11 May Kids’ Food Advertising to be Restricted
Canada is tightening up its proverbial belt when it comes to food advertising to children under 13. Health Canada has announced its intention to amend the Food and Drugs Regulations to restrict food advertising to children. This comes on the heels of Ad Standards’ launching its new Code for the Responsible Advertising of Food and Beverage Products to Children as of June 28, 2023 (“Food and Beverage Code”). As if that wasn’t enough, a (re-introduced) federal private members’ bill will soon move to third reading; if passed, it will also prohibit advertising prescribed foods to kids under 13 that contain more than the prescribed level of sugars, saturated fats or sodium.
Health Canada’s new proposed national policy largely reflect the laws currently in place in Quebec, which already prohibit any commercial advertising to kids under 13. The Quebec prohibition arises based on three key factors: whether the product is appealing to kids, whether the ad is designed to appeal to kids, and whether the ad is placed in child-directed media. The Health Canada policy similarly considers the latter two factors in determining whether an advertisement will be considered to be “directed at” kids (as does the Food and Beverage Code). The Health Canada policy also has some limited exceptions similar to the current laws in Quebec, for example it similarly will not apply to advertising in premises and on packaging. Health Canada has stated that its new policy is not meant to override these Quebec laws.
Health Canada’s proposal also echoes Ad Standards’ new Food and Beverage Code, which prohibits advertising “unhealthy” food – as determined based on its sugar, saturated fat and sodium content. Starting June 28, 2023, Ad Standards will accept preclearance of food advertising that might be directed to kids and will adjudicate complaints alleging non-compliance with the Food and Beverage Code. Similar to the Health Canada proposal, the Code will only apply to advertising that actually depicts foods, so would not be applicable to general brand advertising where no identifiable food is shown or referenced by name. While Health Canada’s policy would apply to TV and digital advertising, the Food And Beverage Code has a much broader scope of application.
What foods will be regulated?
One nuance to the proposed Health Canada policy is that it will only apply to foods with added sodium, free sugars or added fat, where those nutrients also exceed the nutrient content percentage required to qualify for a “low in” nutrient content claim. These “low in” thresholds percentages are equivalent to 6% of DV for sodium, 5% for sugar and 10% for saturated fat (which is applied to foods with any added fat). Watch out, as these are different than the DV/“daily value” for these nutrients, the thresholds applicable to the new front of pack labelling requirements, and the nutrient threshold set in the Food and Beverage Code.
What happens next?
In terms of timelines, only the Food and Beverage Code is most imminently on the horizon. The Health Canada policy is in a pre-consultation stage, with comments on the policy being accepted until June 12, 2023. Health Canada is targeting spring of 2024 for releasing the draft regulations, at which time it would be subject to the standard consultation period applicable to new regulations. The private members’ bill was introduced in February 2022, and only now has left the committee stage before Third Reading in the House of Commons. It will need to pass through the Senate next, so that it does not die on the order paper as was the case with its predecessor bill in 2019.
Notwithstanding the self-regulatory enforcement regime about to launch, Health Canada has indicated enforcement will likely rest with Health Canada and the Canadian Food Inspection Agency. This may take the form of proactive market surveillance, inspections as well as enforcement resulting from complaints. Prosecution under the Food and Drugs Act is also a potential enforcement tool, under the penalties can go up to a $250,000 fine and/or 3 years’ imprisonment.
The take-away? Restrictions on food advertising to kids are coming fast and furious, and from all angles. Food manufacturers and restaurants will need to closely watch these developments to anticipate a significantly more regulated landscape in the months ahead.