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. For more background information on Bill S-228, please refer to our articles from September 2017 and May 2018.
On January 25, 2019, Health Canada sent members of its stakeholder registry a draft “Guide to the Application of the Child Health Protection Act (Bill S-228)” (the “Guide”). Stakeholders have until February 15, 2019 to provide comments. The Guide is still in draft form, and operates on the presumption that Bill S-228 will become law, which is not certain at this time. However, the Guide does provide some insight into Health Canada’s current position on a number of unsettled issues.
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
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.
By Megan Radmore, Gowling WLG
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