On July 10, 2020, the national authority on consumer protection in Colombia (Superintendencia de Industria y Comercio, or SIC) imposed a fine of approximately US$500,000 on Postobón, the biggest soda company in the country. The decision found that Postobón’s deceptive advertising of the sugar-sweetened beverage Hit negatively impacted consumers’ rights to quality products, as well as their right to receive clear, comprehensible and accurate information. In addition, the SIC indicated that the rights of children were especially affected, given the powerful impact of advertising on their psyche.
This is a landmark ruling for consumers and for children’s rights, even though it can still be challenged both administratively and judicially. In this article, we will discuss some of the key aspects of the decision in relation to the rights to health and adequate food.
The role of the food and beverage industry in the pandemic of obesity and noncommunicable diseases (NCDs)
The decision to sanction Postobón sheds light on the illegal behavior of the food and beverage industry in advertising their products based on deceptive claims. In this case, such claims included advertising Hit as “juice,” “real fruit,” and “natural,” as well as stating that this product made children stronger and that it was perfect for their lunchbox. In fact, Hit contained only 8% to 14% fruit and included a number of artificial ingredients. The SIC found that the ads conveyed an unsubstantiated message associated with good health, and even generated the expectation that Hit was as nutritious as fruit, therefore misleading consumers.
Though the SIC did not address whether or not Hit poses a risk to the health of consumers, as this would fall under other authorities, its decision constitutes a unique opportunity to discuss the promotion of ultra-processed foods as a commercial determinant of health, which is defined as “strategies and approaches used by the private sector to promote products… that are detrimental to health.” Regarding sugar-sweetened beverages in particular, the World Health Organization (WHO) has warned about their impact on health, stating that “[t]he calories provided by sugar-sweetened beverages have little nutritional value and may not provide the same feeling of fullness that solid food provides.” Thus, as the WHO points out, “total energy intake may increase which can lead to unhealthy weight gain.” Unhealthy diets are a key contributing factor to noncommunicable diseases (NCDs), including cardiovascular and chronic respiratory diseases, cancers, and diabetes, which, in turn, are one of the major challenges of the 21st century.
The food and beverage industry undoubtedly plays a role in this situation. The deceptive advertising of Hit (even though eventually sanctioned) is a clear example of how corporations often make it difficult for parents and children to navigate diet-related decisions. By promoting ultra-processed products, including sugar-sweetened beverages, corporations establish themselves as a powerful driver of the pandemic of obesity and NCDs, to the extent that they have even been considered vectors of disease. The promotion of ultra-processed foods begins early, when corporations extensively use advertising and other forms of communications to market food and beverages to children—most of which are drastically out of line with dietary recommendations. In doing so, the food and beverage industry shapes the early formation of eating and consumption habits, many of which persist to adulthood.
Due diligence in the context of unhealthy diets
Recognizing the threat posed by the food and beverage industry, the UN Special Rapporteur on the right to health recently called for increased regulation in order to mitigate the detrimental impact of its actions on the enjoyment of human rights. He recommended that States adopt appropriate regulation “to ensure these industries use clear and accurate product labelling and information that allow parents and children to make informed consumer decisions.”
On one hand, States have the obligation to protect the rights to health and adequate food, and to prevent third parties from interfering with such rights. According to the UN Special Rapporteur, in the context of unhealthy diets, this obligation implies the regulation of the food and beverage industries’ activities, “to ensure they convey accurate, easily understandable, transparent and comprehensible information on their products”, as well as “develop regulations and intervene, for instance, to restrict marketing of food products with excessive amounts of critical nutrients”.
In terms of due diligence, the SIC not only protected consumers’ rights in this particular case, but also complied with the duty of all public authorities to protect human rights, such as the rights to health and adequate food. Regarding children in particular, the resolution rightly took into account that this group is in a situation of vulnerability. As the Special Rapporteur affirmed, “[c]hildren are especially vulnerable to diet-related NCDs because they may be dependent on others, such as parents or schools, for food, and because they are more susceptible to marketing strategies.”
On the other hand, the food and beverage industry has the obligation to respect the rights to health and adequate food, which means a duty to “(a) avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur; [and] (b) seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.” Nevertheless, it is clear that public regulation —as opposed to self-regulation— is the only evidence-based mechanism to prevent harm caused by the food and beverage industry.
By now, the food and beverage industry is (or should be) well aware of the link between the consumption of unhealthy products and NCDs, as well as the impact that advertising has on people, especially children. They should meet a higher standard of due diligence, proactively avoiding the use of deceptive advertising. This means refraining from using claims that they either know to be inaccurate or that are denounced as such by consumers’ associations, instead of simply waiting for authorities to impose sanctions.
Sanctions are not enough
Considering that deceptive advertising of ultra-processed foods, including sugar-sweetened beverages, has adverse impacts on human rights, States should impose stricter and more comprehensive regulation on the food and beverage industry. This is especially relevant in light of the notorious shortcomings of self-regulation. In this sense, States must adopt a comprehensive package of public policies to promote healthy food environments.
Moreover, a case-by-case approach has proved inadequate to guarantee human rights. Even though the SIC decision was groundbreaking, it was only adopted two and half years after the civil society organization Red PaPaz filed the complaint. Throughout this time, the deceptive advertising campaign continued to air, parents and children were exposed to the deceptive ads, and parents based their diet-related decisions on misleading information, while Postobón profited—perhaps even enough to make up for the fine.
In protecting public health and upholding human rights, States must facilitate healthy decision-making by at least ensuring that the public is provided with accurate information. More often than not, this means stopping corporations from using effective strategies to incentivize the consumption of products that put people’s health at risk.
Isabel Barbosa is a Brazilian attorney and an Associate at the O’Neill Institute. Ariadna Tovar Ramírez is a Colombian attorney and consultant for the Healthy Families Initiative at the O’Neill Institute. They are both researchers at the Global Center for Legal Innovation on Food Environments at the O’Neill Institute.