On June 28, 2023, the new Code for Responsible Advertising of Food and Beverage Products for Children (the "Code") will come into effect. Once in force, advertisements for food or beverage products that do not meet specific nutrition requirements cannot be primarily directed to children under 13 years of age (the "Restriction"). In what circumstances will this Restriction apply, and what other rules have been introduced? Like all great codes, this will require careful consideration.
Advertisements subject to the Code
Ad Standards, Canada's industry-regulated advertising organization, will be responsible for administering the Code, which will apply to all advertising featuring a food or beverage product directed to residents of Canada in any media. While the Code complements and supports the existing regulatory landscape, advertisers are nevertheless required to comply with all relevant laws and regulations – including the Food and Drugs Act, the Food and Drug Regulations, the Canadian Code of Advertising Standards, and importantly, the Quebec Consumer Protection Act.
However, packaging, labels, wrappers, containers and product shape are not considered advertising and therefore not subject to the Code. Further, displays, in-store flyers, posters, menus, menu boards and other on-premises communications and material about a food or beverage product are exempt from the Restriction. With that said, under Clause V of the Code, these materials, and all other advertisements for a food and beverage product (whether or not they are subject to the Restriction), must not include any express words that directly urge a child to purchase or ask another person to purchase the product.
Does the Restriction apply?
The Restriction will not apply to advertisements of food or beverage products that meet the requirements set out in Appendix A of the Code. If it does not, then Ad Standards will consider whether the advertisement is directed to children using the three criteria below – largely inspired by the three criteria set out at section 249 of the Quebec Consumer Protection Act. As stated in Code and expanded upon in the Guide for the Responsible Advertising of Food and Beverage Products to Children (the "Guide"), each consideration is not determinative in and of itself. Instead, the analysis must take into account the relationship between each of the following:
(a) The nature and intended purpose of the food or beverage product advertised. The key assessment under this criterion is whether a product is inherently appealing to children, appealing to both children and non-children, or not particularly appealing to children at all. Where a product – for example, candy or chocolate – could be equally appealing to both children and non-children, Ad Standards will consider the other two criteria before making the final determination.
(b) The manner of presenting such advertisement. Unlike the criterion above that looks at the product, this assessment focuses on the advertisement and whether it was designed to primarily attract the attention of children. Factors that may suggest that an advertisement is primarily directed to children typically include language commonly used by children, themes that appeal to children (e.g. magic, adventure, fantasy, virtual worlds), catchy songs or jingles, animations and cartoon characters, young actors, bright colours, etc.
(c) The time and place that the advertisement is shown. It is important to consider the proportion of children that are expected to make up the audience or that might be reached by an advertisement. For instance, where the proportion of child viewers is relatively low (approximately 15% or less), Ad Standards will presume that the advertisement is not primarily directed to children. However, this presumption can be rebutted in light of the other two criteria.
If you are thinking to yourself "this look familiar….I think I've been here before," you may be thinking about Quebec. The Code is largely modelled after Quebec's consumer protection laws that prohibit commercial advertising directed at children under the age of thirteen. Although Quebec's laws prohibit advertisements for all types of products, the criteria to determine whether the particular advertisement is directed to children are nearly identical.
An important difference between the rules in Quebec and the Code is that the Code creates an exemption for charitable or educational initiatives which does not exist under Quebec law. Therefore, under the Code, advertisements that would otherwise be subject to the Restriction are permitted, provided the advertisement places a greater emphasis on the charitable/educational initiative as opposed to the food or beverage product. The Guide has set out three general conditions that must be met for this exception to apply. Additionally, the Quebec ban on commercial advertising to children does not have a parallel exemption for brand or sponsorship advertising that do not feature a food or beverage product, nor does it contain an exemption for in-store flyers, posters, menus, menu boards and other on-premises communications and material about a food or beverage product.
In addition to the changes under the Code, Health Canada recently announced its intention to amend the Food and Drug Regulations to restrict advertising to children of foods that contribute to excess intakes of sodium, sugars and saturated fat. Health Canada is seeking feedback on this policy update until June 12, 2023. Following feedback on the proposed policy, it will be important to consider whether the nutrition criteria will mirror that of the new Code. You can read our article about this further regulatory development here.
Gowling WLG has professionals with experience in food & beverage and marketing & advertising. Please contact us with any questions or concerns with respect to how these matters may impact your business.