September 13, 2017
To address rising obesity rates in Canadian children, the Government of Canada intends to restrict children’s exposure to food and beverage advertising. This will be accomplished through a combination of legislative and regulatory measures under the Food and Drugs Act.
Legislative Measures: Bill S-228
In September of 2016, Senator Nancy Greene Raine introduced Bill S-228, “An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children)”, to the Senate. Bill S-228 passed its Second Reading and was referred to the Standing Senate Committee on Social Affairs, Science and Technology (the “Senate Committee”) for review last December.
The Senate Committee deliberated Bill S-228 in May and June of this year, and published a report with amendments on June 21, 2017. These amendments were made in response to feedback from Health Canada and align closely with the Health Canada’s regulatory proposal. Notably:
- The age of restriction was increased from “under 13” to “under 17”;
- A distinction was drawn between “healthy” and “unhealthy” foods;
- A trade-mark protection was added, for trade-marks that cannot be used as a result of the advertising restrictions; and
- Specific restrictions on advertising activities were removed, with the intention of including them in regulations instead.
Bill S-228 will receive a Third Reading in the Senate this fall, at which time a revised version of the Bill will be published.
Regulatory Measures: Health Canada’s Proposal
On October 24, 2016, the former Minister of Health, Jane Philpott, announced that Health Canada would be implementing restrictions on food and beverage marketing to children. Health Canada published its proposal on June 10, 2017 and consulted with stakeholders via an online questionnaire from June 10-August 14, 2017. The full text of the proposal can be found here: Discussion Paper for Public Consultation. Key elements are, as follows:
- “Children” should be defined as persons under the age of 17.
- “Unhealthy food” should be defined using one of these two nutrient thresholds:
- Foods with more than approximately 5% of the daily value of saturated fat, sugars or sodium; OR
- Foods with more than 15% of the daily value of saturated fat, sugars or sodium.
- “Child-directed” marketing should be defined, as follows:
- Television marketing: All unhealthy food and beverage marketing aired on weekdays from 6:00 a.m. to 9:00 a.m. and from 3:00 p.m. to 9:00 p.m., and on weekends between 6:00 a.m. and 9:00 p.m.
- Internet marketing: All unhealthy food and beverage marketing on websites, platforms and apps that are popular with children, even when these digital channels are intended for adults as well.
While similar legislation exists in Quebec, Health Canada’s proposal is much more restrictive. Quebec’s Consumer Protection Act restricts all commercial advertising (not just food) to persons under 13 years of age and requires a multi-faceted analysis to determine whether an advertisement is “child-directed”.
We encourage stakeholders to monitor both the legislative and regulatory processes underway. If you require assistance or would like more information about Bill S-228 or Health Canada’s Healthy Eating Strategy, please let us know.
NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.