Bill S-228, "An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children)", has been undergoing legislative review since late 2016. It has been the subject of much debate and is still awaiting Royal Assent. To supplement Bill S-228, Health Canada published a regulatory proposal for consultation in the summer of 2017, but to date, Health Canada has not published any draft regulations.
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| https://gowlingwlg.com/en/insights-resources/articles/2019/does-my-food-ad-market-to-kids/ |
1. The scope of the prohibition
In the latest publication available, Bill S-228
prohibits the advertisement of "unhealthy food in a manner that is
directed primarily at children". In the Guide, Health Canada suggests that
the prohibition would be limited to advertisements that target children in
relation to foods that meet certain nutrient content criteria. Health Canada
clarifies that the prohibition should not capture adult-oriented advertisements
communicated in mixed audience settings or delivered via mixed audience
mediums. In addition, Health Canada removes the qualifier
"unhealthy", which could mitigate the stigmatization of prohibited
foods.
2. The age of
restriction
In the Guide, "children" refers to persons
under 13 years of age, which aligns with the House of Commons Standing
Committee on Health recommendations from May 1, 2018.
3. The test for
determining whether a particular food advertisement is prohibited
First, Health Canada will look at whether the
advertisement targets children under 13, in consideration of the setting, the
medium, and the message, design, characteristics and techniques of the
advertisement. The use of characters from popular children's programming and
the offering of toys as incentives are particularly influential child-directed
advertising techniques. However, the following advertisements would fall
outside the scope of the prohibition:
- An advertisement communicated in a mixed audience setting (e.g. at an amusement park or restaurant) that uses a design, characteristics and techniques, which do not target or appeal to children
- An advertisement delivered on an unrated
medium (e.g. professional sports broadcast) at a time when children
constitute less than 15% of the audience; and
- An adult-oriented advertisement that uses
bright colours, fun lettering or animated characters (e.g. granola bar
with adult messaging on an age-gated mobile game).
Second, Health Canada will determine whether the
subject food meets the nutrient criteria for advertising restrictions.
Advertisements featuring more than one food would be restricted if one of the
foods featured meets the nutrient criteria for advertising restrictions.
Generally, a food with added fat, added sodium or sugars (except those
naturally present in fruits, vegetables, dairy products, grains, legumes, nuts
or seeds) will trigger advertising restrictions if it contains:
- 2 g of saturated fatty acid per reference
amount or serving of stated size (whichever is greater) and ≤ 15% energy
from the saturated fatty acid;
- 140 mg of sodium per reference amount or
serving of stated size (whichever is greater); or
- 5 g of sugars per reference amount or
serving of stated size (whichever is greater).
Different thresholds would apply to main dishes (i.e.
foods represented or sold as a meal or a major component of a meal) and to
products with reference amounts that are ≤ 30 g or 30 mL.
4. Exempted activities
4. Exempted activities
Health Canada would exempt the sponsorship of children's
sports teams, and related activities and events (e.g. tournaments), and the
sponsorship of individual, child athletes from the advertising prohibition.
However, sports sponsorships would be subject to certain restrictions (e.g.
would not permitted to depict food meeting nutrient content criteria or
child-appealing characters, or to offer samples, vouchers or coupons, among
other things). For example, a fast food chain that sponsors a little league
baseball team could include its name on the players' jerseys, but not its
mascot.
Health Canada would also exempt certain fundraising
activities (e.g. monthly catered lunches at elementary schools) and point of
sale advertisements (e.g. children's menus in restaurants) from the advertising
prohibition, subject to restrictions.
These developments demonstrate
that Health Canada has been receptive to feedback from industry stakeholders on
how to fulfill its restricting marketing to kids mandate. Nevertheless, it is
unclear, at this time, whether the Government of Canada will incorporate these
developments into Bill S-228 in the near future and, in turn, if Bill S-228
will become law. As such, we encourage you to continue monitoring this issue if
it impacts your food business.
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| megan.martins@gowlingwlg.com |
