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The Norwegian Implementation of the WHO’s Recommendations
Published online by Cambridge University Press: 21 July 2017
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Footnotes
*
Partner and attorney at law at Kvale Advokatfirma DA (previous Haavind).
**
Associate, Avokatfirmaet Haavind AS, h.roald@haavind.no.
References
1 For evaluation of self-regulatory regimes vs. legally binding regulations, see e.g. Garde, A and Bartlett, O, “Time to Seize the (Red) Bull by the Horns: The European Union’s Failure to Protect Children from Alcohol and Unhealthy Food Marketing” (2013) 38 European Law Review 498 Google Scholar et sqq.
2 Resolution WHA63.14, endorsed in May 2010, at the Sixty-third World Health Assembly.
3 Ministry of Health and Care Services and the Ministry of Children, Equality and Social Inclusion, “Hearing Memo to proposal for new regulation of marketing of unhealthy food towards children and youths” (Hearing Memo I) , at p. 7, 7 June 2012, available (in Norwegian) at www.regjeringen.no/contentassets/eb5bf2aeba0c429a832f9cc74fe159ad/hoeringsnotat.pdf, accessed on 12 January 2015. All information on the two regulations, hearing memos and hearing statement is available in Norwegian at the Ministry of Health and Care Services’ website.
4 “Draft to Regulation on marketing of food stuff to children and youths” (First Draft Regulation). 7 June 2012, available (in Norwegian) at www.regjeringen.no/contentassets/eb5bf2aeba0c429a832f9cc74fe159ad/vedlegg2.pdf, and in English at www.eftasurv.int/media/notification-of-dtr/Regulations-relating-to-marketing-practices-for-foods-and-beverages-to-c...--9005.pdf and www.eftasurv.int/media/notification-of-dtr/Appendix-to-Regulations.-Unhealthy-foods---9005.pdf, all accessed on 12 January 2015.
5 16 statements came from industry associations in the food, beverage and marketing sector, 13 statements came from food business operators, 18 statements came from NGOs and trade unions, 3 statements came from universities and colleges, 8 statements came from municipalities and counties, 9 statements came from government agencies and 11 statements came from other ministries.
6 “Regulation on the marketing of food and beverages to children” (Revised Draft Regulation), 16 May 2013, is available (in Norwegian) at www.regjeringen.no/nb/dep/hod/dok/hoeringer/hoeringsdok/2013/horing---revidert-forslag-til-forskrift-/horingsbrev.html?id=727096, accessed on 12 January 2015.
7 Further links to the hearing statements are found at www.regjeringen.no/nb/dokumenter/horing---forslag-til-ny-regulering-av-ma/id684709/ (First Draft Regulation) and at www.regjeringen.no/nb/dokumenter/horing---revidert-forslag-til-forskrift-/id727092/ (Revised Draft Regulation), accessed on 12 January 2015.
8 Letter from EFTA Surveillance Authority to the Ministry of Trade and Industry, “Comments by the EFTA Surveillance Authority to Norway concerning notification 2013/9005/N”, dated 17 July 2013.
9 The Guideline and the Explanatory Guide are available (in English) at mfu.as/37540-Code-and-Guidance, accessed on 11 January 2015.
10 Guideline section 3, supra note 9.
11 Letter from the Ministry of Health and Care Services, dated 5 June 2013.
12 Any entity, NGO or private person may lodge a complaint. The plaintiff’s identity will, if requested, not be disclosed to the respondent, only to the Commission. The respondent will be given the right to comment. The complaint will thereafter be assessed by the Complaint Commission. The decision is final.
13 The Marketing Control Act implements Directive 2005/29/EC on unfair commercial practices, OJ 2005 L 149/22. When implementing the Directive, and overall reviewing the protection of children and marketing law, a specific chapter in the Act was outline to underpin the particular needs of children, cf Ot.prp. nr. 55 (2007–2008) pp. 59–74 and pp. 204–205. Section of the Act 19 states that “When a commercial practice is directed at children, or may be seen or heard by children, particular care shall be exercised with regard to the impressionability, lack of experience and natural credulity of children.”
14 Act of marketing of 16 June 1972 no 47 and practice related thereto.
15 The EU Directive 2010/13/EU of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States, concerning the provision on audio-visual media services (the Audio-visual Media Services Directive), OJ 2010 L 95/11, demands freedom to provide broadcasting services within the Community and imposes the “country of origin” principle, see Art. 3. Thus, only the originating country’s legislation will apply even though it is less strict than the Norwegian equivalent rules. The minimum requirements in e.g. the Directive’s Arts. 9(1)(g) and 9(1)(e) will, in any case, apply to all EU/EEA countries, but the Norwegian legislation is stricter.
16 National Institute for Consumer Reseach.
17 Hearing Memo I, supra note 3, at p. 32 et sqq.
18 Hearing Memo I, supra note 3, at p. 29.
19 The Recommendations include references to the scientific documentation underpinning the need for action. This article will not revolve around an analysis of the factual arguments, and least of all indicate an evaluation of references to scientific documentation including scientific quality and standards. All hearing statements are publicly available (in Norwegian), supra note 7.
20 EU Pledge, available at www.eu-pledge.eu/, accessed on 12 January 2015.
21 See hearing statement submitted by ORKLA, p. 18, further references are made to the studies made by Vlakenburg and Cantor (2001), Livingstone and Helsper (2006) and McGinnis et al. (eds) (2006), available at www.regjeringen.no/contentassets/e0f21d0606b7419996c5163c709fef36/orkla1.pdf, accessed 11 January 2015.
22 Cf Ot.prp.nr.55 (2007–2008) on the supervision of marketing and contract terms.
23 Ministry of Health and Care Services and the Ministry of Children, Equality and Social Inclusion, “Hearing Memo to Regulation on the marketing of food and beverages to children” (Hearing Memo II) p. 13, 16 May 2013, available (in Norwegian) at www.regjeringen.no/contentassets/f1a82c7111674735902cafb8f170f8f5/hoering.pdf, accessed 12 January 2015.
24 Hearing Memo II, supra note 23, p. 12.
25 Hearing Memo II, supra note 23, pp. 12–14.
26 “A framework for implementing the set of recommendations” (WHO, 2012).
27 Letter from the Ministry of Health and Care Services, dated 5 June 2013.
28 The Draft Regulations defined marketing as “any action taken to promote sales of foodstuff to consumers”, cf. section 3, 1st paragraph litra b and c, supra note 3 and 4. The Guideline states in section 2 that “Marketing is defined as any sales promotional act”, supra note 9.
29 Cf Recommendations, p. 7: “The systematic reviews show that, although television remains an important medium, it is gradually being complemented by an increasingly multifaceted mix of marketing communications that focuses on branding and building relationships with consumers. This wide array of marketing techniques includes advertising, sponsorship, product placement, sales promotion, crosspromotions, using celebrities, brand mascots or characters, popular with children, web sites, packaging, labelling and point-of-purchase displays, e-mails and text messages, philanthropic activities tied to branding opportunities, and communication through ‘viral marketing’ and by wordof-mouth. Food marketing to children is now a global phenomenon and tends to be pluralistic and integrated, using multiple messages in multiple channels.”
30 Other factors of relevance were e.g. the time and place of marketing, the use of famous people, the use of animation or cartoon characters appealing to children, the use of extras, gifts, toys, coupons, discounts or collectables appealing to children and the sponsoring of products, activities or places either popular among, or to a great extent reaching children and young people either as participants or as audience, supra note 3.
31 These exemptions were further explained in Hearing Memo II, supra note 23, p. 15. “General presentation” was according to the Government’s view the normal display in shelves, but placing that would specifically capture children’s attention would be regarded as marketing, typically when combined with effects that could appeal to children.
32 The Explanatory Guide to Guideline section 2, 2nd paragraph, litra b, supra note 9. The Hearing Memos and the Guideline also address whether, for example, toys inside packets of cereal are acceptable, cf Hearing Memo II, supra note 23, pp. 15–16, and the Explanatory Guide to Guideline section 2, supra note 9.
33 Hearing Memo II, supra note 23, p. 16.
34 Guideline section 2c, supra note 9.
35 Both the First and the Revised Draft Regulation, supra notes 4 and 6, list factors which are relevant when assessing whether marketing is “directed at” children, i.e. “the use of people who in particular may appeal to children”. Some nuances were introduced in the Revised Draft. Amongst others, it emphasised that the factors were only possible, relevant factors, and not mandatory for the assessment, which was contrary to the First Draft Regulation. Also, the wording “may appeal” in the listed factors, was changed to “in particular may appeal”. The Government stated in the Hearing Memo II that the amendment would narrow the scope of the marketing ban, supra note 23, p. 18.
36 See e.g. www.forbrukerombudet.no/asset/5216/1/5216_1.pdf, accessed 12 January 2015.
37 Various foods were discussed in the Hearing Memos, e.g. fast food/take away, see Hearing Memo I, supra note 3, pp. 50–58 and Hearing Memo II, supra note 23, pp. 19–29.
38 The tariff categorisation is outlined in the Regulation on certain tariffs, 11 December 2001 no. 1451.
39 While there are some changes between the First Draft Proposal and the Revised Draft Regulation, the Guideline principally follows the second proposal, but there are some changes, e.g. fast food.
40 Appendix to First Draft Regulation, “Foodstuff regarded as energy-dense, salty, sweet or nutrient-poor food according to this regulation” (30 May 2012), available at www.regjeringen.no/contentassets/eb5bf2aeba0c429a832f9cc74fe159ad/vedlegg3.pdf, accessed 12 January 2015.
41 Hearing Memo II, supra note 23, p. 19.
42 Hearing Memo II, supra note 23, p. 19.
43 Hearing Memo II, supra note 23, p. 20.
44 See, inter alia, Case 8/74 Dassonville [1974] ECR 877; Case E-5/98 Fagtun [1999] EFTA Ct Rep 5 and joined cases C-267/91 and C-268/91 Keck and Mithouard [1993] ECR I-6097.
45 Equivalent to the Treaty on the Functioning of the European Union, Art. 36. Relevant case law is Case 120/78 Cassis de Dijon [1979] ECR 649; Case E-6/00 Dr Jürgen Tschannett [2000-2001] EFTA Ct Rep 203; Case C-420/01Commission v ltaly [2003] ECR I-6445 and Case C-110/05 Commission v ltaly (Motorcycle trailers) [2009] ECR I-519.
46 See Case T-13/99 Animal Health v Council [2002] ECR II-3305, at para. 168 et sqq.
47 See hearing statements submitted by ORKLA to the Revised Draft, available at www.regjeringen.no/contentassets/e0f21d0606b7419996c5163c709fef36/orkla2.pdf and www.regjeringen.no/contentassets/e0f21d0606b7419996c5163c709fef36/orkla1.pdf , both accessed 11 January 2015). See also Hearing Memo II, supra note 23, pp. 36–39.
48 See the above-mentioned hearing statements provided by ORKLA, supra note 47, at pp.11–21 in the first reference and pp. 9–13 in the second reference.
49 Hearing Memo II, supra note 23, p. 38.
50 Hearing Memo II, supra note 23, p. 37.
51 Act of 9 March 1973 No 14 relating to the Prevention of the Harmful Effects of Tobacco.
52 Indeed the unusual applicability of the precautionary principle is commented on by A Alemanno “The legality, rationale and science of tobacco display ban after the Philip Morris Judgment” (24 October 2011), available at papers.ssrn.com/sol3/papers.cfm?abstract_id=1948507, accessed 12 January 2015.
53 See legal opinion submitted by Orkla, supra note 47, first link at p. 15; Case C-73/08 Bressol [2010] ECR I2735.
54 EFTA Court, case E-16/10, Philip Morris Norway [2011] EFTA Ct Rep 330, at para. 84.
55 Norwegian Notification 2013/9005/N, supra note 8.
56 The Constitution § 100 and EMK, Art. 10 are assumed to provide the same protection of freedom of speech, but the margin of discretion provided to the Member States by European Court of Human Rights will not be granted by the national courts.
57 In the matter C-544/10 Deutsches Weintor eG v Land Rheinland-Pfalz, the ECJ assessed whether restricting marketing would be compatible with TFEU, Art. 6.1. The ECJ found that the freedoms to occupation and to conduct a business are not absolute and it was necessary to strike a fair balance between the fundamental rights and protection of health, the latter being explicitly protected in the Charter of Fundamental Rights of the European Union (2010/C 83/02) Art. 35, cf para. 42 et sqq; Alemanno, A and Garde, A “Fundamental rights as obstacles and as opportunity for policymaking to promote healthier lifestyle” (2013) 7 Sieps 87 Google Scholar et sqq.
58 See hearing statements submitted by ORKLA to the Revised Draft, available at www.regjeringen.no/contentassets/e0f21d0606b7419996c5163c709fef36/orkla1.pdf, at pp. 5–8 and www.regjeringen.no/contentassets/e0f21d0606b7419996c5163c709fef36/orkla3.pdf, accessed 11 January 2015.
59 Hearing Memo II, supra note 23, at pp. 39–41.
60 Distinguishing the economical interests from other interests may be difficult, see Garde, A, “The Unfair Commercial Practises Directive – A successful example of legislative harmonisation” in P Syrpis (ed.), The Judiciary, the Legislature and the Internal Market (Cambridge, Cambridge University Press, 2012) p. 139 Google Scholar et sqq.
61 C-391/12 RLvS v Stuttgarter Wochenblatt Gmhb.
62 The opinions are available (in Norwegian) at mfu.as/39309-Aktuelt, accessed 9 January 2015.
63 Cf the Guidelines clause 2, supra note 9.