Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, par. 23, par. 24 and par. 25 (2014)

Text of the recommendation

23. To address the issue of aggressive marketing, some States have supported self-regulation and have allowed food companies to voluntarily regulate their practices related to marketing and nutritional content of unhealthy foods to children. Companies often voluntarily adopt self-formulated guidelines and standards to restrict Government regulation and respond public demands. They have also taken joint initiatives and formulated guidelines for member companies to restrict advertising and promoting practices with respect to children. However, self-regulation by companies has not had any significant effect on altering food marketing strategies. Due to a variety of reasons, such as the non-binding nature of such self-regulation, lack of benchmarks and transparency, inconsistent definition of children and different nutrition criteria, companies may be able to circumvent guidelines, blunting the intended effect of marketing guidelines they instituted.

24. Collaboration between Governments and food corporations has been recommended as an alternative to self-regulation. One of the major reasons cited for promoting partnerships between private food companies and Governments is that food corporations have the ability to promote healthier dietary habits and are therefore a part of the solution to reduce and prevent the obesity epidemic. However, the conflict of interest between the State’s duty to promote public health and companies’ responsibility towards their shareholders to increase profits renders private–public partnership suspect. In addition, the close relationship between food and beverage companies and Government agencies may lead to a lack of transparency and independence of regulatory authorities, which may undermine the effectiveness of public–private partnerships in States’ efforts to reduce diet-related NCDs.

25. Owing to the inherent problems associated with self-regulation and public–private partnerships, there is a need for States to adopt laws that prevent companies from using insidious marketing strategies. The responsibility to protect the enjoyment of the right to health warrants State intervention in situations when third parties, such as food companies, use their position to influence dietary habits by directly or indirectly encouraging unhealthy diets, which negatively affect people’s health. Therefore, States have a positive duty to regulate unhealthy food advertising and the promotion strategies of food companies. Under the right to health, States are especially required to protect vulnerable groups such as children from violations of their right to health. To reduce opportunities for targeted advertisements, some States have instituted laws to ban companies from advertising their products to children below a certain age and to limit the availability of unhealthy foods in schools.