On April 28, 2023, Health Canada published its proposed policy update on restricting food and drink advertising primarily directed at children. Feedback on the proposed policy update is being sought until June 12, 2023.
The proposed policy would amend Canada's Food and Drug Regulations to restrict advertisements that are primarily directed at children under the age of 13 across television and digital media (e.g. social media, mobile applications, television programs, websites, streaming services, online gaming, etc.), with the exception of brand advertisements that do not depict or name a food (e.g. logo or mascot with no visual of a specific food or package). While the proposed restrictions appear to be limited to specific media for now, Health Canada has indicated an intent to take a targeted approach tackling television and digital media (i.e. websites, social media, mobile applications, email, video/audio streaming services, T.V. and online movies, online games and virtual reality programs, etc.) "first".
Foods subject to restriction
Health Canada's proposal would restrict foods that contain added free sugars (i.e. added sugars, and sugars naturally present in honey, syrups, fruit juice and fruit juice concentrates), saturated fat, or sodium in excess of the 'low in' nutrient content claim thresholds for these 3 nutrient categories, namely any nutritional contents exceeding 5% daily value (DV) for sugars, 10% DV for saturated fat, and 6% DV for sodium.
Foods such as desserts, baked goods, beverages, breakfast cereals, dairy products, snacks, and candy may be caught under the proposed policy and result in restrictions for advertisements primarily directed at children. However, foods recommended in Canada's food guide – such as fruits, vegetables, whole grain foods, and protein foods with no added sodium, free sugars, or added fat – are exempt from the proposed advertising restrictions.
"Primarily directed at children"
Determining whether or not an advertisement is primarily directed at children under thirteen would require a contextual assessment of the advertisement's presentation, and specifically the following two factors:
- 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.
This assessment would take into consideration, namely :
- Rating or classification of the advertising medium;
- Intended audience of the subject matter of the medium;
- Characters or public figures that are appealing to children (e.g. characters from children's TV shows, or movies, real or animated characters with child-like characteristics and behaviours, celebrities popular primarily with children);
- Use of games, activities or incentives likely to appeal to children;
- Cross-promotions with children's movies, programs, games, or toys; and
- Other design elements, effects, subjects, themes or language likely to appeal primarily to children (including, e.g. age of individuals and setting of the ad).
The proposed policy is open for consultation until June 12, 2023. Health Canada is aiming to publish draft regulations in support of the proposed policy in the fall of 2023 for consultation, whether or not the current Private Member's Bill C-252 proposing to amend the Food and Drugs Act to restrict advertising to children gains approval of Parliament. Health Canada has not indicated when they anticipate publishing the final regulations, or what type of transition period may be provided (if any) for the coming into force of the final regulations.
When it comes to understanding the intricate intersections of food and beverage regulations, as well as marketing and advertising law, our experienced Gowling WLG professionals are here to guide you. We invite you to reach out to us should you have any questions or concerns with respect to how the proposed policy may impact your business, or should you wish to get involved with the consultation.