Joanna Krakowiak

No more junk food at schools in Poland?

The Polish parliament is currently discussing draft amendments to the Law on Food Safety and Nutrition which aims to eliminate unhealthy food from school shops and to prohibit all forms of promotion of unhealthy foods within educational institutions.

Bans on the sale of certain foods in schools are in force in several countries including Canada, Latvia, France and the UK. France, like the state of New York, have gone further, having introduced bans on the advertising of certain foods to children. In Hungary, foods considered unhealthy are taxed at a much higher tax than other types of food.

The Polish parliament (Sejm) is currently discussing draft amendments to the Law on Food Safety and Nutrition dated 25 August 2006 (unified text Official Journal 2-1, item 136, no. 914 with amendments), which aims to eliminate from school shops food that is deemed to be unhealthy, and to prohibit all forms of promotion of unhealthy foods within educational institutions. Is this an announcement of impending hard times for manufacturers of delicacies beloved by children and despised by healthy eating experts?

What is the current situation?

Currently in Poland there are no restrictions as to which tasty delights can be sold and advertised in Polish school shops and cafeterias. Many of them are evaluated as unhealthy by dietary experts. Images of children may appear on the labelling and advertising of foods with virtually no restrictions, regardless of whether or not the advertised food is intended to be consumed by children. In this respect, the provisions of Polish law is so liberal that except in special cases (such as messages which exert excessive pressure or indeed emotional blackmail on the parents) a child engaged in food advertising is not questioned. As a result, children are even advertising products addressed exclusively to adults, such as coffee.

Risk of claims in the future?

The World Health Organization warns that the percentage of obese children is increasing, and overweight children if left untreated can grow into adults suffering from serious diseases such as diet-related diabetes or high blood pressure.

Improper food advertising, particularly that involving children, or directed to children, may in future lead to claims from people claiming their health has been ruined by unhealthy diets. It cannot be excluded that such claims would be directed against food companies that hadn’t changed their advertising methods on time. It is true that from a legal point of view, it would be very difficult to prove to the court that the ill health was the direct result of excessive consumption of the advertised product. Nevertheless, whatever the eventual verdict, the negative publicity would be enormous and difficult to repair.

On the other hand national governments looking for savings in future spending on health care and reimbursement of medicines required for the treatment of diet-related diseases are trying through legislation to limit the phenomenon of over-consumption of food, which eaten without moderation can be dangerous to health.

What is junk food?

According to the draft amendments to the Law on Food Safety and Nutrition, the sale of certain categories of foods considered unhealthy by the legislature if consumed in excessive amounts will be prohibited to children in pre-schools, primary schools, secondary schools and other educational institutions and childcare centres. Examples are: sweets containing more than 10g of sugar per 100g of product, fast/instant foods with sodium content greater than 300mg per 100g of product, and carbonated and non-carbonated soft drinks with added sugars and artificial colours as well as energy and isotonic drinks. The advertising of such products is to be prohibited as will be serving them in pre-schools and school canteens.

What sanctions are considered?

If it would appear that the banned products are advertised, sold or served, the director of the facility would have the right to terminate the contract with the entity that breached the ban (e.g. school shop franchisee or catering company) with immediate effect. In turn, sanitary inspection authorities would have the right to impose a fine of up to 30 times the average monthly salary in the preceding year on the entity violating the prohibition (i.e. up to PLN 92,000 which is approx. EUR 22,000).

What does the proposed prohibition mean for food businesses operating in Poland?

For food producers who would be prohibited from selling their products to schools, the adoption of this regulation would mean the loss of a sales channel as well as huge and difficult to quantify losses in brand image. A ban on sales in schools could lead to the stigmatisation of such products and result in decreased sales across other distribution channels. The planned regulation means that manufacturers should now be reviewing the recipes of their products. If it turns out that the manufacturer may be covered by the planned ban on the sale and advertising in schools, to assess the possibility of changes in the composition or method of manufacture of their products.

What are the sensitive issues in food advertising to children in Poland?

Food manufacturers who want to target the advertising of their products at children or use images of children in the ad, should verify the design of such advertising at least in terms of the following criteria: a) that the ad does not exploit the credulity of children, b) that the ad does not directly call on the children to purchase products, nor encourage them to put pressure on their parents or other people to buy your product, c) if an ad does not abuse the children’s trust of their parents or teachers. These are basic requirements that food business operators have to observe in Poland irrespectively of any further reaching prohibitions that may be adopted in the future.

Need for adapting ethical standards

As shown in the WHO report prepared for project Stan Mark (project on Standards for Marketing Food and Beverages to Children in Europe), leading food manufacturers draw up detailed rules on how to promote their products to children, not only in terms of school shops, but also in advertising on websites, social media, in films as product placement, or during sporting events as sponsorship. Given the global trend to limit food marketing directed at children, it is worth considering that having a corporate policy regarding this aspect of the business, and scrupulous verification of advertising campaigns involving children and aimed at children has become a fundamental requirement for responsible business and food producers.

Joanna Krakowiak, Life Science and Regulatory Law Practice Group, Wardyński & Partners

The article was published in Deutsche Lebelsmittel Rundschau, April 2014