Published 15 June 2012
The proposed prohibition applies to marketing directed at children and young people of “unhealthy” products with high content of energy, saturated fat, salt and/or sugar. The relevant foodstuffs are listed in an appendix to the proposed regulation and include inter alia chocolate and sweets, sweet spreads and desserts, snacks, soft drinks and similar beverages, fast food with a certain energy, fat and salt content, ice cream, cereals with a certain sugar content, cakes, cookies and yoghurt and similar with a certain sugar content.
The regulation defines “marketing” as “any act taken in the course of trade to promote sales of foodstuffs to consumers”, and the ministry states that “marketing” should be understood in a broad sense.
Children and youth are defined as anyone under the age of 18, and when considering whether the marketing is directed at anyone under the age of 18, emphasis should be given to whether the marketing is designed in a way that may appeal to this target group, for example due to language, colours, effects and use of images. The marketing can also be considered as directed at anyone under the age of 18 notwithstanding whether they are the expressed, anticipated or actual target group for the marketing. Further, emphasis should be given to whether persons, animations or animated characters which can appeal to the target group are used in the marketing. The use of gifts, toys, competitions and games directed at children and youth will also fall within the scope of the prohibition. In addition, the prohibition will affect sponsoring of products, activities or places which to a considerable extent reach children and young people as participants.
It is stated in the consultative paper that the relevant products may still be marketed – however not towards children and youth. How children and youth can be shielded from the marketing described above, for example in stores, is not discussed.
In its current form, the scope of the prohibition is very unclear, and has, not surprisingly, caused considerable debate in Norway, since the prohibition seems to imply a potential marketing ban for a large number of ordinary consumer products intended for both adults and children. Further, it seems that the traders’ possibilities in relation to design of products either are severely limited (comparable to the “plain packaging” proposal for tobacco products which is under consideration in the EU), or that there will have to be put in place physical restrictions when the products are sold to avoid that children and youth are exposed to the products (“shielded” sale).
Apart from the large number of practical issues that arise due to the vagueness of the proposal, the ministry’s considerations may be questioned in relation to EEA law, and a core issue is whether the proposal is objectively necessary and proportional. The usefulness of banning marketing of the relevant products against anyone under the age of 18 may also be questioned, and the high age limit may in itself have a side to the proportionality assessment under the EEA agreement.
In practice, the proposal reintroduces the former prohibition against added-value promotional incentives within its field, and it also implies a partial revival of the prohibition against purchase-conditional competitions which for the time being is not practised pending clarifications at EU level.
It is also a question whether the prohibition is an unacceptable restriction on the freedom of expression. Although commercial statements do not lie within the core area of ECHR article 10, the interference is both comprehensive and vague, and with the current wording it is difficult to see that the prohibition is a relevant and proportionate mean to improve public health.
The deadline for comments to the consultation paper is 7 September 2012.
Arne Ringnes, Partner
Eivind J. Vesterkjær, Partner
Camilla S. Vislie, Partner
Pål Grøndalen Palmer, Associate
Eirik W. Raanes, Partner
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