AVMSD - de-regulation through self-regulation?

Earlier this summer, European Parliament and Bulgarian Presidency of the Council agreed on an updated EU Audiovisual Media Services Directive (AVMSD). Unfortunately, European legislators did not grasp the opportunity to improve provisions for alcohol advertising.

The revised text maintains much of the same provisions with regards to alcohol advertising, as in the 2010’s version of the Directive, namely Art 22 which states:

Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria:
(a) it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages;
(b) it shall not link the consumption of alcohol to enhanced physical performance or to driving;
(c) it shall not create the impression that the consumption of alcohol contributes towards social or sexual success;
(d) it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts;
(e) it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light;
(f) it shall not place emphasis on high alcoholic content as being a positive quality of the beverages.

Over the years, a number of scholars highlighted problems with the phrasing ‘specifically’ aimed at minors. This provision creates a massive loophole of defining what constitutes ‘specifically aiming at minors’ which the European Institutions have failed to fix with the current revision of AVMSD.

The only positive development is that advertising of alcohol in on-demand audiovisual media services, with exception of sponsorship and product placement, shall comply now with the criteria listed above in Art 22.

Promoting self-regulation

The main worrying development of the revised AVMSD, is it continuous promotion of self-regulation and co-regulation. The final text is slightly less aggressive in this respect than the European Commission’s proposal, but still one can’t fail to notice that the purpose of the AVMSD is to deregulate advertising.

Art 9 (2) states:
Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a (1) regarding inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages.

Article 4a (1) to which revised AVMSDs refer to on several occasions lies down more detail regarding these ’codes of conduct’:

1. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct adopted at national level in the fields coordinated by this Directive to the extent permitted by their legal systems. Those codes shall:
a) be such that they are broadly accepted by the main stakeholders in the Member States concerned;
b) clearly and unambiguously set out their objectives;
c) provide for regular, transparent and independent monitoring and evaluation of the achievement of the objectives aimed at; and
d) provide for effective enforcement including effective and proportionate sanctions.

2. Member States and the Commission may foster self-regulation through Union codes of conduct drawn up by media service providers, video-sharing platform service providers or organisations representing them, in cooperation, as necessary, with other sectors such as industry, trade, professional and consumer associations or organisations. These codes shall be such that they are broadly accepted by the main stakeholders at Union level and shall comply with points (b) to (d) of paragraph 1. The Union codes of conduct shall be without prejudice to the national codes of conduct.

The Commission shall make these codes publicly available and may give them appropriate publicity.

In cooperation with the Member States, the Commission shall facilitate the development of Union codes of conduct, where appropriate, in accordance with the principles of subsidiarity and proportionality.

By reading the list of the stakeholders involved one can already see the imbalance between civil society and economic operators.

How will Member States and the European Commission define ‘the main stakeholders in the Member States concerned’. These provisions raise serious questions that the voice of public health advocates will not be taken into account.

Researchers have consistently documented the failure of self-regulatory codes when it comes to alcohol advertising.

It is puzzling why the European legislator has chosen so boldly to promote self-regulation throughout the AVMSD, without noticing the nuances of specific provisions.

Video-sharing platforms

It is considered that the added value of the revised AVMSD is that it reflects a new approach to online platforms.
However, if one looks closely, in relation to alcohol advertising it is maintaining the status quo.

Article 28a states:
1a Member States shall ensure that video-sharing platform providers under their jurisdiction comply with the requirements set out in Article 9(1) with respect to audiovisual commercial communications that are marketed, sold or arranged by those video-sharing platform providers.

Article 9(1) in relation to alcohol only states:

(…) audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages;

This provision just expends the legal loophole identified above.
For the video-sharing platform providers the revised AVMSD again refers to self-regulation and co-regulation:
Art 28a (3)
For the purposes of the implementation of the measures referred to in paragraphs 1 and 2, Member States shall encourage the use of co-regulation as provided for in Article 4a(1).

In majority of the European countries advertising provisions on video-sharing platforms and social media platforms are filled with loopholes. A vacuum happily filled by alcohol producers that created their own self-regulatory codes.

Revised AVMSD is proposing wide spread promotion of self-regulation and co-regulation including the social media platforms. This is music to the ears of the marketers and alcohol producers who are already working on such self-regulatory codes, needing only a stamp of approval by the European Institutions, which the agreed upon compromise on AVMSD delivers.

There is strong and consistent evidence to show a link between exposure to alcohol marketing and increased alcohol consumption amongst young people: a number of systematic reviews have concluded exposure to alcohol advertising increases the likelihood that young people start drinking at an earlier age, and to drink more if they already use alcohol.

Campaigners have been for years suggesting that there needs to be a robust review of the rules governing alcohol adverts conducted by independent public bodies.