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SUBMISSION on the Public Health Bill
To the Health Committee
1. Introduction
This submission is from the New Zealand Television Broadcasters' Council (the "NZTBC"),
P O Box 68032,
Newton,
Auckland 1145.
The NZTBC is an industry organisation representing the non-competitive interests of the major free-to-air broadcasters in New Zealand. The members are Television New Zealand (TVNZ), TV Works and Maori Television. The Chairman of the NZTBC is Brent Impey, Chief Executive Officer of TV Works.
The NZTBC Chairman, Chief Executive Officer of TVNZ (Rick Ellis) and NZTBC Chief Executive wish to speak to this submission. The NZTBC can be contacted via its Chief Executive, Justine Wilkinson on
09 379 2421 and/or justine@nztbc.co.nz.
2. Executive Summary
The NZTBC is largely supportive of the broad intentions of the Public Health Bill ('the Bill") in particular those clauses relating to communicable diseases. However, the NZTBC's support of the Bill is not unqualified and this submission makes specific comment regarding our concerns with the Bill relating to non-communicable diseases.
The NZTBC believes the Bill, if passed unchanged, has the potential to:
- make the free to air television industry in New Zealand uneconomic;
- lessen the quantity and quality of international and domestic content New Zealanders can see on their screens; and
- help grow subscription television in New Zealand.
Our key concerns with the Bill are:
- the extensive powers available to make regulations under broad and largely undefined parameters (clause 374 (r) and (x));
- the Director-General of Health's ability to issue codes and guidelines (clauses 81-87), while not legally enforceable, may conflict with self regulation codes and regimes currently in place. These codes and guidelines also represent a significant departure from industry self-regulation which has been operating successfully within the advertising sector for over 35 years; and
- several aspects of Part 3 of the Bill provide for significant decisions to be made and changes to be implemented without any consultation with interested stakeholders or proper consideration of comments received from stakeholders (e.g. clause 88 (d) and (e)).
The NZTBC submits that clauses 374 (r) and (x), and clauses 81-88 of the Bill are unnecessary and should be deleted.
3. Significant powers should not be exercised through regulation
The Bill provides for broad regulations to be made that will have significant and irrevocable impact on large sectors of the New Zealand economy and the way of life for New Zealand citizens.
For example clauses 374(r) and (x) provide for regulations to be introduced regarding:
(r) the prohibition or regulation of the importation manufacture, packing, or sale of any thing likely to increase a risk to public health ;
(x) reducing or assisting in reducing, risk factors (within the meaning of clause 79) associated with, or related to non-communicable diseases.
Such powers are extremely broad in their scope and provide little real guidance as to what the regulations should address. It is submitted that such powers should not be devolved to regulation, but should remain to be exercised by Parliament as a whole. If this cannot be achieved, we support the need to narrow down these very wide discretionary powers.
As a related matter, the proposed regulatory powers do not require that the negative economic/other impact be taken into account. Such one-sided decision-making could result in significant economic costs being imposed on a particular sector for unsubstantiated public health gains.
4. If regulation is required, supporting key facts must be sought and considered
Notwithstanding our comments above, should clauses 374(r) and (x) remain in the Bill we submit that regulations should only be proposed after full consideration has been given to:
- strong empirical/scientific data which supports the need to regulate;
- the extent to which the sector affected by the regulation is responsible for causing or contributing to the non-communicable disease; and
- the economic impact that the proposed regulation will have on the affected sector.
Obesity, for example, is a multi-faceted non-communicable disease with a number of contributing factors including:
- eating habits and cultural preferences;
- socio-economic status;
- lack of exercise;
- genetic disposition;
- lack of education; and
- unhealthy diets (i.e. 'it's not what we are eating its how we are eating').
International research (Appendix 1) shows that television advertising is a minor contributing factor to obesity. The research shows that television advertising:
- had a 2% influence on children's food choice (Wiggs 2008, OFCOM 2006 and 2007, Guittard 2006, Bolten 1983);
- affects children's advertising in a modest way (OFCOM 2007); and
- one among many influences on children's food choices (OFCOM 2007).
While there is no question that television is an influential medium the industry strongly rejects being labelled solely responsible for obesity, especially as there is a general consensus that the contribution of advertising is small.
As currently drafted, clause 374(x) would allow advertising on television to be heavily regulated with no consideration of the degree to which advertising contributes to obesity or the economic cost that such a regulation would impose.
A regulation could be passed to, say, ban all television advertising of food and beverages deemed "unhealthy". Putting aside the issue of how you deem what foods are "unhealthy" (some cereals, for example, are high in sugars), such a ban would cost the free-to-air television industry around $36 million per annum and reduce the ability of the television companies to meet shareholder objectives and other social responsibilities.
More specifically the ability for each broadcaster to purchase and commission programming would significantly diminish and have an immediate impact for the viewer at home and New Zealand's creative industries. The New Zealand advertising market is already very competitive and when this is coupled with the fact that we operate in a small economy, the removal of $36 million per annum from the free to air broadcasting industry would make profitability for TVNZ and TV3 marginal.
Removing this $36 million per annum would also further strengthen the position of subscriber television whose business model is reliant on monthly customer subscriptions and not advertising.
It is our view that television advertising takes an unfair share of the blame for obesity and is regrettably an easy target for regulation. We submit that the extent to which television advertising can mitigate non-communicable diseases such as obesity and the economic cost of regulation be objectively considered, prior to proposing any regulations in this area.
5. Self regulation should remain in select areas
The Bill provides for a comprehensive regulatory regime to be imposed over all diseases.
Whilst the introduction of such broad regulatory powers is understandable in so far as it is necessary to protect the health of the New Zealand public, there are certain areas in which industry can also help the Government achieve this objective through a robust system of self regulation.
Self regulation is arguably preferable to imposed regulation because it is cost-effective to implement, often results in tougher thresholds being achieved with minimal monitoring, enforcement and review systems. All of these achievements are directly attributable to having greater "buy-in" from the industry/industries responsible for self-regulating.
It is submitted that such systems of self regulation should remain as the means by which the public's health is protected from non-communicable diseases and that the regulatory regime proposed in the Bill only be implemented where no adequate system of self regulation currently operates.
Continuing with the previous example of obesity, the NZTBC has been actively involved in a range of initiatives that address the wide range of contributing factors to obesity and nutrition related illnesses as outlined in Food Industry Group's Interim Annual Report for 2007/08 (Appendix 2 refers) and as agreed in our 5-point plan with the Ministers of Health, Broadcasting and Education. The 5-point plan aims at improving food and beverage advertising to children through a number of initiatives, including:
- providing free commercial airtime to the Health Sponsorship Council's social marketing campaign aimed at improving children's healthy nutrition; and
- introducing a new Children's Food (CF) rating (Appendix 3 refers).
6. Codes and Guidelines should not conflict with existing self-regulatory regimes
Clauses 81-87 of the Bill represent a material departure from the long standing approach of industry self-regulation. This is particularly so for the advertising sector which has been successfully self-regulated for 35 years. These clauses also arguably depart from the partnership approach with the wider industry as recommended in the Government's Response to the Inquiry into Obesity and Type 2 Diabetes.
The NZTBC submits that the proposed codes and guidelines in clauses 81-87 are unnecessary and are likely to conflict with the good works achieved through the existing self-regulatory codes and regimes. If these clauses cannot be removed from the Bill they should be amended to ensure the Director-General of Health avoids issuing codes or guidelines on matters where self-regulatory codes and regimes already exist. For example: the Advertising Standards Authority's Advertising Codes of Practice - April 2007.
7. If no self regulation is permitted then consultation must be preserved
In the event that it is determined that the regulatory regime proposed in the Bill shall apply to all diseases (with the attendant consequence that existing self regulation systems are rendered nugatory), it is submitted that no regulatory steps should be implemented in respect of non-communicable diseases without comprehensive consultation having been undertaken with all relevant stakeholders.
In the context of certain diseases it is appropriate that the Bill provide for rapid regulatory responses to be taken with little or no advance public consultation. For example, actions to be taken in response to a potent communicable disease (such as Avian/Bird Flu) would need to be rapid and decisive - thereby precluding the opportunity for broad public consultation. Importantly, such action taken would undoubtedly be supported by strong empirical/scientific data - thereby confirming that the action taken was necessary and appropriate in the context of the particular disease and the threat posed to the public's health.
By contrast, the causes of non-communicable diseases are quite often incapable of being definitively proven by empirical/scientific data. The debate that has raged for years around the threat posed by cell phone use and cell phone towers is but one illustration. As such a significant risk exists that regulatory steps could be implemented to address perceived causes of non-communicable diseases, those actions could in turn have irrevocable damage to large sectors of the economy and the New Zealand way of life, and then could be discovered that the perceived cause was not in fact a cause at all (or a far lower risk factor than initially perceived). Again, the hysteria that from time to time arises in relation to cell phone use confirms the dangers of taking decisive action in the absence of strong empirical/scientific data and public consultation.
To guard against such actions being taken (which in hindsight may be acknowledged as having been unnecessary), it is strongly submitted that the Bill should be amended to ensure that no regulatory steps be taken in relation to non-communicable diseases without there being consultation with all relevant stakeholders. In this context there should be sufficient time for such consultation to occur before any regulatory steps are implemented.
The NZTBC submits that several aspects of the Bill fail to include appropriate consultation. We elaborate below.
A. Regulatory powers exclude any consultation
Clause 374 of the Public Health Bill states:
374 Regulation about public health generally
The Governor-General may, by Order in Council, make regulations at any time for all or any of the following purposes.
(r) the prohibition or regulation of the importation manufacture, packing, or sale of any thing likely to increase a risk to public health;
(w) prescribing or providing for the fixing of reasonable fees to be paid in respect of any specified matter under this Act or regulations made under this Act, and the persons or authorities entitled to claim and receive those fees;
(x) reducing or assisting in reducing, risk factors (within the meaning of clause 79) associated with, or related to non-communicable diseases.
Therefore, should clauses 374(r), (w) and (x) remain in the Public Health Bill we request that these clauses be modified to ensure that prior to a regulation or fee being proposed there is extensive public consultation and proper consideration of any comments received. This request is similar to the requirements outlined in sections 27(3) and 29 (3) of the Fair Trading Act 1986. Under these sections the Minister of Consumer Affairs has the power to issue consumer information and product safety standards by regulation. However, the Minister must first consult "with such persons or representatives of such persons" who are "substantively affected" and "those persons have has the opportunity to comment to the Minister" and "The Minister has considered such comments".
B. Codes and guidelines exclude full consultation
Under clauses 81-87 the Director-General of Health has the ability to issue a code or guideline to a particular sector if it is believed that the sector can reduce a risk factor that contributes to non-communicable diseases. Prior to issuing any code or guideline the Director-General of Health must consult with only the sector affected by the code or guideline. We submit that that this consultation should be widened to include all interested stakeholders.
Following the consultation above, if the Director-General of Health still requires codes and guidelines then we recommend that it is discussed with the relevant industry. The industry would conduct an independent review in order to establish a self-regulatory code, complaints and enforcement system. The regime would be independently monitored and reported to interested stakeholders. If the industry declined to self-regulate then the Director-General of Health could impose codes.
C. Minister of Health's recommendations to Parliament excludes full consultation
The Minister of Health's ability to recommend amendments to the law, Public Health Act and/or regulations for the purpose of preventing or reducing the impact of non communicable diseases (or managing related risk factors) is based solely from the recommendations received from the Ministry of Health (Clause 88(d) and (e)). We strongly believe that the Minister of Health should also consult widely with the public (not exclusively with the Ministry of Health) before proposing any legislative changes or regulations to Parliament.
8. Conclusion
The NZTBC concludes that the Public Health Bill is in the most part necessary and long overdue. However, we submit that that clauses 374 (r) and (x), and clauses 81-88 of the Bill are unnecessary and should be deleted.
If these omissions cannot be achieved, we believe that further amendments to the Bill are necessary, in order to prevent unintended consequences from being actioned and causing irrevocable damage to New Zealand, namely:
- Clauses 374 (r) and (x) should be amended to narrow down the very wide discretionary powers, particularly on matters which can have significant economic impact and accordingly should only be decided by Parliament.
- Regulation in accordance with clause 374 (r) and (x) should only be implemented after:
(i) receipt of strong empirical/scientific data supporting the need to and the benefits of regulating;
(ii) consideration of the extent to which the sector affected by the regulation contributes to or is responsible for causing the non-communicable disease; and
(iii) consideration of the economic impact that the proposed regulation will have on the affected sector.
- The development of all codes and guidelines under clauses 81-87 should not conflict with existing industry codes and self-regulation regimes.
- Wider public consultation and consideration of any comments received is also needed prior to:
(i) developing codes and guidelines (clauses 81-87);
(ii) recommending any legislative changes (clause 88 (d) and (e)); and
(iii) proposing any regulation or fee (clause 374 (r), (w) and (x)).
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