Public health vs industry wealth - fencing-in commercial speech through labelling and marketing restrictions

18 Dec 2023

Front-of-pack labelling and marketing restrictions to children will limit industries’ commercial speech, a limitation which is much needed for the health of South Africans and is legally sound.

Earlier this year, on 21 April, the South African National Department of Health gazetted a proposed set of regulations titled, Regulations Relating to the Labelling and Advertising of Foodstuffs (R3337), for which the public commenting period closed on 21 September 2023.

R3337’s purpose is to ensure that the information provided by businesses and marketers on food labels and advertisements appears in a standard and accurate manner that helps consumers make better-informed and healthier food purchases.

Although these regulations have the potential to affect commercial speech, we argue in this article that it is necessary and legally justified from a public health perspective.

The need for R3337

Eating unhealthy food is linked to the increasing prevalence of obesity and other non-communicable diseases (NCDs).

A worrying statistic from a recent Stats SA report revealed a 58.7% increase in deaths caused by NCDs between 1997 to 2018 in South Africa.

R3337 is an attempt to address these public health concerns in South Africa, taking into account that half of all South African adults are overweight or obese.

Regulation 51 in R3337 mandates that warning labels in the form of front-of-pack labelling (FOPL) be displayed on pre-packaged foods that are high in sugar, fat, and salt (above recommended nutrient cut-off points) and that contain any artificial sweeteners.

These warning labels will assist people in making healthier food choices.

FOPL is not a novel concept globally, as it has successfully been implemented in several countries, including Chile, Columbia, Ecuador, Indonesia, Mexico, Singapore and Thailand.

In addition to FOPL, Regulation 52 restricts the marketing of such foods to children.

It is estimated that by 2025, there will be 3.91 million overweight children in South Africa. The restriction on marketing to children aims to reduce the appeal and thus consumption of unhealthy foods by children.

Regulation 52 bans the use of celebrities, cartoon characters, competitions, gifts, collectable items and other items that may appeal to children when advertising.

Using the ploy of positive family values to advertise such foods is also prohibited. Should the product require a warning label, then the product’s advertisements must also contain a warning label.

These marketing restrictions align with the World Health Organization’s recommendation that governments around the world adopt regulations that reduce the marketing of foods high in saturated fats, trans-fatty acids, free sugars or salt to children.

What commercial speech entails

From the perspective of industries, these regulations may come across as hindrances to their commercial speech, as they will be compelled to disclose information on labelling and advertisements, and thus will not have full control over how their products are labelled and marketed.

Commercial speech refers to any form of speech, including that which is written, which promotes or relates to some form of commerce. Labelling falls within the ambit of commercial speech, as manufacturers of pre-packaged food and beverages communicate information about the product on labels.

The underlying intention of commercial speech is to promote a commercial transaction, the earning of revenue, or an increase in profit. Therefore, even if such speech is written on behalf of a business, such as advertising done by outsourced agencies, it is considered commercial speech.

Commercial speech, also known as commercial expression or commercial communication, is protected under the right to freedom of expression contained in section 16 of the Constitution.

On the other hand, public health interests are associated with various rights contained in the Bill of Rights in the Constitution such as the rights to human dignity, life, a safe environment, access to health care services and food.

In order for public health initiatives to succeed, fencing in commercial speech rights is required, particularly when the commercial speech is at odds with public health initiatives, such as in this case.

Can the right to commercial speech be limited?

Indeed, a limitation is possible, as section 36 of the Constitution allows for the limitation of rights in the Bill of Rights and highlights exactly when a right can be limited.

Section 36 of the Constitution allows the limitation of rights as long as it is applied equally to all; as long as it is reasonable and justifiable and based on human dignity, equality, and freedom, and as long as there are no alternative less restrictive means available other than limiting the right.

The need for warning labels, which limit commercial speech, is justified by research that demonstrates the efficacy of warning labels in reducing NCDs, and research showing that South African consumers have positive attitudes toward such warning labels, finding them easy to understand and helpful in quickly identifying unhealthy products.

In addition, it is argued that R3337 already embraces less restrictive means, as it does not ban unhealthy foodstuffs but only requires that warning labels be placed on them and that marketing thereof follows certain rules.

Supporting the limitation of commercial speech for the sake of public health is not new.

A similar scenario played out in 2008 when the Supreme Court of Appeal dealt with the British American Tobacco South Africa (Pty) Ltd v Minister of Health (Batsa) case, in which the ban on advertising of tobacco products was being argued for and against by public health and commercial speech proponents respectively.

The court clearly outlined the limits of commercial speech for public health interests by stating the following:

“The right to commercial speech in the context of this case is indeed important. But it is not absolute. When it is weighed up against the public health considerations that must necessarily have been considered when imposing the ban on advertising and promotion of tobacco products it must, I think, give way.”

This was further supported by referring to a Canadian legal judgment:

“When commercial expression is used … for the purpose of inducing people to engage in harmful and addictive behaviour, its value becomes tenuous.”

In the absence of warning labels, there is an increased chance of people consuming unhealthy foodstuffs, as they are not adequately informed of the dietary dangers of the product.

This increases the development of NCDs and, as per Batsa, justifies limiting commercial speech. The Batsa judgment is a cogent indication that public health concerns can and should take precedence over the protections provided to commercial speech when the products concerned are harmful.

Conclusion

Food industries have long profited from their provision and marketing of unhealthy food products to the public.

This has contributed to the increase of NCDs among many South Africans.

Warning labels can assist South Africans, who are already overwhelmed by other political, economic, and social issues, have one less burdensome task to undertake, ie, having to determine whether a product is good or harmful for them and their family when shopping.

Marketing restrictions lessen the chances of children being persuaded into purchasing and consuming those food products which are bad for their health.

The achievement of a healthy South African population requires a certain level of capitalistic sacrifice from industries, including the limitation of commercial speech through FOPL and marketing restrictions. DM

Darshen Naidoo is a researcher at SAMRC/Wits Centre for Health Economics and Decision Science – PRICELESS SA. Currently in the law and policy team, while holding a Bachelor of Laws (LLB) cum laude and currently completing a Master of Laws (LLM) in International Economic Law, his interests include legislative and policy implications on public health, non-communicable diseases, health systems and its reform thereof.

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South Africa

The need for R3337

What commercial speech entails

Can the right to commercial speech be limited?

Conclusion