The advertising and labelling of unhealthy foodstuffs: towards a balance between government regulation and industry self-regulation

Abstract

Non-communicable diseases ("NCDs") are the leading cause of illness, death and disability in South Africa. In addition to the severe threat to public health, NCDs have dire implications for socio-economic development, which impedes sustainable development. Unhealthy diet is a risk factor contributing to the prevailing NCD burden. Consumers currently live in an obesogenic food environment where food manufacturers aggressively market unhealthy foodstuffs. The government has, therefore, committed to implementing measures that restrict the advertising and simplify the labelling of unhealthy foodstuffs. These measures aim to reduce consumers' exposure to unhealthy foodstuffs whilst empowering them to make healthier food choices. It has been acknowledged that a multi-sectoral approach is required to achieve this result. Whilst statutory reform is ongoing, a legislative gap exists in regulating unhealthy foodstuffs labelling and advertising. It is on this basis that this study considers the role that self-regulation within the advertising industry, through the operations of the Advertising Regulatory Board, can play in assisting with the regulation of unhealthy foodstuffs advertising and labelling in South Africa. The study finds that industry self-regulation complements government regulation where it may be outdated, where legislative reform is pending, or where there are challenges in providing effective redress to consumers. Government regulation, on the other hand, provides a crucial backdrop for self-regulation in the instance of a rogue trader, or where the ARB does not have the mandate to consider an advertising complaint. In this way, government regulation and self-regulation mutually reinforce and complement each other, each having its own strengths and challenges. In the broader context, the complementary nature of government regulation and self-regulation in the advertising industry ultimately furthers consumer protection regarding unhealthy foodstuffs labelling and advertising. Several recommendations are made here to strengthen coordination and cooperation between government and industry towards achieving a balance between government regulation and self-regulation in addressing diet-related NCDs through unhealthy foodstuffs advertising and labelling restrictions.