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Ofcom yields to pressure and opens up consultation on a junk food ad ban up to 9pm

21 June 2006

Under threat of judicial review from the National Heart Forum, the broadcast regulator Ofcom has conceded that it will send to all interested organisations and individuals the supplemental consultation document setting out the costs and benefits of a 9pm watershed for junk food advertising, stating that it "welcomes" comments on this option within its current consultation on food and drink advertising to children. Ofcom will now make it clear to those who have already responded, that revised responses may now be submitted.

In a victory for health and children's welfare campaigners, the regulator has shifted from its position in its original consultation document in which Ofcom concluded that it was not appropriate to consult on the 9pm option.

"We are happy that Ofcom has made these significant concessions and made it unnecessary to take them to court. We are therefore withdrawing our application for judicial review." said Jane Landon, deputy chief executive of the NHF.

"Ofcom still maintains that the 9pm option would place a "disproportionate" burden on broadcasters, but it has clearly -albeit reluctantly - acknowledged the ground swell of public opinion that this option merits serious debate as part of this consultation.

"We have been stunned by Ofcom's attitude to this consultation, the cynical way it has weighed the protection of advertising revenues over the protection of children's health and the shabby tactics it has used to try and frighten us into abandoning our case. It remains to be seen when the final proposals are published, whether the concessions squeezed out of Ofcom by our legal challenge amount to a genuine willingness to consider the 9pm option.  If not, we do not discount the possibility of a future action being necessary."

Press Contacts

Jane Landon, deputy chief executive, or Paul Lincoln, chief executive of the National Heart Forum, on: 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 28 April, the NHF's solicitors wrote to Ofcom asking them to make clear that the 9pm option was genuinely open for consideration and asking that the 9pm option be worked up into a proper impact assessment in a supplemental consultation paper. Ofcom refused to publish a supplemental consultation paper, or to write to consultees and interested parties informing them that the 9pm option was genuinely open for consideration.

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 Public 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 supplemental consultation paper. 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.

On 16 June, the National Heart Forum exposed Ofcom's attempts to force the charity to abandon its judicial review by threatening to serve almost 150 companies and organisations as "interested parties" to the case - a move which would massively drive up costs and tie up court time.

On 21 June Ofcom agreed to send its supplemental consultation paper to all interested parties with an appropriate covering letter, thus making clear that consultation responses on the 9pm option were welcomed.