I’d like to start by acknowledging the traditional custodians of the lands we are all meeting on today, in my case the Bundjalung People, and pay my respects to elders past, present, and emerging.
In February this year, I started my PhD with The George Institute and the Prevention Centre. My PhD is situated within a larger Prevention Centre project, investigating ways of activating NCD prevention provisions under the South Australian Public Health Act by developing codes of practice. And today I am going to presenting on my preliminary examination of the use of codes of practice to better understand how public health law can be used to address overlapping systems of NCDs and climate change.
Before I go further I would like to acknowledge the Prevention Centre partners, including SA Health who are key partners in this project.
As many of you know, there is a growing body of research demonstrating that the environment has implications on human health and that the burden of NCDs will be exacerbated considerably in the near future as a result of climate change.
This was highlighted recently in the Lancet Commission report on The Global Syndemic of Obesity, Undernutrition and Climate Change, which defines a syndemic as a synergy of epidemics, co-occurring in time and place, interacting with one another, and sharing underlying societal drivers. Modern relationships between the environment, food and health are complex and present serious high-level policy challenges. This is due to their overlapping systems, which require cross-portfolio or whole-of-government policy action to achieve the greatest impact. For example, food production and land use (Agriculture) have implications on access and affordability of nutritious foods (Health), which is threatened by severe weather events resulting from climate change (Environment) and exacerbated by commercial waste due to lengthy transportation across Australia (Transport, Local Government).
One prevention mechanism that can be used to address these systems is public health law. Public health law (PHL) can be used as an effective prevention mechanism as it provides governments with the power to improve population health. It has traditionally been well used to achieve cross-portfolio action in communicable disease prevention, injury prevention particularly in workplace health and safety, food safety and foodborne illness. Yet, it is often underutilised in NCD prevention despite having the potential to, directly and indirectly, impact on health and the environment.
South Australia (SA) however is pioneering the use of public health law of NCD prevention and environmental sustainability. It is the first and only jurisdiction in Australia to include NCD-prevention provisions in their Public Health Act. It is also the first Act with a sustainability Principle and Object on creating and maintaining a healthy environment. This kind of focus on public health, social, economic and environmental factors is rarely embedded in Objects of Acts and is uncommon even in planning laws.
This makes the SA public health Act extremely novel and this area of work quite novel. Unfortunately, these provisions remain ‘inactive’ until operationalised by the Minister through issuing codes of practice (Codes).
Under Part 8 of the SA Public Health Act, Codes of Practice can be issued in relation to preventing or reducing the incidence of NCDs. Specifically, codes of practice can be issued on the way in which specific goods or services are marketed, distributed and made available to the public.
To gain a better understanding of how public health law could be used to address the overlapping systems of NCDs and climate change in South Australia, we need to gain an understanding of how codes of practice are used. Not much is known about the use of codes of practice by governments, or what makes them powerful, evidence-based and an effective regulatory instrument
Codes of practice can be issued by governments or industry as a mechanism for regulation. However, when reviewing the literature there is no clear legal definition of a code of practice and codes often seem to be used interchangeably with other terminology such as guidelines. And industry like to use terms like initiative or scheme.
When we look at common definitions of other terms, a standard outlines mandatory rules, a procedure sets out the process to implement or enforce the standard or policy and a guideline provides advice. Guidelines are thought to be less prescriptive than codes of practice and voluntary in nature. However, this does not always appear to be the case, as guidelines are sometimes used interchangeably with codes of practice in some jurisdictions and can sit under legislation, for example, Liquor Promotion Guidelines that sit under Liquor Regulations.
The way in which these instruments are used varies by jurisdiction and varies by industry which could be why these terms are often used interchangeably. Some codes are very prescriptive while others are more open to interpretation. They also vary in length and sometimes are written out as a guide or handbook rather than legal text. However, the aim is similar – to provide a practical guide for meeting obligations or recommendations, and are used as a method of regulation.
They may also be used differently because of the different governance or regulatory frameworks that are operating. When looking at Braithwaite’s responsive regulation pyramid you can see there is a hierarchy of regulation from mandatory standards or legislation to voluntary compliance. And I’m going to present some case studies on government and industry codes that sit at different levels of the pyramid.
The first is an example of self-regulation. It is the Food and Grocery Peak Body’s responsible marketing code, which restricts the way goods are marketed to the public – specifically the way unhealthy food and drinks are marketed to kids.
The code is administered and funded by the food and advertising industries, it relies on a complaints-based monitoring system and is voluntary meaning that it only applies to those that sign up to it.
Industry reports suggest that compliance with the code is high. However, the voluntary nature and lack of proactive monitoring and enforcement makes it difficult to know the true level of compliance. The mechanism is a source of market failure as it allows industry itself to draft the ground rules and there is no incentive for them to cover the loopholes and be stringent in the way they have drafted the regulation. The system enables businesses to be in compliance without necessarily promoting the social or public health intention of the code. There is a clear conflict of interest in this form of self-regulation as the business imperative – selling more products – is at direct odds with reducing marketing.
Evaluations of the initiative also found it to be ineffective due to “inadequate definitions for when and where food marketing to children can occur, permissive definitions of foods considered appropriate for advertising, and exclusion of persuasive marketing techniques that are appealing to children. Fundamentally the main objective of the initiative is limited as the narrowly worded provisions require marketing to not be directed at children rather than reducing the overall exposure or ensuring marketing is not appealing to children. This means that cartoon characters can be used to advertise chocolate so long as it is under the guise of invoking nostalgia in adults – and therefore is not directed to children.
The second case study is an example of a standard with discretionary punishment. The Food and Grocery Code of Conduct is a voluntary industry standard prescribed under the Competition and Consumer Commission Act 2010. It is an example of a code that applies to an entire business sector – in this case, the food and grocery sector – and provides a framework for dealings between retailers, wholesalers and suppliers.
The code is administered by the Australian Competition and Consumer Commission an independent agency funded by the government. However, the ACCC only handles systemic-wide compliance issues. One-off disputes are to be handled internally and by mediation and arbitration at the cost of the business. It is also the only voluntary industry standard under the competition and consumer act. In some respect, this maybe makes the code an example of enforced self-regulation.
A recent government review of the code found it was difficult to determine if the code was effective as there are only four signatories, all retailers, no wholesalers, manufacturers or suppliers have signed. But the review also suggested that voluntary nature was sufficient as the signatories made up 75% of the market share and therefore are capturing a large part of the industry. However, it could be argued that these large retailers (Coles, Woolworths and Aldi) are signing because they have the market power and they have the financial resources to handle internal disputes. There are few mechanisms in place to support smaller retailers or suppliers.
The objective of the code is to provide a framework for dealings between businesses, for example in supply agreements, delisting products and quality and acceptance of fresh produce. However, the code is not very prescriptive and does not set out any processes for implementation but rather encourages negotiations to be managed in good faith. For example, there is no minimum standard for the quality of fresh produce which means that there can be inconsistencies between retailers and the possibility of rejection of fresh produce because it doesn’t meet the retailers’ subjective standards. The lack of focus on the consumer limits the scope when there are opportunities to use these agreements to ensure the availability and affordability of health foods as well as reducing food waste.
The third case study is an example of a mandatory standard. Like the public health Act, South Australia’s Liquor Act empowers the minister to issue codes of practice. One code of practice that is currently operational is the late night trading code of practice, which aims to reduce the amount of alcohol-related violence and antisocial behaviour in and around licensed premises late at night. This code of practice restricts the way goods are made available to the public.
The code is administered by the liquor regulator in the attorney general’s department, who conducts proactive monitoring of compliance. The code is prescriptive and specific in that it only applies to liquor licences trading past 3am. The requirements for licensees are based in evidence but consulted on by stakeholders, licensees and community. The code requires businesses to conduct a risk assessment and encourages the creation of less risky business models, for example closing before 3 am and therefore don’t need to abide by the late-night code.
Review of the code found that it was effective at reducing late-night alcohol-related offences, violence and harm; it improved local amenity and created safer and healthier environments; and it achieved its objectives in minimising harm from alcohol and ensuring the sale and supply of alcohol is safe and within community expectations.
So what lessons can be learned from these codes and applied to the development of codes specifically focused on NCD-prevention and environmental sustainability?
- Effectiveness of codes can be limited by narrowly worded provisions and a lack of clear, measurable objectives
- Independent compliance monitoring improves the effective operations of codes of practice and promotes transparency
- Self-regulation must be considered within the context of conflicts of interest
- Clear, enforceable and evidence-based guidance is critical to the enactment of public health law.
All three case studies demonstrate the different regulatory approaches that can be used for codes of practice. Going back to our syndemic framwork – while none specifically set out to address NCD prevention and environmental sustainability they all do have impacts. For example, the late-night code effects public spaces, norms and even hospitals in terms of reduced violence.
Under the South Australian public health act, codes of practice can be issued on the way in which specific goods or services are marketed, distributed and made available to the public. They have the best chance of being effective if they proactively consider human health and wellbeing and ecological health and wellbeing from the outset, are founded on evidence, have some level of accountability and are prescriptive enough to achieve the objectives without creating loopholes.
The burden of non-communicable diseases (NCDs) will be exacerbated due to climate change. Public health law can be used as an effective prevention mechanism, providing governments with the power to improve population health. Yet, it is often underutilised.
South Australia is the only jurisdiction to include NCD-prevention provisions in their Public Health Act. It is also the first Act with a sustainability Principle and Object on creating and maintaining a healthy environment. However, these provisions remain ‘inactive’ until operationalised by the Minister through issuing codes of practice (Codes).
Using South Australia as a case study, this presentation looks at public health law to drive action on the syndemic of non-communicable diseases and climate change. A literature review was conducted on the use of Codes in public health law to understand their relevance and how they can activate provisions in the Act.
The review found that Codes are used as a self-regulatory mechanism by industry. They can also be used by governments to support legislation by issuing guidance on the way goods and services are marketed, manufactured, supplied or accessed by the public. For example, Codes may include information regarding the placement of unhealthy products away from registers to prevent impulse purchases, or minimum requirements for local produce to limit transportation, waste and emissions. The effectiveness of Codes can be limited by narrowly worded provisions. Clear, enforceable and evidence-based guidance is critical to the enactment of public health law