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Editor’s note: since the date of this article being published, Health Canada has extended the deadline to provide feedback to the Proposed Policy to June 19, 2023.
Health Canada has released a policy update which indicates that it intends to propose restrictions on food advertising on television and digital media that is primarily directed at children under the age of thirteen, where the foods contribute to an excess intake of sugars, sodium and saturated fat (the “Proposed Policy”). Health Canada has advised that its intent is for the Proposed Policy to form the basis of a new regulatory framework related to the advertising of food to children. Businesses engaged in such advertising should monitor the developments in Canada, and can also provide their feedback on this policy until June 12, 2023 by sending an email to bpiia-bpaii@hc-sc.gc.ca.
The Proposed Policy was released not long after the Code for the Responsible Advertising of Food and Beverage Products to Children (the “Code”), administered and enforced by Ad Standards Canada (“Ad Standards”). Starting on June 28, 2023, the Code will require advertisers to use caution when advertising food and beverage products if there is a possibility that an ad could be viewed as primarily directed to children, based on certain factors as set out in the Code. For more details about the Code, please see our recent article.
The Proposed Policy and the Code are not the first time that restrictions have been placed on food advertisements directed to children in Canada. The Proposed Policy and the Code include provisions that are similar to the restrictions included in Quebec’s Consumer Protection Act, which prohibits certain commercial advertising of all goods and services where the ad targets children under the age of thirteen. The Proposed Policy and the Code confirm Canada’s commitment to protecting children’s health, which has been part of the Minister of Health’s mandate commitment since 2015 and the World Health Organization’s recommendations since 2010. These changes are one of many initiatives included in Health Canada’s Healthy Eating Strategy – for example, in 2022, a new front of package labelling requirement was introduced for foods high in sodium, sugar or saturated fat. Please see our discussion of this new requirement for more information.
In the Proposed Policy, Health Canada indicates that it intends to restrict advertising to children of foods with added sodium, free sugars, or added fat that exceed the ‘low in’ nutrient content claim thresholds for sodium, sugars and/or saturated fat. The foods that are currently frequently advertised to children include candy, snacks, desserts, chocolate, baked goods and restaurant food, among others.
The Proposed Policy notes that restrictions will start by targeting television and digital media, which include websites, social media, mobile applications, broadcast television, email and messaging services, video and audio streaming services, and online games and virtual reality programs. Brand advertisements that do not show any food that can be identified would not be captured by the Proposed Policy. However, the types of media may be expanded in future.
Health Canada indicates in the Policy that it intends to consider the following factors to determine whether an advertisement will be considered “primarily directed at children”:
- The nature and intended purpose of the medium where the ad is communicated; and
- Whether the advertisement targets, or is reasonably expected to appeal particularly to, children.
These factors would be looked at on a case-by-case basis, having regard to the context of the ad. For example, an advertisement targeted to a general audience could still be considered primarily directed at children if it is reasonably expected to appeal particularly to children after a collective assessment of the design elements, characteristics and advertising techniques used in the advertisement. If an ad is published in media that is specifically intended for children, it would likely be considered to be primarily directed at children.
The Proposed Policy further indicates that the more of the following elements that are included in the ad, the more likely it will be deemed to be directed at children: licensed characters from children’s shows, generic characters with child-like characteristics, games likely to appeal to children due to required skill level, popular kids’ celebrities, and visual and audio design / jingles, among others.
In addition, Bill C-252 was introduced in the House of Commons in February 2022 and is currently proceeding through Parliament (the “Bill”). The Bill proposes to amend the Food and Drugs Act and will prohibit the advertising of foods and beverages that contribute to excess sodium, sugars and/or saturated fat in children’s diets in a manner that is primarily directed at persons who are under thirteen years of age.
It is possible the proposed restrictions set out in the Proposed Policy will be implemented under the Food and Drugs Act current regulatory authority, or new authorities if the Bill receives Royal Assent.
Those engaged in advertising of food and beverage products in Canada should continue to monitor the regulatory landscape in Canada as it continues to develop.
If you have any questions about food and beverage advertising in Canada, please feel free to reach out to any member of Miller Thomson’s Marketing, Advertising and Product Compliance team.
