TY - JOUR
T1 - A missed opportunity for public health
T2 - How impact assessment shaped EU rules on the marketing of unhealthy commodities to children
AU - Lauber, Kathrin
AU - Brooks, Eleanor
N1 - Funding Information:
This work was supported by UK Research and Innovation [ Medical Research Council grant reference MR/T023244/1 ]. The funder had no role in study design, data collection, analysis, decision to publish, or preparation of the manuscript. For the purpose of open access, the author has applied a Creative Commons Attribution (CC BY) licence to any Author Accepted Manuscript version arising from this submission.
Funding Information:
REFIT is part of the Better Regulation agenda which guides EU policymaking, and particularly the actions of the executive, the European Commission. Though not legally binding, the agenda fundamentally determines what constitutes ‘high-quality’ regulation and regulatory processes. At its core, Better Regulation posits that policy should be minimally burdensome to citizens and businesses, evidence-based, and developed in consultation with stakeholders. These norms are implemented through a set of concrete tools: ex-ante impact assessment (IA), ex-post evaluation, and stakeholder consultation, supported by quality control and forward planning mechanisms. While drawing on a seemingly neutral notion of regulatory quality, programmes such as Better Regulation are neither objective nor value-free (Lauber & Brooks, 2023). Their potential to shape policy dynamics is exemplified by well-documented efforts of regulated industries, such as tobacco and chemicals, to influence the rules underpinning the EU's IA regime in ways that make it harder to pass health or environmental regulation (Smith et al., 2010, 2015).The IA process is of particular interest, as it weighs and compares policy options based on their economic, social, and environmental impacts, and is meant to provide a neutral overview of the policy problem and available solutions. The department responsible for audiovisual media services within the Commission is the Directorate-General for Communications Networks, Content and Technology (DG Connect). DG Connect's legislative proposal for a revised AVMSD was informed by a parallel REFIT evaluation and IA, supported by extensive stakeholder consultation. A deeper look into this process, however, reveals a discrepancy: even though mandatory restrictions on HFSS and alcohol advertising were positioned as an option in early documentation, the final, published IA report – which presents the evidence underlying the Commission proposal – suggests that such measures were not assessed. This is particularly perplexing given that this process unfolded amidst sustained calls from public health advocates and researchers to strengthen protections, and substantial evidence for the health harms of alcohol and HFSS food marketing (Anderson et al., 2009; Cairns et al., 2009; Smith & Foxcroft, 2009). The IA report for the AVMSD revision underwent review by the Regulatory Scrutiny Board (RSB), a quality control body without whose positive opinion initiatives do not normally proceed. Documentation accompanying the proposal noted that the RSB first issued a negative opinion in March 2016, prompting a revision and resubmission of the IA. This revised version then received a positive opinion with reservations in April 2016 and underwent further changes before publication in May 2016. In this paper we use the previously unpublished draft IA reports as a starting point to investigate how and why health was side-lined in the revision of EU audiovisual marketing rules.We analysed the available data – focusing on material relevant to the topics of HFSS and alcohol advertising – using three different approaches. First, we sought to establish what had changed during the revision of the IA reports, using a qualitative framing analysis to establish how (non)problems and (non)solutions were discussed and justified. The lead author coded all versions of the IA report using a framing matrix adapted from Jenkin et al. (2011), and the second author read all IA reports in-depth and coded one version, which was used as a basis for discussion of any discrepancies and corresponding refining of the analysis. Identifying changes across IA reports required a detailed comparison between versions, as edits were not signposted. Second, we conducted a content analysis of the evidence and stakeholder input cited in support of claims which relate to HFSS and alcohol marketing across the three versions of the IA report (details in Appendix C), to explore the role of evidence in shaping and justifying the assessment of policy options. Evidence, for this purpose, was approached in a broad sense to capture all sources cited in support of relevant statements. An initial analysis by the lead author was reviewed by the second author, and cases where classification was challenging were resolved jointly. Third, and drawing on broader documentation of the policy process, we used process tracing (Beach & Pedersen, 2019), a qualitative method focused on identifying and testing causal mechanisms, to explore what may explain the observed changes. To do so, we developed three plausible mechanisms based on relevant (grey and academic) literature and coverage of the AVMSD process, and assessed the available data to identify evidential ‘fingerprints’ which support or weaken confidence in each mechanism (see Appendix D for details).Views and information from consultation with stakeholders, regulators, and government representatives are referenced across all versions of the IA report, primarily to present different constituencies' positions on problems and what should (not) be done about them. Consultation input is used most extensively in the first draft IA report (26 instances); this was halved in the second draft (12 instances) and final IA report (13 instances). Regarding HFSS food and alcohol advertising, the public health community's concerns about the ineffectiveness of existing provisions, and accompanying calls for stronger rules, are referenced in the first draft; this notes, for instance, that “[o]rganisations from the public health sector stress the ineffectiveness of the current provision on HFSS food advertising and the limits of codes of conduct” (p. 45). This acknowledgement does not feature in the second draft, and the final IA report only briefly notes that the public health community supports stronger alcohol rules, positioning this at odds with the view of many broadcasters, food and beverage industry actors, advertisers, and some member states.On the advertising of alcohol and HFSS foods specifically, this dilution of the health dimension corresponds to a shift in framing and inconsistency in the use of evidence. Recognition of the weaknesses of the existing rules evolves, between the first and final IA reports, into a discussion of how they can be improved without a change in governance approach. This is accompanied by a shift towards a focus on regulatory simplification and the competitiveness of the broadcasting sector as a whole, exemplified, for instance, by the terms “rigid” and “fit for purpose”, which are only introduced in later iterations. Bizarrely, the key arguments against tighter restrictions (in the form of watersheds) in the final version draw on the same study previously invoked to support the opposite position. Furthermore, our analysis finds no indication within the IA reports that the (by then substantial) body of peer-reviewed evidence on the effectiveness of different approaches to minimising children's exposure to advertising for unhealthy commodities was comprehensively considered by DG Connect. This is despite the inclusion of and reference to relevant research within submissions to the consultation process (DG Connect, 2015). The Better Regulation guidance in place at the time sets out how indirect health impacts should be identified, and requires consideration of whether these impacts affect specific populations (explicitly noting children as an example risk group) (European Commission, 2015a, 2015b). Our analysis, however, indicates that the health impacts of (in)action were not systematically assessed in this case, and that some of the evidence considered and funded by the Commission was absent from the final published IA report.This work was supported by UK Research and Innovation [Medical Research Council grant reference MR/T023244/1]. The funder had no role in study design, data collection, analysis, decision to publish, or preparation of the manuscript. For the purpose of open access, the author has applied a Creative Commons Attribution (CC BY) licence to any Author Accepted Manuscript version arising from this submission.
Publisher Copyright:
© 2023 The Authors
PY - 2024/6
Y1 - 2024/6
N2 - BackgroundThe revision of the European Union's Audiovisual Media Services Directive, which governs the marketing of alcohol and unhealthy food to minors, failed to align with international best practice. Previous research has explained this ‘missed opportunity’ with reference to deficient political will, difficulties advocating for health, and industry pressure. We explore another explanation: the role of the impact assessment (IA) process in shaping decision-making.MethodsWe first conducted an in-depth comparison of three versions of the IA report, employing qualitative content and framing analyses to establish what changed in the substantive content, framing, and evidence cited. Second, we used process-tracing, a qualitative method drawing on multiple data sources, to explore causal mechanisms, to assess why these changes occurred. Data sources include policy documents published proactively and obtained through access-to-document requests.FindingsPreviously unpublished versions of the IA report show that stronger rules on advertising were preferred early in the policy process but later abandoned, and that concern for ‘balancing’ consumer protection and competitiveness shifted to focus on the latter. Following review by the Regulatory Scrutiny Board, a revised IA report narrowed the policy options, omitting mandatory rules on alcohol advertising and presenting self- and co-regulation as the only choice. Consequently, decision-makers were provided with an IA that did not offer adequate information on available measures to protect children.InterpretationChanges made during the IA process, which determines the policy options presented to decision-makers, side-lined health concerns. We argue that engaging with the institutional structures which shape decision-making is crucial for those working to further public health.
AB - BackgroundThe revision of the European Union's Audiovisual Media Services Directive, which governs the marketing of alcohol and unhealthy food to minors, failed to align with international best practice. Previous research has explained this ‘missed opportunity’ with reference to deficient political will, difficulties advocating for health, and industry pressure. We explore another explanation: the role of the impact assessment (IA) process in shaping decision-making.MethodsWe first conducted an in-depth comparison of three versions of the IA report, employing qualitative content and framing analyses to establish what changed in the substantive content, framing, and evidence cited. Second, we used process-tracing, a qualitative method drawing on multiple data sources, to explore causal mechanisms, to assess why these changes occurred. Data sources include policy documents published proactively and obtained through access-to-document requests.FindingsPreviously unpublished versions of the IA report show that stronger rules on advertising were preferred early in the policy process but later abandoned, and that concern for ‘balancing’ consumer protection and competitiveness shifted to focus on the latter. Following review by the Regulatory Scrutiny Board, a revised IA report narrowed the policy options, omitting mandatory rules on alcohol advertising and presenting self- and co-regulation as the only choice. Consequently, decision-makers were provided with an IA that did not offer adequate information on available measures to protect children.InterpretationChanges made during the IA process, which determines the policy options presented to decision-makers, side-lined health concerns. We argue that engaging with the institutional structures which shape decision-making is crucial for those working to further public health.
U2 - 10.1016/j.ssmqr.2023.100369
DO - 10.1016/j.ssmqr.2023.100369
M3 - Article
SN - 2667-3215
VL - 5
SP - 1
EP - 25
JO - SSM - Qualitative Research in Health
JF - SSM - Qualitative Research in Health
M1 - 100369
ER -