Alcohol and food regulation in Australia – legal issues in cancer prevention

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Cancer Prevention Centre, Cancer Council Victoria, Victoria.


Abstract

Unhealthy diet and misuse of alcohol present similar public health challenges. Legal interventions to reduce the impact of these lifestyle factors, including the burden of cancers associated with these risk factors, are also similar. Just as the law has gone some way to creating an unhealthy environment, for example, through a relaxation of the liquor licensing regulatory framework leading to a significant increase in the number of licensed premises it’s so too can it be used to alter the environment to make healthier choices easier, such as amending city planning laws to support walking or cycling over driving. Although interventions for alcohol and unhealthy diet are similar, the manner in which they are employed likely to be different, given the extent to which alcohol is already subject to significant regulation, compared with food.


One third of all cancer deaths in Australia are caused by avoidable risk factors, including consumption of alcoholic beverages and an unhealthy diet. This represents a significant impact on individuals, families, communities and health services, and makes behaviours such as alcohol misuse and unhealthy diet a social rather than merely an individual problem. Responding to alcohol and diet related cancer requires interventions that impact on society and population behaviours and so extend beyond individual choice.

Intuitively, most people recognise that legislation and regulation can affect population health in general terms,2 including, we contend, recognition of the impact of legal and policy measures on the burden of cancer. This paper discusses some of the ways that law and public policy, whether health-related or otherwise, can impact on a population’s healthiness (or unhealthiness), by shaping the environment in which individuals behave in relation to harmful products such as alcohol and unhealthy foods. For present purposes, we define ‘unhealthy foods’ as those which are calorie-dense and nutrient poor.

Legal and policy interventions to address the different risk factors of alcohol use and eating an unhealthy diet are similar and based on measures successfully used in tobacco control (increase price, reduce availability and restrict advertising).  However, the legal landscape for alcohol is quite different compared with that for food. While many laws already exist to control the sale, supply and price of alcohol, few exist in relation to unhealthy food products. This would suggest that while the required interventions are similar, the manner in which they are employed is different. For alcohol, existing laws need to be improved, while for unhealthy food, new laws will need to be introduced.    

Role of law in reducing the burden of cancer

Alcohol is a known cause of cancer; the evidence is convincing that alcohol causes cancer of the mouth, pharynx, larynx, oesophagus, bowel (in men) and breast (in women), and probably increases the risk of bowel cancer (in women) and liver cancer.3 In Australia, an estimated 5070 cases of cancer each year (or five per cent of all cancers) are attributable to chronic use of alcohol.4

Meanwhile, the World Cancer Research Fund has found convincing evidence that excess body fat is a risk factor for six types of cancer – colon, kidney, pancreas, oesophagus, endometrium and post-menopausal breast cancer.3 Cancer Council estimated that in Victoria in 2004, 1100 cancer cases and 500 cancer deaths were attributable to overweight and obesity (based on data from the Melbourne Collaborative Cohort Study and National Health Survey 2004-05). Extrapolating these data to the whole of Australia, there would be approximately 4400 attributable cancer cases and 2000 deaths.

The World Cancer Research Fund report on food, nutrition, physical activity and body fatness makes recommendations to reduce cancer risk, including to maintain a healthy weight, be physically active and to limit alcoholic drinks.3 Individuals may not make healthy choices because contextual legal, political or law enforcement factors may prevent them from doing so.2  Although traditionally law has been seen as a tool to regulate the relationship between individuals or as a set of rules dictating minimum standards of behaviour,5  increasingly it is recognised that law has an important role to play in altering the behaviour of populations. As Parmet notes, the health of populations can be seen as a function of individual choices;5 and these choices are not made in a legal vacuum.    

Laws can be designed to change the environment in which an individual makes health decisions. 
In Victoria, changes to the liquor licensing regulatory framework in 1987 led to a significant increase in the number of licensed premises across the State.6  This increase in licensed premises has been shown to correspond with an increase in alcohol-related harm,6 including rates of alcohol-related disease.7  For example, a Victorian study found a strong association between increases in packaged liquor availability and chronic alcohol-related disease.7  Licensing laws that restrict trading hours of licensed premises, or require the service of low alcohol products at events have the potential to reverse the increase in alcohol-related harm associated with an increase in alcohol outlet density. 

Meanwhile, lack of pricing mechanisms and controls has contributed to a proliferation of cheap energy-dense, nutrient-poor processed foods, and there are many barriers to accessing affordable healthy foods such as fruit and vegetables (particularly in lower socio-economic and rural areas).8  Conversely, laws that increase the price of unhealthy foods, or subsidise the production of healthier foods have the potential to change the food environment and improve access to healthier options. 

Similarly, limited restrictions on unhealthy food advertising to children mean that children continue to be surrounded by unhealthy food advertising in all aspects of their lives – on television, films and the internet, in magazines, supermarkets and shops, on billboards, at school and when playing sport.9 Despite evidence from a number of systematic reviews that food advertising influences children’s food choices, there are very few restrictions on the advertising of unhealthy food to children in Australia.10 Meaningful restrictions to reduce children’s exposure to unhealthy food advertising, particularly on television, would have the potential to improve the environment in which children’s food  preferences are shaped and decisions around food purchasing are made.9,11

Law as a tool for change

The affordability, availability and promotion of alcohol are all controlled by laws and regulation to varying degrees. Meanwhile, interventions that have the effect of decreasing the affordability and restricting the availability and promotion of alcohol have been recognised as top interventions to reduce alcohol-related harm, including the prevention and control of non-communicable diseases.12  As the ‘alcopops’ example  in box 1 shows, even small amendments to current laws can have significant positive effects.  

Similarly, in food policy, the World Health Organisation Global Strategy for Diet, Physical Activity and Health, together with the National Preventative Health Taskforce, have recommended governments address the problems of unhealthy food marketing to children and inadequate food labelling.15 The National Preventative Health Taskforce also recommended regulation of the amount of fats, sugar and sugar in foods and a review of the taxation system to improve access to healthier foods.8

Compared with alcohol, food is subject to less regulation overall, with no food-specific taxation laws aimed at improving health and little legal control over the marketing and availability of foods. Food safety and related labelling is highly regulated and its focus is on excluding toxins and contaminants and providing warnings about allergens rather than preventive health. Thus, although changes are needed in alcohol and food policy alike, a legal response to the burden of disease associated with unhealthy diet is likely to require substantial legislative reform.

The flip side to this approach – that is, legislative reform for better laws – is using the law to encourage compliance with and enforcement of existing laws. Law and policy in relation to alcohol and food is administered by a number of agencies – some which are statutory bodies exemplified by the Australian Competition and Consumer Commission, while others are self-regulatory organisations such as the Advertising Standards Board.  

The primary form of regulation of both food and alcohol marketing is industry self-regulation, which predominantly relies on complaints from members of the public to identify breaches of marketing codes.  For a complaints-based regulatory system to be effective, consumers and public agencies must be motivated and resourced to monitor the conduct of advertisers and submit complaints about the content and placement of advertisements, whether in relation to unhealthy food or alcohol, when such advertisements appear to breach various codes of practice. Yet the current regulatory systems relating to alcohol and food advertising can be confusing, making it difficult for members of the public to lodge complaints. For example, each of the codes that cover food advertising apply in different ways to food advertising to children – to different advertisers and products, different types of advertising and media and different age groups of children.

Box 1: Alcopops
Box 2: Coca-Cola’s ‘myth busting’ campaign.

As the example of Coca Cola’s ‘Myth Busting’ campaign shows (box 2), complaints to regulatory agencies can have a significant impact on the behaviour and practices of some marketers. However, even unsuccessful complaints offer some benefit, insofar as they highlight the limits of current regulatory or self-regulatory approaches and where regulatory reform is required. For example, in 2009 the Alcohol Policy Coalition complained that the labelling and promotion of a beer product contravened the provisions of the Alcohol Beverages Advertising Code (ABAC) by failing to present a responsible approach to the consumption of alcohol beverages, and that the marketing (including the labelling of the product) constituted ‘offensive behaviour’ within the meaning of the ABAC Code. Although the ABAC Panel upheld the complaint in relation to the marketing of the beer (in particular, website material), it dismissed the complaint in relation to the labelling of the product on the basis that the ABAC scheme did not at that time cover product labels and packaging – even though the content of the label was identical to the website content deemed immature, irresponsible and offensive under the ABAC Code. This determination highlighted the narrow focus and inconsistency characteristic of industry self-regulatory codes. 

Conclusion

The law can be responsible for creating an environment that encourages the misuse of alcohol and unhealthy diet.  For example, the laws governing alcohol tax are inconsistent, and give little recognition to the increasing affordability of alcohol and potential for harm.16 Equally, they can be used to provide the legal framework in which to empower people and reverse trends which gear our environment towards unhealthy behaviours.17

As a tool to foster healthy choices, the law can be used to alter the environment in which choices are made – for example, by restricting exposure of children and young people to alcohol and unhealthy food advertising, or to ensure that existing laws and policies are enforced, to the benefit of public health.

Legislation is sovereign, and as such, the best legal interventions for public health are to be found in reform of existing laws, or the introduction of new laws that will be effective at altering the environment to discourage unhealthy or harmful choices, and make healthy choices easier choices.

However, in lieu of large scale legislative reform, important changes can also be achieved by working within the existing legal and regulatory framework, and by ensuring that laws and policies that do exist are wielded with a view to protecting public health.

References

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