You're not you when you're hungry - A reality check on the new children's food advertising law

The confectionery industry is booming despite growing health awareness. However, the new Children's Food Advertising Act could severely restrict the advertising of sugary, fatty and salty foods aimed at children. While health associations see the law as an important step, the industry criticizes the far-reaching advertising bans. Whether and when the law will actually come into force remains uncertain. Until then, the future of confectionery advertising remains open.

Since the Duplo, advertised as the “probably longest praline in the world”, mutated into the “smartest praline in the world” in 2016, confectionery advertising has finally conquered the digital age. Despite growing health awareness in Germany, the confectionery industry continues to rush from sales record to sales record - according to reports, domestic sales in Germany rose by a full 11.9% in 2023 (source: BDSI estimate). The confectionery business is booming, despite the fact that average sugar consumption per capita per year has fallen by a good four percent over the same period (source: Federal Ministry of Food and Agriculture).

New law to reduce supposedly unhealthy food consumption

In Germany, children and young people consume around twice the recommended amount of sweets and other snacks, while their consumption of fruit and vegetables is only around half the amount recommended by the WHO. The German government's coalition agreement therefore provides for two measures: Firstly, the federal government has set itself the goal of establishing scientifically based and target group-oriented reduction targets for sugar, fat and salt. Secondly, advertising aimed at children for foods with a high sugar, fat and salt content is to be banned in programs and formats for under 14-year-olds. On February 27, 2023, Federal Minister of Agriculture Cem Özdemir (Alliance 90/The Greens) presented his draft bill for a new law to regulate food advertising aimed at children (Draft Children's Food Advertising Act - KLWG-E). The fourth revised version of the draft bill, dated June 28, 2024, is now available; although it is still unpublished, it has already been leaked.

Criticism from all directions

The draft bill has been met with a lot of criticism. As a result, little has changed. It is highly doubtful that the final law, which is likely to be passed before the end of the legislative period, will be anything like the draft bill: Both coalition partners, the FDP and SPD, have criticized the current draft, which should actually have been introduced to the German Bundestag before the 2024 summer recess. The draft is “actually not usable” and “clearly goes too far from an economic perspective”. There are also growing concerns about the scope of the proposed regulations in the circles of the Green Business Dialogue.

Far-reaching advertising bans would effectively make confectionery advertising impossible

Amongst other things, two far-reaching advertising bans give reason for the criticism: Firstly, a total ban on advertising to children in Section 4 (1) KLWG-E. This prohibits advertising for foods containing sugar, salt and fat in excess of the maximum levels defined in Section 3 KLWG-E if this advertising is aimed at children in terms of type, content or design, regardless of the chosen medium (radio, press, printed matter, internet, television, video platforms, outdoor advertising). According to the explanatory memorandum to the law, the interpretation of the term “design” should be extremely broad and include child-specific keywords, celebrities and figures or symbols that are popular among children. This includes cartoon characters and mascots as well as the inhabitants of Sesame Street, for example. The current list of design criteria in Section 4 (1) sentence 2 KLWG-E is designed as a catalogue of standard examples and is not intended to be exhaustive in this respect. The decisive factor for the application of the advertising ban is the overall effect achieved by the respective advertising. Only grown-ups will then be able to “love it so” in the “happy world of Haribo” – not kids.

In addition, Section 4 (2) KLWG-E regulates a partial advertising ban for the relevant foodstuffs, irrespective of the target group. According to this, regardless of the type, content or specific design of the advertising, it should be prohibited to advertise if it is aimed at children in terms of its temporal, spatial or content-related context. In concrete terms, this means: no confectionery advertising at specific times for different advertising media, within 100 meters of schools and similar facilities or in the context of content that also appeals to children. In fact, the latter should almost always be the case even if the advertising is actually aimed at an informed adult audience. For example, TV advertising for confectionery from Monday to Friday between 5 p.m. and 10 p.m. will simply be banned in future. While the idea of a “circumvention ban” is interesting in theory, the practical implementation raises questions. For example, what child watches television indiscriminately between 5 and 10 p.m. without parental supervision? Here too, it is likely to depend on the specific television program and whether it is particularly interesting for children.

One-sided burden of responsibility

However, the addressees of the regulation are not the providers of media services and other advertising platforms - the law explicitly refers to these as “advertising media”. Section 2 KLWG-E expressly only addresses the “operator” of the advertising, i.e. the party that conceives, produces, actively places and commissions the broadcasting of the advertising:

This includes food companies, advertising agencies and influencers, according to the explanatory memorandum. Media services, on the other hand, remain excluded. They remain subject only to the voluntary obligations imposed on them in Section 6 (7) of the Interstate Treaty on the Protection of Minors in the Media, according to which they must take appropriate measures to effectively reduce the impact of advertising with the food in question on children. This regulation is in turn based on Art. 9 Para. 6 of the EU Audiovisual Media Services Directive (AVMSD), which, however, is only a minimum harmonization and may therefore be implemented more strictly in national law than provided for in the text of the directive. The main purpose of addressing food companies and advertising agencies in the KLWG-E is to avoid possible collisions with the Interstate Media Treaty and the Interstate Treaty on the Protection of Minors in the Media and thus to circumvent the legislative competence of the federal states for broadcasting. This is undoubtedly to the detriment of the industry, which at the end of the day is dependent on the legally compliant implementation of its orders by the media services.

Fear of severe penalties

The legal consequences of infringements are set out in Sections 6-8 KLWG-E. Additionally, competition law shall apply to the provisions of the KLWG-E, so that in addition to the consequences under public law, infringements may also result in warnings, lawsuits and measures for interim legal protection by competitors, competition and consumer protection associations (Section 6 KLWG-E). The state authorities responsible for monitoring compliance with the advertising bans (Section 7 KLWG-E) can punish violations with official complaints and fines of up to EUR 30,000 (Section 8 KLWG-E).

German confectionery manufacturers disadvantaged as responsible parties

The legitimate criticism of the draft is manifold: the categorization of foods and the definition of what constitutes too much of the various nutrients is already being questioned. Accordingly, 70% of all foods could be affected. The effectiveness of advertising bans also appears questionable. The draft therefore goes too far in terms of content. Apart from this, the draft bill also suffers from considerable technical weaknesses that could have a massive impact on Germany's attractiveness as a business location.

At first glance, addressing producers instead of media services (see above) may seem like a clever trick to undermine the legislative competence of the federal states. However, against the background of the AVMS Directive, the new regulations will only be able to apply to those companies that have their place of business in Germany. There is precisely no mandate under European law, as the directive only addresses the self-regulation of media services and does not formulate any obligations to regulate advertising in the member states. In this respect, an actual entry into force of the KLWG could lead to a migration of the marketing departments of large confectionery manufacturers and correspondingly specialized advertising agencies to other European countries. From there, the commissioning of advertising to media services would be possible without further ado. The regulation would be inefficient and at the same time discriminate against all those who maintain their headquarters in Germany. “Quality in a Square.” is different.

Even if the media services were still included as addressees of the regulation in the further legislative process, the law in its current form would only shift the focus of advertising from linear television and billboard and radio advertising to the Internet. In this case, the ban would virtually invite circumvention due to the required domestic reference of the law. Furthermore, the broadcasting state principle in Art. 3 para. 1 AVMSD requires the guarantee of free reception of audiovisual media services from other member states. It will therefore not be possible to prevent advertising on foreign television channels anyway. Apart from the blatant discrimination against nationals associated with the current draft of the KLWG and the economic consequences for Germany as an industrial location, Prof. Dr. Burgi, holder of the Chair of Public Law, Economic Administrative Law, Environmental and Social Law at Ludwig-Maximilians-Universität, sees a number of other significant constitutional concerns in his 90-page expert opinion on the draft bill.

Conclusion: No implementation to be expected for the time being

Even apart from the substantive and technical shortcomings, however, it is very unlikely that the KLWG will be passed in this legislative period - too many changes would be necessary in too short a time. A draft that is ready for a decision would have to be submitted to the Bundestag by April 2025 at the latest in order to complete the legislative process in time. It is doubtful whether the law would stand up to a review procedure without such amendments. And so, for the time being, we can continue to “dare to be tender” and enjoy other evergreens of confectionery advertising.

It is therefore still too early for the industry to take concrete measures. The actual implementation of the drafts to date and the actual scope of the Children's Food Advertising Act remain too unclear for the time being. It is extremely likely that restrictions on confectionery advertising will come into force in the coming years. In this respect, and also against the backdrop of an increasingly health-conscious population, it will certainly be beneficial to examine the feasibility of adjusting the sugar content in certain foods such as soft drinks.