UPDATE / 3 Dec 08: Another critique of Ofcom in the junk food advertising matter — I having a difficult time verbalising this properly, but it has to do with public outreach:

In Aug 2006 Ofcom put adverts in newspapers about the elimination of some telecoms price regulations.  No similar outreach was done with HFSS.  Ofcom could have said to the wider public: ‘We have adopted regulations to phase out junk food adverts and here is the broad outline.  Equally as important to you as a parent:  Our research also shows that other factors, some of which are subject to your influence or control, strongly effect children’s food choices…’

And put that message in local and regional newspapers.  Slipped it under every door.

Put it inside every Big Mac wrapper…

Now that’s a tough critique on Ofcom or any public decision maker.  It’s probably enough that a regulator (i) reviews a matter with the best available evidence, (ii) makes a decision in accordance with the law and best regulatory practice and (iii) follows it up with a programmatic evaluation and subsequent policy modifications.  I am talking about a (big) step further — using other evidence adduced in the proceeding in a transcendental manner to share social knowledge more generally.  It goes to the heart of the matter — why are you regulating?  To end junk food adverts?  No.  To improve public health?  Yes.  So, use all the tools available to you and make use of all the research you have performed.

Maybe that’s too much to ask of any regulatory organisation?

* * *

I saw Jason Donovan on TV this morning and it reminded me of another star from yesteryear that has since faded into semi-obscurity:  Ofcom’s restrictions on junk food advertising.  Remember those days — 2004-05?  Jamie’s School Dinners … Daily Mail headlines … Super Size Me…

I didn’t eat at McDonalds for quite some time after that…

Anyway, so I was circling back and revising part of my PhD thesis section about this topic and thought I would share some observations and what I think are some lessons that can be learned.  Feedback welcomed:

*  Overall, I’m sympathetic.  Ofcom really struggled with junk food advertising and the issue surfaced just as the regulator was coming together as a new organisation and had not finalised its procedures for things like impact assessment.  The policy issue of obesity control was pushed, in a semi-panic, into the area of television advertising.  Both Stephen Carter and Ed Richards acknowledged that in insightful newspaper opinion pieces.  But Ofcom was forced by Tessa Jowell to do something about it.  That’s life in the fast lane.

*  Ofcom’s actions were very broadcast-focused and legalistic.  This is a bit surprising if you consider that the regulator was supposed to function as this smooth management consultancy type entity that engaged in joined up thinking and encouraged self and co-regulation.  It’s hard to blame Ofcom — it’s a small part of a much larger nanny state culture.  Still, why in retrospect did Ofcom not call for a summit on media and children’s health to explore voluntary measures the sector could take?  Why were some of its very interesting observations during its initial 2004 policy review (eg, sedentary nature of viewing) not pushed further into the policy arena?

*  For fun, read Ofcom’s July 2004 review and then compare it with the action that was ultimately taken in 2007.  They are not very similar.  In 2004, Ofcom showed all of the factors other than advertising that contribute to obesity.  Ofcom pointedly said it would not restrict television advertising unless it was accompanied by a ‘clear and significant social benefit’.  By 2006 Ofcom’s tune had changed dramatically - now obesity compelled rules.  Ofcom’s Feb 2007 impact assessment predicted huge benefits from new rules (health improvements) and measured them from a financial perspective.

*  And then the back-pedaling began!  By 2007-08 Ofcom’s public statements distanced itself from claims that its regulations could be assessed for any benefits to children’s health.  Now Ofcom would be measuring bureaucratic inputs not social outcomes.  But for anyone who followed the issue from the beginning, it looked like a very big disconnect and … dare I say it … regulatory shirking.  Why regulate at all if no social outcomes can be measured or are not seriously expected to materialise?

The policy cycle the Green Book doesn’t tell you about: Media panic followed by gesture politics leading to regulatory shirking…

*  Ofcom had at least three changes in direction during its policy making that confused and confounded stakeholders:  (i) whether or not it would consider a pre-9pm ban on junk food adverts; (ii) whether its rules would apply to under nines or under sixteens; and (iii) most importantly - whether or not television advertising was a big enough part of the problem to merit regulation.  Changes during policy making may be inevitable, but I thought some of Ofcom’s changes in the junk food advertising debate were abrupt and at the same time not very transparent.  Some of Ofcom’s newer blogs in its policy reviews aid the regulator in this respect — I would imagine a junk food advertising blog would be put in place if Ofcom were to undertake similar work now.

*  The Food Standards Agency was an interesting comparison point.  First, the Nutrient Profiling Model was a tabloid newspaper’s dream — it offered several opportunities to showcase type I / type II error foolish regulatory thinking.  More interesting from my perspective, however, was the fact that even opposing sides of the junk food advertising debates preferred the FSA’s transparency (open, web-cast board meetings) over Ofcom’s closed top-level decision making structure.

* The way things are now, Ofcom’s advertising restrictions (on lawful products, we should always remember) could theoretically continue forever, despite the fact that (i) they may have no measurable effect on public health (and Ofcom is not measuring!); (ii) the behaviour of broadcasters, advertisers and food manufacturers could change and from what I am told, is changing; and (iii) technological and social changes will likely make the sole focus on television seem very quaint.  Ofcom should now seriously consider a sunset provision.

* My overall take for both of us who study public regulation?  I suggest that, in addition to all the other features of better regulation, three lines need to be carefully drawn: (i) a line from the evidence to the proposed policy; (ii) a line from the proposed policy to the costs and benefits of its predicted effects; (iii) a line from the predicted effects to the actual effects.  Otherwise, we are operating in the dark in many respects.

***

And today?  The media and other policy agenda-setters have moved on.  There are (pun intended) bigger problems than obesity now:  First it was knife crime, then it was the credit crunch… next thing you know they’ll be telling us pirates have returned to the high seas…

The right to parlay?  More like guidelines…