Canadians Advance Bill to Limit the Marketing of Unhealthy Foods to Children, Including Online

By: Katharina Kopp | Feb 20 2018

Around the world citizens and governments are putting efforts toward limiting the marketing of unhealthy foods to children in order to address the  growing obesity epidemic worldwide. In the US, Congress and the Federal Trade Commission rely on weak self-regulatory industry standards, but under Canadian Prime Minister Justin Trudeau, the government of Canada wishes to see restrictions placed on the marketing of food and beverages to children. This was a goal written directly into the Health Minister's mandate letter signed by Trudeau in October 2017.

As a result, Health Canada, the department of the Canadian government with responsibility for national public health, is considering new regulations that would impose broader restrictions on food advertising that is targeted at those under 17. It could cover everything from TV, online and print advertising to product labelling, in-store displays and even end some sponsorships for sports teams. Health Canada's consultations on how it should approach restricting advertising of "unhealthy food and beverages" to kids began in June of 2017 and concluded in early August last year. Although a few contributors opposed any attempt to restrict marketing to children, the summary report states that "Overall, the proposed approach and supporting evidence for restricting marketing of unhealthy food and beverages to children were well received."

The authors of the report point out that the "issue of age was not an area of inquiry," but most contributors supported the idea of including children between 13 and 17 years of age. Aiming to define "unhealthy foods," the consultation proposed to focus on restricting certain nutrients of concern (sodium, sugars, and saturated fats), and most commentators supported setting the stricter threshold option (of 5% ) for the proposed restrictions, which were based on a percentage of daily values (% DV).  Commentators strongly preferred that option over the weaker proposal (15% DV).  Using the percentage of daily values to define which foods are "healthy" or "unhealthy" relies on the already existing mandatory food labelling for most relevant foods. In addition to the proposal to restrict certain nutrients of concern, the proposed restrictions to the marketing of non-sugar sweeteners to children was also positively received.

For the consultation, Health Canada looked at the Quebec ban on advertising to children, which has been in place since 1980, and covers any advertising, not just food-related advertising. In that province, companies cannot market unhealthy food to children under 13 years old. Quebec has the lowest obesity rate in Canada among children aged six to 11 and the highest rate of fruit and vegetable consumption.

The Stop Marketing to Kids Coalition (M2K Coalition), which includes the Heart and Stroke Foundation of Canada, the Childhood Obesity Foundation, the Canadian Cancer Society, Diabetes Canada, Dietitians of Canada, and the Quebec Coalition on Weight-Related Problems, supports the so-called Ottawa Principles. These evidence-based, expert-informed and collaboratively arrived principles call on governments to restrict the commercial marketing of all food and beverages to children and youth age 16 years and younger. Restrictions would include all forms of marketing with the exception of non-commercial marketing for public education. The M2K Coalition has taken this stance because of the complexities associated with defining healthy versus unhealthy food.

The ad industry in Canada has some self-regulatory restrictions in place under the Canadian Children's Food and Beverage Advertising Initiative. That program, in which many major food companies are participants, sets out nutrition criteria for products that can be advertised in environments where kids under 12 make up 35 percent or more of the audience. The Association of Canadian Advertisers has criticized Health Canada's proposal as "significantly overbroad," calling it an "outright ban on most food and beverage marketing in Canada."

The Canadian advertising initiative has tightened its criteria over time and is now monitoring online advertising more closely. 2016 was the first full year in which participating companies that advertise to kids had to ensure their products met new, tighter limits on calories, sugar, sodium and saturated and trans fats. However, in 2017, a study from the Heart and Stroke Foundation of Canada called into question how effective this effort has been. It looked at the most popular websites visited by children and teens, and found ads for products high in sugar, salt or fat.

During the time that the Canadian government began to explore the right approach to restricting the marketing of unhealthy foods to children, Senator Nancy Greene-Raine introduced a private members bill in the Senate in the fall of 2016, seeking to amend the Food and Drugs Act to prohibit the marketing of unhealthy foods and beverages to children (Bill S-228). This would put the activities of Health Canada on a legal basis. The Senator amended the bill to reflect the federal government’s proposed approach on raising the age limit to age 16 and under and kept the focus on “unhealthy” food and beverages.  Bill S-228, The Child Health Protection Act, unanimously passed the Senate in September 2017.

Two amendments to the bill were introduced during the first hour of debate in the House of Commons in December 2017, which included a reduction in the age of protection to under 13 (from 17) years, and the introduction of a 5-year post-legislation review period.

The rationale for the change in the age amendment was to make the bill more likely to withstand a court challenge, given that the Quebec legislation restricting marketing to children under 13 years withstood a legal challenge in the case of Irwin Toy v Quebec (1989).  In this case, the Supreme Court of Canada allowed limits on commercial advertising to children under 13 as constitutionally valid. The Court confirmed that "...advertising directed at young children is per se manipulative." And so, while the Court found that the restrictions violated the freedom of expression under the Charter of Rights and Freedoms, a majority of the Court considered this violation to be a justifiable limitation necessary to protect children.

For now, the bill is working its way through Parliament. Hopefully, the food industry will not further water down the requirements of the bill. If all goes well, our neighbor to the north will have a law in place by September 2018 that will advance public health and put children's health above the profits of the food industry.

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See attached infographic.

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