The second method for modifying people’s behaviour described by Rothschild (1999) is legislation. Commonly, legislation restricts or prohibits undesirable behaviours, and uses the police and judicial system to detect and punish breaches. For example, road- user laws mandate seatbelt use, maximum speed limits, helmet use by cyclists, and maximum blood-alcohol tolerances for drivers to support the goal of enhancing road safety, with the police force monitoring compliance and prosecuting serious offences in the courts. A feature of such laws is “… the use of coercion to achieve behavior in a nonvoluntary manner … or threaten with punishment for non-compliance or
inappropriate behaviour” (Rothschild, 1999, p. 25). Jochelson (2005) argues these paternalistic policies can be viewed positively as a form of stewardship, which serves “…a protective function, where individuals are protected from harm by others and sometimes from themselves” (p. 1).
Food industry representatives believe that use of legislation to address obesity rates is draconian and undesirable because it “…diminishes the rights and responsibilities of the
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individual to make choices for themselves and their families” (Irwin, 2005b, p. 1). However, others suggest that democratic governments have the dual responsibilities of protecting citizens’ freedom of choice and preventing citizens from incurring costs (financial or otherwise) created through no fault or choice of their own (Anonymous, 2008a; Hayne, Moran, & Ford, 2004; Rothschild, 1999). These costs are known as externalities and are “…present whenever the behavior of a person affects the situation of other persons without the explicit agreement of that other person or persons”
(Buchanan, 1971, p.7, quoted in Dawes, 1980, p. 173). As the effects of weight gain are not solely limited to the individual, the debate over how to reduce obesity rates requires consideration of the magnitude of externalities and pressure to reduce these.
Rothschild (1999) notes that laws can also be used to facilitate marketing solutions: “Law can also be used to increase …or decrease …the probability of transactions that might not develop as desired through free-market mechanisms” (p. 25). Restrictions may be imposed on the way products are marketed by brand owners without limiting consumers’ ability to choose from a range of product and brand offerings. That is, governments can enact laws or regulations that set product specifications, place limits on distribution and sales, restrict or ban promotion of some products, and influence prices through taxes and subsidies.
The field of tobacco control is the most obvious example of the law being used to achieve health goals. In New Zealand, the Smoke-free Environments (SFE) Act 1990 and its amendments created a situation where adult consumers may purchase and consume tobacco, but sales have been reduced by raising the price through successive tax increases and lifting the minimum purchase age to 18 years. Furthermore, the SFE Act and its amendments bans promotion of all tobacco products (though it allows in- store displays and package design), and regulate how tobacco products may be displayed in retail environments. Similar legislation exists to restrict the sale of alcohol.
Proposals that advocate legislating to alter the market structure to improve nutrition and curb obesity have been put forward in many countries (e.g., Glanz et al., 1995; Weiss, Hayne, & Smith, 2004; WHO, 2003c), including New Zealand. As price controls have proved to be a very successful measure for reducing cigarette consumption (Laugesen & Swinburn, 2000), health groups have suggested taxing energy-dense and high fat, sugar and salt foods (HFSS), or subsidising fresh produce, to reduce the price differential
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between nutritionally poorer and better options (Diabetes New Zealand & Fight the Obesity Epidemic, 2004; Zimmet & James, 2006). Experimental research supports the price-elasticity assumptions underlying this proposal; a purchase simulation experiment demonstrated increases in the price of high energy-dense foods reduced purchases, and reductions in the price of low energy foods increased purchases (Epstein, Dearing, Paluch, Roemmich, & Cho, 2007).
Regulatory frameworks that set product standards are already in place to protect consumers from food-related risks such as chemical or pathogenic contamination, and these could be extended to control production standards for less nutritious, energy-dense products. Food Standards Australia New Zealand (FSANZ) is a trans-national body that administers the Food Code (FSANZ, 2006a), which, among many other things,
prescribes what substances (such as pesticides or additives) may be present in foods and at what tolerances. In addition to regulating chemicals traditionally associated with food safety, some governing bodies are considering regulations to limit the presence of unhealthy ingredients in foods. For example, the New York City Health Department changed its health code to phase out trans-fats from production and cooking of food sold in restaurants and other food service outlets (New York City Department of Health and Mental Hygiene, 2006); there have been calls for similar action in New Zealand and Australia (Johnston, 2006; Ponniah, 2006).
For several years, researchers have investigated the types of food marketing
communications directed at various audiences, in particular those aimed at children and adolescents (Dalmeny et al., 2003; Dibb & Castell, 1995; Dibb & Gordon, 2001; Hammond, Wyllie, & Casswell, 1999; Kaiser Family Foundation, 2004; Majoras et al., 2006; Morton, 1990; Taras & Gage, 1995). These studies find that sophisticated
methods are used to target children directly and encourage them to request specific, often energy dense, food and beverage products – using methods such as free gifts, movie tie- ins (both themed advertisements and give-aways), celebrity endorsement, product placement in television and movies, and setting up branded interactive websites.
In addition to cataloguing the types and methods of communications and their audiences, other researchers sought to determine whether marketing communications contribute to unhealthy weight gain (Borzekowski & Robinson, 2001; Eagle et al., 2004; Galst & White, 1976; Gamble & Cotugna, 1999; Halford, Gillespie, Brown, Pontin, & Dovey,
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2004; Hoek & Gendall, 2006; Kotz & Story, 1994; McLellan, 2002). Some authors argue that the effects of these communications are limited to altering market share, by encouraging consumers to switch between brands but not changing the rate at which they shop within the product category. Others conclude that these marketing campaigns increase category spend as consumers are encouraged to purchase more frequently, by altering perceptions of what a normal diet looks like and using behavioural rewards to change purchase habits.
After reviewing studies that examined factors contributing to obesity, WHO (2003a) experts concluded that the balance of evidence suggested a probable causative link between heavy marketing of energy-dense and fast-foods with unhealthy weight gain. Systematic reviews have also reached the same conclusion (Hastings et al., 2003; Institute of Medicine, 2005). This has fuelled calls for restrictions to be placed on the marketing of HFSS foods, including banning food advertisements directed to younger audiences (Fight the Obesity Epidemic, 2006; Powell & Longfield, 2004), and placing restrictions on the types of promotions used to encourage sales of such foods (Hoek & Gendall, 2006).
However, legislators have been reluctant to enact laws that limit food marketers' freedom to market or would modify the food supply. Instead, they have called on industry to make these changes voluntarily (Hodgson, 2006a). Many food companies are beginning to make some changes to their product ranges through reformulation and the addition of new “better-for-you” lines, and some of the larger companies have announced new policies on marketing practices to encourage responsible choices (see FIG, 2006b; 2008). Despite denying that marketing contributes to obesity, the food industry has responded with self-regulatory initiatives that circumscribe promotional activities (CIAA, 2007; Coca-Cola Amatil NZ, 2006a; Majoras et al., 2006). For example, major New Zealand beverage suppliers negotiated a timeline to remove sugared soft drinks from schools – a marketing solution. Having pre-empted regulation, the managing director of Coca Cola stated: “We now expect the debate to shift to areas which will have a much greater reduction on obesity levels – such as education about eating for healthy lifestyles, increased physical activity and balanced food choices” (Coca-Cola Amatil NZ, 2006b, emphasis added). Much of the policy debate in New Zealand and Australia on how to
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improve consumers’ food selection remains focused on education programmes and the provision of information in a minimally regulated environment.