4. What is the current regulatory system?
4.1 Alcohol marketing in the UK is largely self-regulated, by the alcohol and advertising industries, as well as co-regulated with Ofcom for broadcast advertising. Different industry-developed codes of practice apply to different media, with different bodies overseeing compliance.
4.2 The Advertising Standards Authority (ASA), funded by a levy on the advertising industry, operates codes, which apply to broadcast (e.g. television, overseen by Ofcom) and non-broadcast (e.g. print) marketing. For broadcast media, adverts need to be cleared before transmission to check compliance. Some of the rules that the ASA oversee are underpinned by law. For example, the Communications Act 2003 prohibits alcohol advertising on video-sharing and on-demand services from encouraging immoderate consumption or being aimed specifically at persons under the age of eighteen.
4.3 For product naming, packaging and promotion, the Portman Group’s Code of Practice is applicable. The Code operates alongside current existing legislation. The Code notes it is the responsibility of the producer to ensure a drink’s packaging complies with food regulations and all other relevant regulations or legislation. A separate Portman Group Code of Practice is in place for sponsorship. It is important to note that the Portman Group is funded by the alcohol industry.
4.4 The Codes contain rules on the content of adverts specifically intended to protect children and young people. These include that alcohol marketing must not be likely to appeal particularly to people under 18 years, must not be targeted to people under 18 through the selection of media, and must not feature people drinking who seem to be under 25. There are no specific rules in place intended to protect higher-risk drinkers or those in recovery, although there are general rules around not encouraging immoderate consumption.
4.5 We know that, despite the Codes, children and young people in Scotland see a high volume of alcohol marketing. This suggests that we need to go further to reduce the volume of alcohol marketing seen by children and young people.
4.6 One reason the rules may not be effective is that they are focused on the content of alcohol adverts and entail making subjective judgements. For example, although the current Codes prohibit advertising that is particularly appealing to under 18’s, this is a high threshold to meet. When young people are asked whether alcohol adverts are appealing they often answer that these are, despite self-regulatory bodies decisions that these are not appealing. In theory, within this rule, a marketing campaign can appeal to children, but as long as it also appeals to adults it is permitted this is a high threshold to meet. It suggests that adverts are permitted to appeal to children and young people, so long as they don’t appeal more to them than they do to over 18’s.
4.7 Children often aspire to appear older than they are and may be drawn to products that suggest greater maturity to them. Marketing that is childish will not always appeal to children whereas marketing which is aimed at adults will often appeal to those under 18.
4.8 Another reason that the current system may not be effective is that the Codes do not focus on reducing the volume of alcohol marketing that children and young people see. The system is focused on protecting children at events, and around media that is likely to be solely targeted at them (e.g. children’s cartoon shows). This does not take account of the reality of how children and young people live their lives; that they will attend events and watch or interact with media that is not only for them.
4.9 For example, the current CAP Code rule prohibits alcohol advertising in public spaces if 25% or more of the audience are under 18. This does not prevent most, if any, alcohol outdoor advertising on billboards or public transport, because under 18’s are less than 25% of the population overall. This means that children and young people are routinely exposed to outdoor alcohol advertising as they journey around their communities to school, swimming pools, shops and to see their friends.
4.10 This is also true of sports sponsorship, where the Portman Group’s Code of Practice on Alcohol Sponsorship utilises the same 25% threshold rule. Although under 18’s are less than 25% of the audience watching, for example a Scotland rugby match, this still means that thousands of children and young people see a high volume of alcohol marketing and branding in person and on television.
4.11 Both the ASA led system and the Portman Group systems have a largely complaints-led component to their monitoring and therefore depends on members of the public seeing and then subsequently knowing how to report marketing which may breach the rules.
4.12 The complaints-based system is also by its nature retrospective, meaning that marketing campaigns can continue to run despite being potentially in breach of the rules, until a decision is made. Decisions can take months, meaning that campaigns could have finished by the time anything would be enforced or a campaign is made to stop running. For example, one regulatory body made a decision in February 2018 that a Christmas-themed alcohol campaign had breached their rules; however the campaign ran in November/December 2017 and had finished by the time of the decision. This is in contrast with the Clearcast system for television advertising where adverts must be pre-approved before they are allowed to be shown.
4.13 The WHO recommends that countries restrict alcohol marketing via a legal framework, with strong sanctions, as opposed to taking a self-regulatory approach. This consultation sets out potential areas of restriction which could be introduced via legislation rather than strengthened self-regulatory rules. This is because the consultation largely proposes potential introduction of tighter controls on the volume of alcohol marketing permitted rather than new rules relating to the content of alcohol marketing. Rules focusing on content of adverts are subjective and less effective in protecting children and young people, as set out above.
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