or deceptive. While the ACL was not specifically created to regulate food advertising, it nevertheless applies to the advertising of foods.

Its application to food product packaging was explored in a 2018 action which the ACCC brought against Heinz under the misleading and deceptive conduct provisions. Here, the court recognised the potential of cartoon imagery to convey positive health implications,^[15] noting that the product packaging of Heinz’s Little Kids Shredz products represented the food as being nutritious and beneficial to the health of children. A breach of the ACL was found as 68.7% of the product was sugar in the form of apple juice concentrate and fruit paste, and therefore not beneficial to the health of children. The court considered both the written claims on the packaging, as well as the cartoon depiction of a healthy young boy climbing a tree which conveyed impressions of vitality and healthy growth.^[16] These elements of the product package were misleading and deceptive as they falsely represented the product as being healthy.

While the false, misleading and deceptive conduct provisions prevent food manufacturers from overtly representing unhealthy food as being healthy, its use as an instrument against child-directed marketing is limited. In the case of child-directed product packaging, these often incorporate a cartoon mascot, bright colours and playful imagery to reinforce associations of enjoyment and happiness. Within the language of marketing, these advertisements are ‘emotional’ in nature, as opposed to ‘informational’ in nature.^[17] Relevantly, the ACL prohibits false, misleading or deceptive representations (reliant on informational claims of the product), which turn out to be false. In the 2018 Heinz case, the product package was misleading because it communicated that it was a beneficial product for children (constituting an informational claim), when it was not. Most child-directed products lie outside of the ambit of the false, misleading or deceptive provisions as they rely on emotion-based appeal rather than informational claims about the product. As a result, the ACL’s focus on misleading informational claims leaves the majority of child-directed advertising unaffected and unregulated.

B Industry-Led Self-Regulation of Child-Directed Marketing in Other Forms of Media

The Australian government has encouraged industry-led self-regulation as the primary control over child-directed marketing, even though it has proven ineffective on an international scale.^[18] In 2008, the Australian Communications and Media Authority prompted the food industry to address community concerns regarding the advertising of unhealthy food products to children.^[19] This resulted in the Responsible Children’s Marketing Initiative (RCMI), which is still in place today. Subsequent research discovered the RCMI to be ineffective; finding that during peak television viewing times for children, signatories to the RCMI advertised unhealthy food products at a higher rate than non-signatories.^[20] Despite this, reviews conducted by industry bodies have reported high levels of compliance with the RCMI.^[21] A likely reason for these drastically incompatible findings is that compliance is self-monitored and self-reported by the individual companies, lacking independent oversight or verification.^[22]

Today, the main source of child-directed marketing regulation remains industry-led codes and initiatives. These include the Responsible Children’s Marketing Initiative,^[23] the Children’s Advertising Code^[24] and the Food and Beverages Advertising Code.^[25] All three codes explicitly state that they do not apply to product packages. As such, the only regulation affecting child-directed product packaging comes from the ACL through its misleading and deceptive conduct provisions – a blunt tool at best.

Divergent objectives between industry and government explain the deficiencies of the current system self-regulation. For the food industry, self-regulation presents an opportunity to gain trust from consumers and government by demonstrating initiative in protecting consumers.^[26] However in a situation where government oversight is minimal or absent, industry bodies are incentivised to impose as gentle measures as are necessary to avoid public scrutiny while maximising as much commercial freedom as possible. Because of the structure of incentives, industry-led measures are mostly reactive in nature, addressing public concerns as they arise.

In stark contrast, the public policy aims of government require proactive measures as governments seek to improve the current situation. This is evident in the National Obesity Strategy 2022-2032, which aims to reduce obesity and increase the prevalence of healthy weight in the population.^[27] These public policy aims require improvements in health over time. This creates a disjuncture between industry and government objectives as self-regulation is reactive in nature, inclined on maintaining the current level of commercial freedom and dealing with public scrutiny as it arises.^[28]

While the current schemes of self-regulation can be strengthened to incorporate greater government oversight and involvement (for example through independent monitoring^[29] or threat of stronger government action)^[30] the fundamentally divergent objectives between industry and government would likely prevent impactful change. The current suite of self-regulation operating across other forms of media explicitly exclude food product packaging, and the industry is unlikely to proactively extend its application to product packaging voluntarily.

Noting the interests of the food industry to act reactively to avoid public scrutiny whilst maximising commercial freedom and profitability, the Australian government remains the only actor who is both incentivised and able to make the sweeping policy changes needed to address child-directed marketing on the packaging of unhealthy foods.

Noting the detrimental effect of child-directed marketing on food packaging and the deficiency of current regulations, Australia could learn from innovative examples of regulation. Chile’s regulations limit the use of cartoon characters on the packaging of food products which exceed specified nutrient amounts, as part of a broader set of marketing restrictions.

In 2016, Chile’s ‘critical nutrient laws’ were introduced in response to its rising obesity rate and prevalence of noncommunicable diseases within the population.^[31] Foundationally, Article 5 of Law No. 20,606 creates a labelling obligation for HFSS foods. It states that foods which are “high in calories, fats, sugars, salt or other ingredients that the regulation determines” must be labelled as “high in” calories/fat/sugar/salt.^[32] To define whether a food meets the HFSS category, Decree 13/2015 specifies cut-off levels for calories, salt, sugar and saturated fat. These cut-off levels were introduced in phases and were progressively made stricter over three years.^[33] These cut-off points are reproduced in tables 1 & 2 below. For example, if a food contained more than 275 calories of energy per 100g today, it would be required to display a black octagonal stop sign warning stating, “high in calories.”

Maximum levels of critical nutrients allowed before it activates the label requirements

Critical Nutrient	Effective from 26 June 2015 to 25 June 2017	Effective from 26 June 2017 to 25 June 2018	Effective from 26 June 2018 onwards
Energy (kcal/100g)	350	300	275
Sodium (mg/100g)	800	500	400
Sugar (g/100g)	22.5	15	10
Saturated Fat (g/100g)	6	5	4

Critical Nutrient	Effective from 26 June 2015 to 25 June 2017	Effective from 26 June 2017 to 25 June 2018	Effective from 26 June 2018 onwards
Energy (kcal/100ml)	100	80	70
Sodium (mg/100ml)	100	100	100
Sugar (g/100ml)	6	5	5
Saturated Fat (g/100ml)	3	3	3

Decree 13/2015 standardises the design of the ‘high in’ nutritional warning label, mandating a black octagonal symbol on foods which contain critical nutrient levels in excess of amounts specified in Tables 1 & 2.^[34]

In response, manufacturers may reformulate their foods to reduce levels of salt and sugar for example, to avoid exceeding the critical nutrient levels and avoid triggering the critical nutrient laws. Alternatively, manufacturers must comply with the laws by labelling their HFSS foods with the black octagonal STOP sign as pictured.

Foods and beverages which meet the HFSS criteria set out in Tables 1 & 2 are strictly prohibited from being advertised to children (under 14 years).^[35] This includes a prohibition on ‘commercial hooks’ such as: the use of cartoon characters for marketing, toys which accompany the product, people or animals of interest to children for marketing and depictions of environments which a child would associate with daily life (e.g. school and recess). These apply not only to the product package, but also to digital advertising (television, websites) and print media. Additionally, HFSS foods are not allowed to be distributed for free to children and cannot be sold or advertised in schooling environments.

While the epidemiological success of the critical nutrient laws will only be measurable many years after its implementation, various improvements in the food environment have been observed since the introduction of the ‘critical nutrient’ law:

V CHALLENGES TO THE IMPLEMENTATION OF A RESTRICTION ON THE USE OF CARTOON CHARACTERS ON THE PACKAGING OF UNHEALTHY FOODS IN AUSTRALIA

Section 51(xxxi) of the Constitution confers upon Parliament the power to make laws which result in the acquisition of property on just terms.^[41] A challenge to the constitutional validity of a restriction on cartoon characters appearing on unhealthy food packaging may arise under this section, by characterising a company’s licenced character as intellectual property which has been acquired by the government.

A similar challenge was put before the High Court in the case of JT International SA v Commonwealth of Australia. The legislation in question was the Tobacco Plain Packaging Act which required companies to display graphic health warnings on significant areas of tobacco packaging and prohibited the use of brand logos and trademarks.^[42] It was argued that this constituted an acquisition of intellectual property rights without just terms, contravening s51(xxxi) of the Constitution.^[43]

Here, the High Court distinguished between the taking of property and the acquisition of property; where the acquisition of property is a higher bar. While taking merely involves the deprivation of property from its owner, acquisition requires a proprietary benefit be received by the acquirer (in this case the Commonwealth).^[44] Here it was argued that the Commonwealth obtained the benefit of ‘control’ over the product package^[45] and the benefit of an expected reduction in expenditure on health care.^[46] These arguments were unsuccessful as the appellant was unable to prove that any proprietary benefit received by the Commonwealth.^[47] As a result, no acquisition of property had occurred and the appeal was dismissed.

Similarly, a challenge to a restriction on cartoon character usage under s51(xxxi) of the Constitution is unlikely to be successful as the same reasoning would apply. The Commonwealth does not gain any proprietary benefit from the removal of cartoon characters from product packaging.

ii. The restriction on the use of cartoon characters on the packaging of unhealthy foods prevents companies from exercising their right to use their trademark (Article 16.1, TRIPs Agreement)

Article 16.1 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (‘TRIPs agreement’) confers upon the owner of a trademark the exclusive right to prevent all third parties from using the trademark on similar goods or services.^[48] In the Australian Tobacco Plain Packaging dispute before the World Trade Organization, it was argued that article 16.1 was intended to ‘protect the distinctiveness’ of a trademark, and any prohibition on its use would diminish the distinctiveness of the trademark and the scope of article 16.1.^[49] Following this, it was argued that article 20 confers both a positive right to use the trademark and a negative right to exclude others from the use of the protected trademark.^[50] If successfully argued, this same reasoning would preserve a positive right to use cartoon characters on food packaging as licenced characters constitute an asset in the intellectual property portfolio of a company.

Reinforcing the legal consensus on this issue,^[51] the appellate body found that the TRIPs agreement does not confer positive rights of use over a trademark.^[52] Rather, a strict interpretation prevailed; finding that article 16.1 only conferred the negative right to prevent others from the use of one’s trademark.

This decision ensures governments that; regulation which restricts the use of a trademarked asset is legally compatible with article 16.1, even if the trademark is central to a product’s branding. Such a decision has created a valuable opportunity for government health policy, allowing for the implementation of regulations which can restrict the industry’s use of trademarked assets based on public health objectives. Within the domain of child-directed marketing, this is particularly useful as brand awareness and loyalty is central to the efficacy of child-directed marketing.^[53]

Article 2.2 of the Technical Barriers to Trade agreement (‘TBT agreement’) states that technical regulations should not be more trade restrictive than necessary to fulfil a legitimate objective.^[54] A law which regulates the use of cartoon characters on product packaging would constitute a technical regulation under the TBT agreement, which is defined specifically to include regulations about the labelling and packaging of a product.^[55] As such, it may be argued that a restriction on the use of cartoon character advertising is more trade-restrictive than necessary to fulfil its public health objective.

1. A legitimate objective motivating the proposed regulation needs to be identified;

2. Necessity test: Consideration needs to be given to whether the legitimate objective can be achieved through less trade-restrictive measures. If the policy objectives of a proposed regulation can be achieved through less trade-restrictive measures, the regulations are considered to be more trade-restrictive than necessary,^[56] in contravention of article 2.2.

A restriction on the use of cartoon characters on the packaging of unhealthy foods would be justified through the process as identified in Part 1 of this paper. In short, cartoon character promotion is harmful for children’s health as it is overwhelmingly used to advertise unhealthy food and is effective in steering consumption patterns, preferences and purchases towards HFSS foods. Consequently, a cartoon character restriction would be justified under the ‘protection of children’s health’.

However under the ‘necessity’ component of article 2.2, it may be argued that the policy objective can be achieved through less trade-restrictive measures. Proponents of this argument would cite the commercial hurdles of having to redesign product packages to remove cartoon characters for export to Australia. Additionally, they may argue that the protection of children from marketing influence can be achieved through less trade-restrictive measures such as educational programs which reinforce the role of making healthy food choices. This emphasis on individual responsibility in making food choices is regularly espoused by the food industry in response to legislative proposals seeking to change the obesogenic food environment.^[57]

Thow et al (2018) highlights the need for a narrow and specific characterisation of the public policy objective motivating the regulation, to narrow the range of alternative ‘less trade-restrictive’ measures.^[58] To successfully justify a cartoon character restriction, the policy objective can be characterised as: a reduction in child-directed marketing on product packaging of unhealthy products (as a measure to protect health). Subsequently, it would be hard to prove the cartoon character restriction as being unnecessarily trade restrictive, due to the limited range of regulations that can achieve that specific child-directed marketing objective. In contrast, consider the broader policy objective of the prevention of obesity to justify a cartoon character advertising restriction. This regulation would be vulnerable to challenge, as there exists a broader range of less trade-restrictive measures which can achieve the obesity reduction objective.

Given the niche function of a cartoon character restriction on product packaging, it is unlikely to be characterised as more trade-restrictive than necessary to achieve its specific aim – where this is strategically designed to highlight the desired reduction of child-directed marketing on product packaging.

ii. The restriction on the use of cartoon characters on the packaging of unhealthy foods constitutes an ‘unjustifiable encumbrance’ to trade, (Article 20, TRIPs Agreement)

Article 20 of the TRIPs agreement states that the use of a trademark should not be ‘unjustifiably encumbered by special requirements’ in the course of trade. In a similar vein to the argument above, this requires a balancing between the public health objective of a regulation and its hindrance to trade. The Tobacco Plain Packaging case before the WTO is instructive because it was argued that Australia’s plain packaging laws would constitute an ‘unjustifiable encumbrance’ to trade. The same argument would apply to a restriction on the use of cartoon characters on the packaging of unhealthy foods.

1. Identifying the nature and extent of the encumbrance resulting from the special requirement;

3. Determining whether the policy objective motivating the special requirement justifies the encumbrance. A special requirement is justified if the motivating policy objective can fairly and reasonably explain the resulting encumbrance.^[60]

Within the Tobacco Plain Packaging case, the encumbrance suffered was the loss of distinctiveness of specific tobacco products, arising from the prevention of the owner’s use of trademarked visual design elements (i.e. logos, fonts and colours).^[61] This encumbrance would similarly apply to licenced cartoon character advertising (in the context of child-directed products), as it serves as the foundation of a product’s brand and helps to distinguish one product from another.

For step 2 of the process, the policy objective was defined to the improvement of public health through a reduction in the use of tobacco products. Transplanted to a cartoon character restriction, the policy objective would be – to improve child health by limiting exposure to child-directed marketing.

In finding that the encumbrance was justified by the policy objective, it was noted that the standardization of tobacco packaging did reasonably make a contribution towards Australia’s objective of reducing the use of tobacco products.^[62] By removing the design elements of tobacco packaging, the role of packaging as an advertisement would be hindered and the appeal of the products be reduced.^[63] Noting the importance of brand awareness and loyalty in child-directed marketing strategies, the same reasoning would likely apply to a restriction on cartoon character advertising. Restricting the branding elements of an unhealthy food product would directly limit both its appeal and the child’s exposure to advertising. While a law which prevents the use of cartoon character advertising on product packaging of unhealthy foods would constitute an encumbrance to trade, it is likely to be justified in a manner similar to Australia’s tobacco plain packaging laws.

Additionally, the appellate body emphasized that the test of ‘unjustifiable encumbrance’ provided governments with a wide degree of regulatory autonomy.^[64] A regulation under article 20 could justifiably encumber upon the use of trademarks if the motivating policy could reasonably explain the encumbrance. In comparison with the ‘necessity’ test required by article 2.2 of the TBT agreement, this test is much easier to overcome. Effectively, the appellate body has reinforced the freedom which governments have to impose regulation, as it will rarely be constrained by article 20 given the low bar set by the ‘unjustifiable encumbrance’ test.

In summary, none of the possible legal challenges to a restriction on the use of cartoon characters on the packaging of unhealthy foods are likely to succeed.

While litigation is used to bring legal challenges to public health measures, it also serves as an effective tool to practically delay and deter the implementation of public health measures. During the tobacco industry’s campaign against Australia’s plain packaging laws, litigation and arbitration was used to threaten governments with the prospect of liability to large amounts of legal fees and compensation upon lost cases.^[65] Consequently this may lead to ‘regulatory chill’ – a slowing of regulatory progress due to concerns about potential costs of corporate litigation or arbitration.^[66]

With the benefit of examining the litigation brought against Australia’s tobacco plain packaging laws, the Australian government would be well equipped to manage corporate litigation tactics relating to a cartoon character advertising restriction due to the substantial overlap in the legal arguments. As the legal precedent set by the tobacco plain packaging cases clearly foreshadows an unsuccessful outcome for legal challenges, companies may be dissuaded from engaging in corporate litigation tactics.

Lobbying practices have been well documented in Chile^[67] and Columbia, which implemented laws similar to Chile’s critical nutrient laws. Lobbying strategies included the spread of information favourable to the food industry through quasi-independent research bodies, donations to politicians and establishing partnerships with government bodies to gain goodwill.^[68] Such practices may delay or deter the implementation of evidence-based public health policy.

Australia currently regulates lobbying conducted by commercial lobbyists – third parties who are hired to lobby on behalf of a client; requiring registration on a publicly accessible database (the ‘Register of Lobbyists’) and adherence to a Code of Conduct. However, in-house lobbyists and lobbying activities conducted by an organisation on its own behalf are not subject to these regulations. Thus, while Australia has established structures to ensure transparency in commercial lobbying, a large proportion of lobbying activities conducted directly by organisations are not subject to the same obligations.

The 2021 Investigation into Lobbying in NSW^[69] conducted by the Independent Commission Against Corruption is reflective of a growing awareness of the extent of undue influence by the commercial sector, on governments in Australia. A number of recommendations were made to strengthen transparency and the regulation of lobbying in NSW. Such law reform in Australia would not only assist the implementation of a cartoon character advertising restriction, but the implementation of public health policy in general.

Pending the implementation of stronger regulation, lobbying practices by the food industry are likely to be extensively used to discourage a potential restriction, as occurred in Chile and Columbia. The effects of industry lobbying practices may be ameliorated by strong, coordinated, counter advocacy from public health and consumer groups to encourage awareness and political support for public health measures. Such counter advocacy occurred in Mexico between 2018 to 2019 with the support of international groups such as UNICEF and was instrumental in the passing of Mexico’s front-of-pack warning label by Congress.^[70]

Self-regulation can also constitute a challenge for proposed regulations, with the food industry directing attention to the success of existing industry-led initiatives to deny the need for any change to the regulatory environment.^[71] While industry self-reported evaluations of these initiatives invariably declare their effectiveness, these evaluations lack independent oversight and validation, as was the case with the RCMI.

Government-based initiatives which incorporate industry involvement may be subject to similar issues. Industry may attempt to undermine the effectiveness of government imposed labelling initiatives, by exerting influence to incorporate loopholes and terms favourable to the industry. An example of this in the food labelling context can be seen in Mexico with the industry-preferred ‘Guideline Daily Amount’ (‘GDA’) nutrition labelling system which was introduced as part of a mandatory government imposed front-of-pack labelling scheme. The GDA was based on an unrealistic 2,000 calorie diet, allowed for a daily intake of sugar 40g higher than the WHO standard at that time and was difficult to understand.^[72] Despite studies showing the ineffectiveness of the GDA, it successfully delayed the implementation of an effective front-of-pack labelling system from 2011 to 2019 – a period of 8 years.

Noting that the current system of self-regulation explicitly excludes food product packaging, industry may propose to extend self-regulation to this domain when discussions regarding a potential cartoon character advertising restriction on product packaging begins. Australia should remain conscious of the divergent incentives between industry and public health objectives, and of the recurring trend of inadequate self-regulation arising out of pre-emptive offers by the food industry^[73] to voluntarily restrict cartoon characters on packaging, as an alternative to mandatory government-led regulation.

Noting the operation of Chile’s laws, a comparable law for Australia would require the setting of criteria to determine whether a food is unhealthy and therefore subject to a cartoon character advertising restriction.

While Australia does not have mandatory front-of-pack nutrition label akin to Chile’s ‘stop sign’ warnings, the Health Star Rating (‘HSR’) front-of-pack nutrition label is a government-endorsed program operating on a voluntary basis to rate foods from ½ to 5 stars based on overall nutritional quality to guide consumers towards healthier choices when comparing similar packaged foods. However, the HSR does not specify a point along its ½ to 5 star spectrum at which a food is determined to be unhealthy or healthy. The distinction between ‘discretionary’ and ‘core’ foods within the Australian Dietary Guidelines may provide a supplementary tool for determining ‘healthiness’, with it defining ‘core foods’ as those from the five food groups which contribute to a healthy diet^[74] and discretionary foods corresponding to HFSS foods which are not necessary for a healthy diet.^[75] Studies which have combined these concepts of core and discretionary with the HSR spectrum have found that most discretionary foods score <3.5 health stars, and most core foods score above this.^[76]

As such, it may be pragmatically reasonable to establish a cut-off point at a HSR of 3.5, such that foods below this point are deemed unhealthy and therefore subject to a cartoon character advertising restriction.

Another consideration is that the HSR system is currently voluntary, giving companies the choice of displaying a food’s HSR or not including it on the product package. Existing studies suggest this has resulted in HSR still being displayed on less than half of all products, mostly those that score well.^[77] To effectively implement a restriction on the use of cartoon characters on unhealthy, lower scoring products, would logically require the mandatory affixing of the HSR on all product packages.

The Food Standards Australia New Zealand Code presents a viable opportunity for lawmaking. Its standards apply to food which is sold across Australia^[78], allowing for a uniform policy stance. A new standard which regulates the use of child-directed marketing for unhealthy foods based on a product’s HSR score can established. As a measure to protect children’s health, foods which have a HSR of 3.5 or higher can be restricted from displaying cartoon characters on pack. Operating analogously to Chile’s critical nutrient law, such a restriction would address the product package-based marketing techniques used to promote unhealthy foods to children.

Noting the detrimental effect of cartoon character advertising of unhealthy food on child health and the corresponding inadequacy in the Australian regulatory environment, Chile’s critical nutrient laws serve as a useful guiding model for how Australia could better protect children’s health. An opportunity to impose restrictions on child-directed marketing on the packaging of unhealthy foods exists, with the tobacco plain packaging precedent cases suggesting that industry legal challenges are unlikely to be successful. While corporate litigation tactics are unlikely to be legally successful, the Australian government should remain wary of the political and practical hurdles which may delay the development and effective implementation of such a restriction.

^[*] I thank Professor Alexandra Jones of The George Institute for Global Health for her generous support and guidance. All views expressed in this publication are solely attributable to the author.

^[1] Lana Hebden et al, ‘A Menagerie of Promotional Characters: Promoting Food to Children through Food Packaging’ (2011) 43(5) Journal of Nutrition Education and Behaviour 349.

^[2] Randy Page et al, ‘Targeting Children in the Cereal Aisle’ (2008) 39(5) American Journal of Health Education 272.

^[3] Frans Folkvord, The Psychology of Food Marketing and Overeating (Routledge, 1^st ed, 2019) 29-30.

^[4] Christina A. Roberto et al, ‘Influence of licensed characters on children’s taste and snack preferences’ (2010) 126(1) Pediatrics 88, 91.

^[5] Holly K. M. Henry and Dina L. G. Borzekowski, ‘The Nag Factor’ (2011) 5(3) Journal of Children and Media 298, 300.

^[8] Sonia Pombo-Rodrigues et al, ‘Nutrition Profile of Products with Cartoon Animations on the Packaging: A UK Cross-Sectional Survey of Foods and Drinks’ (2020) 12(3) Nutrients 707; Živa Lavriša and Igor Pravst, ‘Marketing of Foods to Children through Food Packaging Is Almost Exclusively Linked to Unhealthy Foods’ (2019) 11(5) Nutrients 1128.

^[10] Georgina Cairns et al, ‘Systematic reviews of the evidence on the nature, extent and effects of food marketing to children. A retrospective summary’ (2013) 62 Appetite 209, 213-214; Georgina Cairns, Kathryn Angus and Gerard Hastings, The extent, nature and effects of food promotion to children : a review of the evidence to December 2008 (December 2009) World Health Organisation, 27-32 <https://apps.who.int/iris/handle/10665/44237>.

^[11] Bo Rundh, ‘Packaging design: creating competitive advantage with product packaging’ (2009) 111(9) British Food Journal 998, 991.

^[13] Australia New Zealand Food Standards Code – Standard 1.2.7 – Nutrition, health and related claims 2018 (Cth).

^[14] Competition and Consumer Law Act 2010 (Cth) sch 2 ('Australian Consumer Law') ss 18, 29, 33.

^[18] Sarah Galbraith-Emami and Tim Lobstein, ‘The impact of initiatives to limit the advertising of food and beverage products to children: a systematic review’ (2013) 14(2) Obesity Reviews 960.

^[22] Belinda Reeve, ‘Private Governance, Public Purpose? Assessing Transparency and Accountability in Self-Regulation of Food Advertising to Children’ (2013) 10(2) Journal of Bioethical Inquiry 149, 157.

^[26] Corinna Hawkes, ‘Self-regulation of food advertising: what it can, could and cannot do to discourage unhealthy eating habits among children’ (2005) 30(4) British Nutrition Foundation 374, 374.

^[32] Ley No. 20,606, Ley sobre Composición Nutricional de los Alimentos y su Publicidad [Law on the Nutritional Composition of Food and its Advertising] (Republic of Chile) (18 August 2021) Art 5.

^[33] Decree No. 13 of 16 April 2015, Modifica decreto supremo nº 977, de 1996, reglamento sanitario de los alimentos (Republic of Chile) (5 July 2019) Transitionary Art 2.

^[34] Decree No. 13 of 16 April 2015, Modifica decreto supremo nº 977, de 1996, reglamento sanitario de los alimentos (Republic of Chile) (5 July 2019) Art 1.

^[35] Decree 977 of 6 August 1996, Reglamento sanitario de los alimentos [Food Sanitary Regulation] (Republic of Chile) (3 August 2021) Art 110 bis.

^[37] Fernanda Mediano Stoltze et al, ‘Prevalence of Child-Directed Marketing on Breakfast Cereal Packages before and after Chile’s Food Marketing Law: A Pre- and Post-Quantitative Content Analysis’ (2019) 16(22) International Journal of Environmental Research and Public Health 4501, 4508.

^[38] Lindsey Smith Taillie et al, ‘An evaluation of Chile’s Law of Food Labelling and Advertising on sugar-sweetened beverage purchases from 2015 to 2017: A before-and-after study’ (2020) 17(2) PLOS Medicine 1.

^[39] Teresa Correa et al, ‘Responses to the Chilean law of food labelling and advertising: exploring knowledge, perceptions and behaviors of mothers of young children’ (2019) 16(21) International Journal of Behavioural Nutrition and Physical Activity 1, 7.

^[40] Camila Corvalán et al, Impacto de la ley chilena de etiquetado en el sector productivo alimentario (2021) Food and Agriculture Organisation of the United Nations, 30 <https://doi.org/10.4060/cb3298es>.

^[48] Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1C (‘Agreement on Trade-Related Aspects of Intellectual Property Rights’).

^[49] Appellate Body Report, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WTO Doc WT/DS435/AB/R, WT/DS441/AB/R (9 June 2020) [6.573].

^[50] Enrico Bonadio, ‘Are Brands Untouchable? How Availability and Use of Trademarks Can Be Restricted for Furthering Public Interests’ (2014) Charlotte Intellectual Property Journal 1, 23.

^[51] Enrico Banadio, ‘On the nature of trademark does trademark registration positive or negative rights?’ in Alberto Alemanno and Enrico Bonadio (eds), The New Intellectual Propert of Health: Beyond Plain Packaging (Edward Elgar Publishing Limited, 2016) 43, 44.

^[52] Apellate Body Report, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WTO Doc WT/DS435/AB/R, WT/DS441/AB/R (9 June 2020) [6.582].

^[53] Elva Arredondo et al, ‘Brand Name Logo Recognition of Fast Food and Healthy Food among Children’ (2009) 34 Journal of Community Health 73, 77.

^[54] Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘Agreement on Technical Barriers to Trade’) art 2.2.

^[55] World Trade Organisation, Technical Information on Technical barriers to trade ‘Technical regulations and standards in the TBT Agreement’ <https://www.wto.org/english/tratop_e/tbt_e/tbt_info_e.htm>.

^[56] Ibid art 2.3; World Trade Organisation, Technical Information on Technical barriers to trade ‘When is a technical regulation an unnecessary obstacle to trade?’ <https://www.wto.org/english/tratop_e/tbt_e/tbt_info_e.htm>.

^[57] Samantha Kwan, ‘Individual versus Corporate Responsibility’ (2009) 12(4) Food, Culture and Society 477, 483.

^[58] Anne Marie Thow et al, ‘Nutrition labelling is a trade policy issue: lessons from an analysis of specific trade concerns at the World Trade Organization’ (2018) 33(4) Health Promotion International 561, 568.

^[59] Apellate Body Report, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WTO Doc WT/DS435/AB/R, WT/DS441/AB/R (9 June 2020) [6.659].

^[60] Apellate Body Report, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WTO Doc WT/DS435/AB/R, WT/DS441/AB/R (9 June 2020) [6.651].

^[61] Appellate Body Report, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WTO Doc WT/DS435/AB/R, WT/DS441/AB/R (9 June 2020) [6.630].

^[62] Appellate Body Report, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WTO Doc WT/DS435/AB/R, WT/DS441/AB/R (9 June 2020) [6.696].

^[63] Panel Report, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging WTO Doc WT/DS435/R, WT/DS441/R, WT/DS458/R, WT/DS467/R (28 June 2018) [7.647].

^[64] Appellate Body Report, Australia — Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging, WTO Doc WT/DS435/AB/R, WT/DS441/AB/R (9 June 2020) [6.647].

^[65] Eric Crosbie, Robert Eckford and Stella Bialous, ‘Containing diffusion: the tobacco industry’s multipronged trade strategy to block tobacco standardised packaging’ (2019) 28 Tobacco Control 195, 199.

^[66] Kyla Tienhaara, ‘Regulatory Chill and the Threat of Arbitration: A View from Political Science’ in Chester Brown and Kate Miles (eds), Evolution in Investment Treaty Law and Arbitration (Cambridge University Press, 2012) 606, 657.

^[67] Melissa Mialon et al, ‘Food industry political practices in Chile: "the economy has always been the main concern"’ (2020) 16(1) Globalization and Health 107, 110-115.

^[68] Melissa Mialon et al, ‘‘I had never seen so many lobbyists’: food industry political practices during the development of a new nutrition front-of-pack labelling system in Colombia’ (2020) 24(9) Public Health Nutrition 1, 4-6.

^[70] Mariel White and Simon Barquera, ‘Mexico Adopts Food Warning Labels, Why Now?’ (2020) 6(1) Health Systems and Reform 1, 6.

^[71] Belinda Reeve and Roger Magnusson ‘‘“Legislative Scaffolding”: A New Approach to Prevention’ (2013) 37(5) Australian and New Zealand Journal of Public Health 494, 494.

^[73] Rob Moodie et al, “Profits and pandemics: prevention of harmful effects of tobacco, alcohol, and ultra-processed food and drink industries” (2013) 381(9867) Lancet 670.

^[76] Elizabeth Dunford et al, Technical Report: Alignment of NSW Healthy Food Provision Policy with the Health Star Rating System (November 2015) NSW Health <https://www.health.nsw.gov.au/heal/Publications/health-star-rating-system.pdf>; Alexandra Jones, Karin Rådholm and Bruce Neal, ‘‘Defining ‘Unhealthy’: A Systematic Analysis of Alignment between the Australian Dietary Guidelines and the Health Star Rating System’ (2018) 10(4) Nutrients 501.

^[77] Maria Shahid, Bruce Neal and Alexandra Jones, ‘Uptake of Australia’s Health Star Rating System 2014–2019’ (2020) 12(6) Nutrients 1791, 1795.

^[78] Australia New Zealand Food Standards Code – Standard 1.1.1 – Structure of the Code and general provisions 2018 (Cth) s 1.1.1–3 1(a).

University of New South Wales Law Journal Student Series

Khoo, Daniel --- "Regulating the Use of Cartoon Character Advertising on Product Packaging of Unhealthy Foods in Australia to Protect Children's Health: Legal, Political and Practical Challenges" [2022] UNSWLawJlStuS 18; (2022) UNSWLJ Student Series No 22-18