CHAPTER 7: MARKETING
Advertising
161. We mentioned in Chapter 1 the diametrically
opposing views of the advocates for public health, and those concerned
with the manufacture, marketing and advertising of alcoholic drinks.
Nothing illustrated this opposition more starkly than the evidence
we received on advertising. The Advertising Association, which
provides a single voice for the UK advertising industry, went
so far as to say in its written evidence: "In fact, the assumption
that advertising exposure is even relevant to harm should be challenged—in
recent years, there has been an inverse correlation between advertising
exposure and levels of consumption." This raises the question
of why the industry is prepared to spend £800 million a year
on advertising its products.[160]
162. Ms Eustace gave us one possible reason:
"If you are launching a new low-alcohol product, for example,
you will be trying to gain market share against other similar
products in that sector. You are not looking at growing total
consumption. That is not your goal as the company. You are looking
at brand share, and you are also looking at promoting the reputation
and the value of the brand."[161]
But even if this were true, there is still the fact that advertising
is seen by young people who are not yet drinking. In the words
of Dr Winpenny: "the problem is not really about brand
switching if they have not already developed some kind of brand
allegiance".[162]
ADVERTISING REGULATION
163. In the United Kingdom, the advertising of
alcohol is regulated jointly by OFCOM, the Advertising Standards
Authority (ASA), and the Portman Group. OFCOM is an independent
NDPB, funded by the taxpayer, and regulating television sponsorship
and advertising. The ASA is funded by the advertising industry,
but claims to be "the UK's independent regulator for ensuring
that advertising in all media is legal, decent, honest and truthful".[163]
It regulates advertising on television, radio, in the press, on
posters, in the cinema, by direct mail, and on the internet. It
issues Codes of Practice for advertisers to follow, and monitors
compliance.
164. The Portman Group told us that it is "the
responsibility body for UK drinks producers. We regulate the promotion
and packaging of alcoholic drinks sold or marketed in the UK;
challenge and encourage the industry to market its products responsibly;
and lead on best practice in alcohol corporate social responsibility."[164]
The Portman Group is funded by the drinks industry. Witnesses
criticised its Code of Practice on the Naming, Packaging and Promotion
of Alcoholic Drinks for not including any oversight of retailers'
approach to alcohol sales. The fact that it is a voluntary code
means that, if a complaint is upheld, "there is no sanction
available other than a request to address relevant issues".[165]
THE EFFECTS OF ADVERTISING
165. Guy Parker, the Chief Executive of the ASA,
told us that in 2004 the Government looked at all the evidence
that was available then, which identified a possible link between
younger people's awareness and appreciation of alcohol advertisements
and their propensity to drink. In response, in 2005 the UK Advertising
Codes administered by the ASA were strengthened by the inclusion
of tougher rules on avoiding appeal to under 18 year-olds and
on linking alcohol with sexual success. Mr Parker also cited
another report commissioned by the Department of Health from ScHARR
in 2009, which found that alcohol advertising had a small but
consistent effect on alcohol consumption, including by young people.[166]
Thus even though the ASA is funded by the advertising industry,
its Chief Executive seemed to have no doubt about the correlation
between alcohol advertising and the propensity of young people
to drink.
166. This was not the view of the advertisers
themselves, as was clear from the evidence we received from them
on the RAND report. RAND Europe is a not-for-profit research organisation
which was commissioned by the Commission to carry out an assessment
of young people's exposure to alcohol marketing through television
and online. Its report, Assessment of young people's exposure
to alcohol marketing in audiovisual and online media, found
that in the UK, young people aged 10-15 were exposed to 11% more
alcohol advertising than adults aged 25 years or older, and that
television alcohol advertisements containing features considered
appealing to youth were more common in the UK than in Germany
and the Netherlands.
167. These findings were strongly contested in
written evidence submitted by the Advertising Association, which
called upon the European Commission to withdraw the RAND report.
The Advertising Association commissioned its own analysis, which
claimed that 10-15 year olds in fact see 53% less alcohol advertising
than adults, and that RAND's findings on exposure were "the
polar opposite to any other data we have seen". This analysis
further criticises RAND's data interpretation based on a number
of "technical flaws". We took oral evidence from Prof Marteau
and Dr Eleanor Winpenny, who were two of the authors of the
RAND report, and also from Chris Baker, the consultant commissioned
by the Advertising Association to conduct an analysis of the report.
The oral opinions expressed were as far apart as the written views,
and did little more to enlighten us.
168. Three of our witnesses from the public health
sector—Prof Anderson, Prof Meier, and Prof Hastings—had
no doubt about the effect of advertising on harmful drinking,
and Prof Hastings summed up their views: "In this field
we have a very, very likely interpretation, which just happens
to coincide with common sense, that if you market something very
actively and seductively and as powerfully as you possibly can,
people tend to consume it."[167]
169. Prof Meier spoke for all three of them
about their frustration at the attitude of industry, not just
in relation to advertising research but in relation to research
generally:
"All of us have had recent experience, especially
with the minimum unit pricing debate. We have had industry critique
after industry critique—basically always saying the same
thing and not responding to our rebuttals. We have always responded
to these industry critiques, but the same points have just been
rehashed without making any reference to anything we have said.
Often it is misrepresentation of evidence, of methodologies, or
picking up on minor inconsistencies that are already corrected
in a final version, but then rehashing that same thing."[168]
170. In 2008 the EAHF commissioned its Science
Group "to look in more depth at the diverging points of view
on the relationship between marketing and volume of consumption
(especially by young persons)".[169]
The Science Group analysed a number of studies and concluded that
"the overall description of the studies found consistent
evidence to demonstrate an impact of advertising on the uptake
of drinking among non-drinking people, and increased consumption
among their drinking peers." On the other hand Credos, a
think-tank created by the Advertising Association in 2010, decided
to undertake a "rigorous and fresh review" of this report,
which disagreed with its findings, and concluded that "more
substantial research will allow conclusions to be drawn based
on firm evidence."[170]
OUR CONCLUSIONS
171. Professors Anderson, Meier and Hastings
were our first witnesses. At that stage of our inquiry we had
not heard oral evidence from the manufacturing, retail or advertising
industries. Now that we have done so, we can understand and sympathise
with the views of our first witnesses. Industry witnesses were
quick to criticise evidence contrary to their interests. They
were less adept at putting forward evidence to persuade us of
views which seem to us to fly in the face of common sense, such
as the supposed inverse correlation between advertising exposure
and harm.
172. In considering this conflicting evidence
on the effects of advertising, we believe the view of Mr Acton
is probably closest to the truth:
"We had a systematic review in the UK of
the evidence on alcohol advertising, which found good evidence
for an impact on adults' alcohol consumption. The effect was quite
a small one, but the evidence for it is quite solid. For the impacts
on children and young people, we have accepted in our national
alcohol strategy that there is good evidence of an impact on children
and young people's alcohol consumption from advertising; but there
are some important evidence gaps, so we do not have a fully quantified
impact. There is very little evidence on effective interventions
to restrict advertising. Those are important gaps. Some European
research projects have contributed to the knowledge here but there
is really a lot more to do, and the EU could play an important
role."[171]
ALCOHOL ADVERTISING AND SPORT
173. In France, advertising of alcohol is regulated,
not by self-regulation or voluntary codes of practice, but by
a law passed in 1991 and known as the Loi Evin, after the Minister
of Health who proposed it.[172]
It has since been amended a number of times, but still includes
the key prohibitions we list in Box 9. Box
9: The Loi Evin
| · No advertising to be targeted at young people.
· No advertising on television (including sporting events which are televised) or in cinemas.
· No sponsorship of cultural or sport events is permitted.
Advertising is permitted only in the press for adults, on billboards, on radio channels (under precise conditions), at special events or places such as wine fairs and wine museums.
When advertising is permitted, its content is controlled. Messages and images must refer only to the qualities of the products such as degree, origin, composition, means of production, or patterns of consumption.
A health message must be included on each advertisement to the effect that "l'abus d'alcool est dangereux pour la santé" (alcohol abuse is dangerous to health).
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174. The Loi Evin, which applies only in France,
means that cultural or sporting events taking place outside France
which include alcohol advertisements or sponsorship cannot be
shown in France. Foreign teams sponsored by alcohol manufacturers
must wear different kits when playing in France.
175. In 2002 the question of the compatibility
of the Loi Evin with EU law came before the CJEU in two related
proceedings. The first was a request by the French Cour de Cassation
for a preliminary ruling following civil proceedings brought in
France by Bacardi.[173]
The second was an application by the Commission for a declaration
that the Loi Evin was incompatible with what is now Article 56
TFEU on the freedom to provide services, because it prevented
the televising in France of sporting events taking place in other
Member States if hoardings displayed at those events promoted
alcoholic beverages.[174]
The United Kingdom Government intervened in support of the Commission.[175]
The Court ruled that the law was indeed a restriction on the freedom
to provide services, but was justified under the public health
exception in what is now Article 52(1) TFEU. The association at
sporting events of alcohol with sports persons seen by the young
as role models is to be discouraged, and the Loi Evin shows how
this can be done compatibly with EU law.
176. Whatever the effect of this law, the fact
remains that between 2005 and 2010 binge drinking among young
adults increased in France, and this trend continues. A report
published in May 2013 gave the results of a survey in 2010 which
showed that for young adults aged between 18 and 25 there was
an increase in binge drinking and drunkenness, with nearly twice
as many men and more than twice as many women affected by drunkenness
in 2010 than in 2005.[176]
EU ACTION
177. In 1989 a Directive known as the Television
without Frontiers Directive[177]
was adopted, which included in Article 15 restrictions on
the content of television advertisements for alcoholic drinks.
After a number of amendments, including a change to its name,
it was consolidated in 2010 into the Audiovisual Media Services
Directive or AVMS Directive,[178]
Article 22 of which is given in Box 10. Box
10: AVMS Directive, Article 22
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Television advertising for alcoholic beverages shall comply with the following criteria:
(a) It may not be aimed specifically at minors or, in particular, depict minors consuming these beverages;
(b) It shall not link the consumption of alcohol to enhanced physical performance or to driving;
(c) It shall not create the impression that the consumption of alcohol contributes towards social or sexual success;
(d) It shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts;
(e) It shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light;
(f) It shall not place emphasis on high alcoholic content as being a positive quality of the beverages.
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178. This Directive, though welcome, does little
more than give legislative effect to prohibitions which, in the
UK and many other Member States, are already contained in codes
of practice governing self-regulation. The new Commission's Work
Programme for 2015 states that results are expected in 2015 from
a study "to assess whether rules on audio-visual commercial
communication for alcoholic beverages have afforded minors the
level of protection required, and thereby contributing to assessing
the [Directive's] regulatory fitness".
179. Section 6.3.3 of the EU Strategy, entitled
'Commercial Communication', includes the following commitments
by the Commission:
"The Commission services will work with
stakeholders to create sustained momentum for cooperation on responsible
commercial communication and sales, including the presentation
of a model of responsible consumption of alcohol. The main aim
will be to support EU and national/local government actions to
prevent irresponsible marketing of alcoholic beverages, and to
regularly examine trends in advertising and issues of concern
relating to advertising, for example on alcohol. One aim of this
joint effort will be to reach an agreement with representatives
from a range of sectors (hospitality, retail, producers, media/advertising)
on a code of commercial communication implemented at national
and EU level. Benchmarks for codes/strategies at national level
could be agreed. As part of this approach, the impact of self-regulatory
codes on young people's drinking and industry compliance with
such codes will also be monitored."
180. These were ambitious commitments, and we
are not aware of any concrete developments flowing from them.
This is regrettable, since the Commission, if it were prepared
to take the initiative, could do much to promote harmonisation
of self-regulation in different Member States, and to see where
self-regulation proves inadequate. It does not need a current
strategy for the Commission to undertake these tasks.
181. We recommend that the Government, in
addition to any scrutiny which it undertakes of the adequacy of
self-regulation of alcohol advertising, should encourage the Commission
to reconsider the undertakings it gave nine years ago to work
to prevent irresponsible marketing of alcoholic beverages, and
to monitor the impact of self-regulatory codes.
Labelling
182. The labelling of food and drink is an area
of shared EU competence. Since 1979 it has been a requirement
of EU law that the labels of drinks containing more than 1.2%
alcohol by volume should indicate the actual alcoholic strength
by volume.[179]
183. The power to prescribe labelling requirements
is now contained in Article 114 TFEU, which allows the Parliament
and the Council to adopt measures on the approximation of the
laws of the Member States "which have as their object the
establishment and functioning of the internal market." In
2011 a Regulation was adopted[180]
consolidating earlier measures on food labelling going back many
years. The Regulation came into force on 13 December 2014.[181]
The definition of 'food' includes drink, and the Regulation in
principle applies to alcoholic drinks. This therefore was an opportunity
for the EU to legislate more prescriptively about the content
of alcohol labelling. However, drinks containing more than 1.2%
alcohol by volume are exempted from the obligation to list their
ingredients or to provide nutritional information.[182]
184. Thus, although alcoholic drinks account
for approximately 10% of calorie intake among adults who drink,
there is no requirement of EU law for drinkers to be informed
of this. Ms Willmott told us: "They need to have the
information (calories) and then they can decide that they want
to ignore it and drink as many glasses of wine as they want, but
they have the information to make an informed choice. I was very
keen to get calories labelled on all alcohol but unfortunately
I did not succeed, I hate to say."[183]
The failure to include calorific content and sugar content on
labels was also a particular concern of Lord Brooke of Alverthorpe's.[184]
185. Member States are not precluded from applying
stricter national regimes on labelling. France is the only State
to have a mandatory requirement for a health warning on the packaging
of alcoholic drinks. It reads (in translation): "Drinking
alcoholic beverages during pregnancy even in small quantities
can have serious consequences for the health of the baby."
Alternatively a pictogram can be displayed. Those we have seen
are far from prominent: they are often very small, and the same
colour as the label.
THE RESPONSIBILITY DEAL
186. The Public Health Responsibility Deal (PHRD)
was an initiative by the Government in 2011 to bring together
government, business, public health organisations and local government,
allowing business to make voluntary commitments within their sphere
of influence to improve public health. In the United Kingdom,
apart from the requirement under the EU Labelling Regulation to
give alcoholic strength, there is no legislation on the health
labelling of alcoholic drinks; instead it is the subject of voluntary
commitments by the industry under Pledge A1 of the PHRD. The pledge
reads: "We will ensure that over 80% of products on shelf
(by December 2013) will have labels with clear unit content, NHS
guidelines and a warning about drinking when pregnant."[185]
187. The 101 'partners' currently committed to
this pledge include all the major manufacturers and retailers
in the UK. SABMiller plc, the largest drinks company in the UK,
told us in their written evidence: "The PHRD has proved an
effective framework for government and private sector business
collaboration. It has encouraged and led the retailers and producers
of beer, wine and spirits to work together with government to
identify visionary solutions to alcohol-related harms."[186]
188. Each 'partner' in the PHRD submits an annual
update of its pledge. Box 11 gives the pledge of Miller Brands
UK, the UK subsidiary of SABMiller. Box
11: Responsibility Deal annual update of Miller Brands UK, April
2014
| "Miller Brands UK continues to apply all 5 aspects of the Government's recommended alcohol responsibility messaging to all of its brands. This includes the three compulsory elements, namely i) clear unit content ii) daily recommended drink guidelines and iii) a warning about drinking when pregnant. We also continue to display a responsibility message, such as "know your limits" and the Drinkaware web address on all our labels."
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189. In 2014 the Department of Health and the
Portman Group commissioned Campden BRI to carry out an independent
market survey to assess whether the 80% target had been achieved.
Their conclusion was that only 69.9% of alcohol on a market share
basis complied with all three elements (unit content, drink guidelines
and warning about drinking when pregnant) in accordance with the
assessment criteria they had been given. Wine labels were by far
the worst. The 80% target was just reached if labels were included
which did contain information but not in conformity with the assessment
criteria. Only 47% of labels were fully compliant and also accorded
with best practice.[187]
190. Even if the 80% target had been fully complied
with, the pledge begs the question, why should it apply to only
"80% of products on shelf"? What about the remaining
20%? It is unlikely that self-regulation and voluntary commitments
will ever achieve 100% compliance. Should there be legislation
at UK level or EU level? We put this question to Ms Ellison.
She replied:
"One of the reasons why we have pursued
a voluntary approach on labelling so vigorously through the Responsibility
Deal is that we are very aware of the time that it would take,
even if we were successful in getting that flexibility, to get
that through. We have been able to report some really important
steps forward with the voluntary approach. Sometimes, on labelling
in particular, I struggle to get colleagues in the Commons to
understand that there is this EU competence … robust voluntary
action can sometimes get you further faster than taking a legislative
route … we had an independent report on it, which was published
in November this year, which showed that just under 80% of bottles
and cans of alcohol on our shelves now have the correct unit and
health information … That has been delivered more quickly
that if we had done it by notifying national legislation to the
EU."[188]
191. In the time the Responsibility Deal has
been running, domestic legislation could certainly have been enacted
to deal with the one in five products that still do not comply
with these labelling criteria.
EU LEGISLATION
192. At EU level, where the industry again secured
in 2011 an exemption from the Food Labelling Regulation,[189]
recital 40 of the Regulation reads: "Taking into account
the specific nature of alcoholic beverages, it is appropriate
to invite the Commission to analyse further the information requirements
for those products. Therefore, the Commission should, taking into
account the need to ensure coherence with other relevant Union
policies, produce a report within 3 years of the entry into force
of this Regulation concerning the application of the requirements
to provide information on ingredients and nutrition information
to alcoholic beverages." Article 16(4) coverts this into
a mandatory obligation, and gives the Commission the deadline
of 13 December 2014.
193. The previous Commission could of course
have met this deadline by reporting before the end of October
2014, when it relinquished office. No report was then published
and, despite the deadline, no report has been published since
the current Commission took office. Officials told us that no
report should be expected in the coming months. They preferred
to wait "in order to obtain a political line on the directions
for the labelling of such drinks." Once the policy line was
defined, they would "resume discussions with the Member States
and interested parties in order to adopt the report as soon as
possible."
194. We recommend that the Government should
press the Commission to propose amendments to the Food Labelling
Regulation. These should make it mandatory for labelling on alcoholic
beverages to include information on the strength, the ingredients,
nutrition, and the dangers of drinking during pregnancy.
195. We recommend that the Commission propose
such amendments, and that thereafter the Government should support
their rapid enactment.
160 IAS, Marketing and Alcohol Factsheet (May 2013):
http://www.ias.org.uk/uploads/pdf/Factsheets/
Marketing%20and%20alcohol%20FS%20May%202013.pdf
[accessed 24 February 2015] See
also the evidence submitted to, and obtained by, the Commons Health
Committee, Alcohol (First Report, Session 2009-10, HC 151-I). Back
161
Q204 Back
162
Q73 (Dr Eleanor Winpenny) Back
163
Written evidence from the Advertising Standards Authority (EAS0008) Back
164
Written evidence from the Portman Group (EAS0018) Back
165
Written evidence from the Association of Chief Police Officers,
paragraphs 53-56 (EAS0021) Back
166
Q55 Back
167
Q12 Back
168
Q12. The reaction of the Advertising Association to the
EAHF report, which we mention in paragraph 170 below, is an excellent
example of this. Back
169
Opinion of the Science Group of the EAHF, Does marketing communication
impact on the volume and patterns of consumption of alcohol beverages,
especially by young people (2008): http://ec.europa.eu/health/
archive/ph_determinants/life_style/alcohol/forum/docs/ev_20090311_co04_en.pdf
[accessed 24 February 2015] Back
170
Credos, Responsible drinking: Time for a responsible debate
(March 2011): http://www.adassoc.org.uk/wp-content/uploads/2014/09/Responsible-Drinking.pdf
[accessed 24 February 2015] Back
171
Q23 Back
172
Loi no 91-32 du 10 janvier 1991 relative à la
lutte contre le tabagisme et l'alcoolisme Back
173
Case 429/02 Back
174
Case 262/02 Back
175
The French Government also intervened in the first proceedings.
In the second proceedings it was the defendant. No other Member
State intervened. A joint hearing was held in the two cases on
25 November 2003 in which Bacardi, the French and United Kingdom
Governments, and the Commission took part. Back
176
Institut national de prévention et d'éducation pour
la santé, La consommation d'alcool des 18-25 ans en
2010 en France: spécifités et évolutions
depuis 2005 (May 2013): http://opac.invs.sante.fr/
doc_num.php?explnum_id=8913
[accessed 10 February 2015] Back
177
Council Directive 89/552/EEC of 3 October 1989 on the coordination
of certain provisions laid down by Law, Regulation or Administrative
Action in Member States concerning the pursuit of television broadcasting
activities, OJ L 298, 17 October 1989, page 23. Back
178
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 of audiovisual media
services (Audiovisual Media Services Directive), OJ L 95, 15 April
2010, page 1. Back
179
Article 3 of Council Directive 79/112/EEC of 18 December 1978
on the approximation of the laws of the Member States relating
to the labelling, presentation and advertising of foodstuffs for
sale to the ultimate consumer, OJ L 33, 8 February 1979, p 1. Back
180
Regulation (EU) No 1169/2011 of the European Parliament and of
the Council of 25 October 2011 on the provision of food information
to consumers, amending Regulations (EC) No 1924/2006 and (EC)
No 1925/2006 of the European Parliament and of the Council, and
repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC,
Commission Directive 1999/10/EC, Directive 2000/13/EC of the European
Parliament and of the Council, Commission Directives 2002/67/EC
and 2008/5/EC and Commission Regulation (EC) No 608/2004, OJ L 304,
22 November 2011. Back
181
With the exception of rules relating to mandatory nutritional
labelling for processed food, which come into force on 13 December
2016. Back
182
Article 16(4). There are a few specific nutritional requirements
in other legislation, such as the obligation of wine labels to
list sulphites and other potential allergens in Commission Implementing
Regulation (EU) 579/2012. Back
183
Q156 Back
184
Written evidence from Lord Brooke of Alverthorpe (EAS0005) Back
185
Department of Health, 'Public Health Responsibility Deal collective
pledges': https://responsibilitydeal.dh.gov.uk/public-health-responsibility-deal-collective-pledges/
[accessed 24 February 2015] Back
186
Written evidence from SABMiller (EAS0009) Back
187
Campden BRI, Audit of compliance of alcohol beverage labels
available from the off-trade with the Public Health Responsibility
Deal Labelling Pledge (October 2014): https://responsibilitydeal.dh.gov.uk/wp-content/uploads/
2014/11/Campden-BRI_Audit-of-PHRD-labelling-compliance-2014-_FINAL-report_October2014-final.pdf
[accessed 24 February 2015] Back
188
QQ233, 241. Mr Skehan had earlier told us ( Q132)
that "we had the Department of Health and the Minister for
Health in the UK saying it is somewhere between 80% and 90%." Back
189
See paragraph 183. Back
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