On 19 December 2007, the Audiovisual Media Services Directive came into force. The Directive covers all EU audiovisual media services (including on-demand services) and amends and renames the Television without Frontiers Directive. EPHA was heavily involved in the adoption of the Directive, which had a number of concerns raised by the public health community. EPHA has put together a briefing in order to keep members up to date on developments and provide an overview of the Directive in its implementation phase.
The Commission acknowledges that the Directive provides less detailed regulation, but claims that it is more flexible and modernises TV advertising rules to better finance audiovisual content.
The Directive seeks to preserve cultural diversity, protect children and consumers, safeguard medial pluralism and combat racial and religious hatred. Furthermore the Directive ensures that audiovisual media communications do not encourage behaviour prejudicial to health and safety.
Briefing on the Audiovisual Media Services Directive
On the 19 December 2007, the Audiovisual Media Services Directive came into force . The Directive covers all EU audiovisual media services (including on-demand services) and amends and renames the Television without Frontiers Directive. The Commission acknowledges that the Directive provides less detailed regulation, but claims that it is more flexible and modernises TV advertising rules to better finance audiovisual content.
The Directive seeks to preserve cultural diversity, protect children and consumers, safeguard medial pluralism and combat racial and religious hatred. Furthermore the Directive ensures that audiovisual media communications do not encourage behaviour prejudicial to health and safety.
The Directive must be transposed in national law by the end of 2009.
What are the major public health concerns surrounding audiovisual media services?
EPHA welcomed the revision of the Television Without Frontiers Directive and generally agreed with the Commission’s approach to finding a technology neutral approach to the regulation of all audiovisual commercial communications whether linear or non-linear (i.e direct or indirect advertising). However, at the time EPHA expressed concern that there should not be a downward harmonisation or an abolition of important audiovisual commercial communication rules in the TV sector.
EPHA’s concerns were rooted in the potential impact such a Directive may have on public health. The revision of the advertising framework impacts directly on public health issues such as food, tobacco, alcohol and medicinal products. Of equal concern was the ability of the commercial sector to co-regulate or self-regulate. The regulation of non-linear communications is particularly problematic, especially when it comes to the protection of minors and protecting the health of all Europeans.
At the time of the proposal, EPHA identified a number of key concerns:
– Commercial communications to children of foods that contribute to an unhealthy diet (high in fats, salt and sugars) need to be regulated.
– A ban on commercial communication of alcoholic beverages to minors was welcomed, but EPHA called for a watershed on the advertising of alcoholic beverages between 6am-9pm.
– EPHA encouraged the Commission to opt for co-regulation rather than self-regulation and to ensure that it is
(i) supported by effective legislation,
(ii) there are independent advisory bodies involved closely in the regulation process and
(iii) minimum criteria of co-regulation are included in the text of the Directive.
– EPHA insisted that cigarrette and tobacco bans be upheld in the Directive and be extended to non-linear services as well, as the only way of providing more effective protection.
– The ban on commercial communications on medicines and medical treatment should be upheld and extended to all audiovisual media services, and not just television.
– Both surreptitious advertising and product placement of unhealthy foods, alcohol, tobacco and medicinal products must remain banned. EPHA called for this to be extended to all audiovisual media services .
The underlying goal of the Directive remained the same: providing a single market for audiovisual content with European standards. However it has been established that advertising has an impact on children’s food and drink preferences, purchase behaviour and consumption. Among those concerned with public health, the advertising of unhealthy food and drinks, alcohol and tobacco significantly contributes to poor health outcomes at a population level.
What’s new in the Audiovisual Media Services Directive?
The new Directive covers all audiovisual media services- that means traditional television (linear service) and video-on-demand (non-linear services). Because users have different degrees of control over on-demand audiovisual media services, only a basic tier of rules apply to them, but the rules on advertising and protecting children are stricter for television broadcasts. This is known as ‘graduated regulation.’
The new rules have a broad definition of what constitutes audiovisual commercial communication, including sponsorship, product placement, teleshopping, etc. This decision was taken to ensure that all forms of commercial audiovisual content are covered by the same set of common rules, whatever the mode of delivery. In terms of product placement, the Directive defines the conditions under which product placement is permitted (e.g which programmes; identification requirement; no undue prominence, etc.)
Existing rules (from the Television Without Frontiers Directive) on protecting consumers, children and human dignity are maintained, and new challenges are addressed, such as the promotion of unhealthy foodstuffs.
All forms of audiovisual communications for cigarettes and tobacco products shall be prohibited, whereas rules on alcohol stipulate that commercial communication shall not be aimed specifically at minors and shall not encourage excess consumption of such beverages. The new Directive introduces stricter rules on alcohol for television advertising and teleshopping. Audiovisual commercial communication for medicinal products and medical treatment (on prescription) shall be prohibited.
In the above-mentioned fields covered by the Directive, Member States shall encourage co-regulation and/or self-regulation . These regimes should be broadly accepted by the main stakeholders in the Member States concerned and should provide for effective enforcement. With regards to the advertising of unhealthy food and drinks in children’s programmes, the Directive states that Member States and the Commission must encourage media service providers to develop codes of conduct curtailing such advertising. The Member States and the European Commission are obliged to monitor and asses the fulfillment of this obligation. The new rules also recognise both the existence and the role of national independent regulators, and encourage them to cooperate among themselves and with the Commission on issues of jurisdiction.
What are the potential limitations of this Directive?
The main issues of concern for EPHA are closely linked to the implementation of the Directive and enforcement of the co-/self-regulatory systems and codes of conduct. In a number of cases, the wording in the Directive (such as ‘broadly accepted’, ‘effective enforcement’, and ‘encourage’) makes implementation and subsequent monitoring and assessment more difficult.
Self-regulatory codes, for example, are based on voluntary codes of conduct drawn up by the advertisers, agencies and the media. They are applied by self-regulatory bodies or committees set up for this purpose and funded by the advertising industry itself.
Despite industry’s claims that self regulation on advertising is effective, many NGOs have concerns that voluntary codes are not sufficient to restrain unacceptable practices. These concerns are further fuelled by the fact that self regulation is most commonly adopted by economic operators under threat of government regulation. In the view of many health experts, these codes tend towards under-regulation and under-enforcement and are often use for public relations purposes. According to a briefing paper that EPHA prepared on co-regulation and self-regulation, the main problems with self-regulation and co-regulation are:
• Safeguarding public interest- economic operators might use these systems to serve their own commercial interests at the expense of health and consumer benefits;
• Enforcement- few co-regulation and self-regulation initiatives are subject to monitoring and even fewer impose sanctions if their provisions are breached.
• Legitimacy- co-regulation in particular, can endow private interests with real law-making powers.
The specific provisions on health within the Audovisual Media Services Directive relate to a number of other health-related activities at the European level.
The Directorate General for Health and Consumers (DG SANCO) has led a number of policy initiatives on health determinants. For example, on alcohol and nutrition the European Commission has implemented strategies with strategic areas for action . Marketing communication is identified in both strategies and DG INFSO is consulted when the strategies are reported on or monitored.
Furthermore, these strategies have resulted in the formation of multi-stakeholder forums (the Platform for Action on Diet, Physical Activity and Health and the Alcohol and Health Forum ) where members are required to submit voluntary actions. Many industry associations have committed to implement self-regulatory measures on the marketing of products to children and young people. The commitments will be considered in the monitoring of the strategies.
What are the next stages in implementing the Directive?
Member States had two years from the entry into force of the Audiovisual Media Services Directive to transpose its provision into their national legal systems. The Directive became fully applicable in December 2009.
According to Commission reports, only Romania had completed the necessary steps to fully implement the new Directive by December 2008. The other 26 as well as the countries of the European Economic Area and the candidate countries were still in the process of putting it in place. However, by December 2008, some Member States had not even completed the consultation of stakeholders on the main options for implementing the new rules.
The Commission has been assisting the Member States and has been organising regular discussions with the national administrations in the framework of a ‘contact committee.’
On 7 December 2009, the Directorate General for Information and Society (DG INFSO) organised a workshop on the marketing to children of foods high in fat, salt or sugar (HFSS).
Among other amendments, the 2007 Directive introduced Article 3e (2), which states that governments and the Commission must encourage media service providers to develop codes of conduct regarding inappropriate advertising of “unhealthy” food and drinks in or accompanying children’s programmes.
In 2010 the Commission will review industry self-regulatory measures as regards obesity-related issues and will assess the way these measures have been implemented and what effect they are having. It will also determine if other approaches are needed.
With regards to tobacco, the Framework Convention on Tobacco Control has been ratified by the European Community and 26 European Union Member States. According to Article 13, Parties must work towards a comprehensive (so direct and indirect) advertising ban by 2010. Parties whose constitutions do not allow for a comprehensive ban must still restrict tobacco advertising, promotion and sponsorship within the limits of their national laws .
Please find the full briefing paper attached.
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For further information
– Information on the Audiovisual Media Service Directive on the European Commission website
–Platform for action on Diet, Physical Activity and Health
EPHA related articles
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