Battling the bulge: Is a ban on children's food and beverage advertising consistent with freedom of expression?

Obesity is increasingly recognised by policymakers as a threat to public health and wellbeing. Despite obesity’s many causes, one commonly cited concern of public health advocates is the prevalence of food and beverage advertising. In particular, concerns have focused upon the targeting of unhealthy food and beverage advertising towards children. The current evidence reveals children’s vulnerability to product advertising and its consequential effects upon children’s food-related attitudes and behaviours. Though the evidence of a link between food advertising and obesity is equivocal, it is sufficient to make the case for a ban on the advertising of unhealthy food and beverages to children. However, any advertising restrictions upon commercial advertising must be consistent with the right to free expression under the New Zealand Bill of Rights Act 1990. An analysis of the theoretical justifications underlying free speech protections suggests greater leeway should be afforded legislators to regulate in the face of a public health crisis. In spite of the New Zealand Government’s willingness to rely upon a self-regulatory framework for advertising regulation, the success of statutory advertising restrictions internationally illustrates the potential for a stronger approach. Though a lack of evidence precludes an objective assessment of the efficacy of the current self-regulatory scheme, the theoretical incompatibility of self-regulation with the achievement of public health goals underscores the need for government-led regulation. Ultimately, the growing threat posed by the obesity epidemic, the absence of reasonable alternatives to statutory restrictions and the narrow scope of a ban on the advertising of unhealthy food and beverages to children mean the suggested ban represents a demonstrably justified limit upon free expression.