Ofcom attempts to scare off health and children's charities from taking legal action
16 June 2006
The broadcast regulator Ofcom has resorted to heavy-handed tactics to try and dissuade the National Heart Forum (NHF) - an alliance of health, medical and consumer organisations - from pursuing a legal challenge to the regulator's consultation on food advertising to children.
Under pressure from the Food Standards Agency, Parliament and a growing coalition of professional and charitable organisations that are all calling for consideration of a 9pm watershed for junk food advertising, Ofcom has threatened to serve up to 144 companies and organisations as "interested parties" to the case, a move which would massively drive up costs and tie up court time. (See a copy of Ofcom's letter of 14 June to the NHF here).
Jane Landon, deputy chief executive of the NHF said: "Ofcom's response to our legal challenge is to try and scare us into abandoning our claim. It is scandalous that a national regulator should use public money to attempt to out-gun our limited charitable resources by ramping up costs and wasting time".
"Since announcing our intention to seek judicial review, Ofcom has published a series of updates and corrections to their original consultation document, addressing a number of the complaints we have raised. It is both extraordinary and depressing that the threat of legal action appears to be the only language that Ofcom understands."
Richard Stein, partner with Leigh, Day & Co, acting for the NHF said: "Ofcom's conduct of this litigation has been remarkable. The latest instalment is that they are proposing to serve several files of legal papers on nearly 150 organisations, ranging from McDonalds to the Gaelic Media Service, inviting them to participate in the judicial review. In my experience, this would be completely unprecedented. It is difficult to imagine a more blatant attempt to frighten the National Heart Forum, a charity, away from bringing their serious and important claim."
Press Contacts
Please contact Jane Landon, deputy chief executive or Paul Lincoln, chief executive, on T: 020 7383 7638.
Notes to editors
The history to the threatened judicial review and Ofcom's actions are outlined below:
On 28 March, Ofcom published its consultation document Television Advertising of Food and Drink Products to Children: Options for new restrictions setting out three options for reducing the impact of food and drink advertising to children for comment by 6 June 2006. (www.ofcom.org.uk/consult/)
On 22 May, the NHF announced that it was seeking judicial review against Ofcom, arguing that it is conspicuously unfair of the regulator to exclude from full and fair consideration a 9pm watershed for junk food advertising in its consultation. The NHF's claim was supported by its members and collaborating bodies including the British Medical Association, the Royal College of Physicians, the British Heart Foundation, Diabetes UK, the National Children's Bureau, The Royal Society for Health, the Faculty of Public Health, the National Union of Teachers, the Northern Ireland Chest, Heart & Stroke Association, Sustain, the International Obesity Task Force, the Health Education Trust, and Which? (formerly the Consumers' Association).
On 1 June, The Office of the Children's Commissioner called upon Ofcom to reinstate the 9pm watershed option to invigorate an accountable and fair consultation process, and redress the current imbalance in food advertising to children and young people.
On 8 June, Ofcom posted on its website a supplementary to the consultation. In it, Ofcom presented new information for the regulatory impact assessment (RIA) and corrected errors in the data and modeling in the original RIA. The result was that both the costs and the benefits of all three worked-up policy packages were reduced. The costs for a 9pm restriction were also reduced (by about £30 million) but the benefits remain the same (82% reduction of advertising impacts on children). The 9pm watershed was now referred to as an "option" on which Ofcom said it would "welcome representations", but held to its view that the 9pm option does not meet Ofcom's regulatory objectives and would be disproportionate. See: http://www.ofcom.org.uk/consult/condocs/foodads/update/ The consultation period was extended to 30 June 2006.
On 14 June, Ofcom published a table setting out the impact on broadcasters of a 9pm restriction. See: http://www.ofcom.org.uk/consult/condocs/foodads/table/
On 15 June, the Food Standards Agency published its response to the Ofcom consultation supporting a pre-9pm watershed ban on junk food advertising.