Children are generally recognized by both industry and government to be a vulnerable or special audience when it comes to advertising. On June 28, 2023, a new advertising code will be coming into effect as released by Ad Standards Canada. It is intended to expand upon legislative, regulatory, and self-regulatory regimes that already exist in Canada (including in Quebec). In addition, on April 25, 2023, Health Canada provided a policy update on restricting food advertising primarily directed at children.
The new Code for the Responsible Advertising of Food and Beverage Products to Children (the Code) prohibits advertising food and drinks to children under the age of 13—unless certain nutritional thresholds are met. The Code targets all advertisements directed to residents of Canada that:
- feature a food or drink product;
- are “primarily directed” at children; and
- appear in any media, including non-traditional media (e.g., social media, streaming services, apps, games, and product placements).
“Primarily directed” at children
When considering whether an advertisement is “primarily directed” at children, Ad Standards will consider:
- the product’s nature and intended purpose;
- how the advertisement is presented; and
- the time and place that the advertisement is shown.
Whether the advertisement is truly primarily directed at children will depend on context. Consider, for instance, the use of animations, music or special jingles. Ad Standards also notes that an advertisement may appeal to children without being “primarily directed” at them in some situations. For example, advertisements that use animation might not be “primarily directed” at children if:
- broadcasted after 9 p.m.;
- posted on age-gated websites; or
- promoted at adult sporting events.
Ultimately, this is a fact-specific analysis and Ad Standards will evaluate each advertisement brought to its attention by its own merit.
Nutritional threshold
The prohibition against advertising a food or beverage product to children under 13 does not apply for food or beverages that do not reach certain nutritional thresholds pertaining to saturated fat, sodium and sugars. There are further thresholds in the Code for restaurant and food service meals. For more information on the applicable thresholds, Appendix A of the Code should be specifically referenced.
Limited exceptions
The Code also sets out limited exceptions to the prohibition on advertising for, among other things:
- packaging, labels, wrappers, containers, and product shapes;
- on-site communications such as displays, in-store flyers, posters, menus, and menu boards;
- products that promote an educational or charitable initiative, e.g., fundraising, unless the advertisement emphasizes the product more than the cause.
It is not intended that the Code prevent point of sale advertising to children through in-store displays or packaging.
That said, no advertiser is permitted to use words to directly “urge” a child to purchase a food or beverage product (or urge a child to ask another person to purchase it for them). Practically speaking, “tell your parents to buy me” on a package is prohibited regardless of meeting one of the limited exemptions or not meeting the nutritional threshold for saturated fat, sodium and sugars.
Enforcement
Members of the public or fellow advertisers will be able to submit complaints pertaining to non-compliance with the Code after June 28, 2023. If upon review Ad Standards determines that the advertisement does not comply, it may take steps with host media to withdraw the advertising in question (or refer the matter to Health Canada, should the subject advertiser be uncooperative).
Health Canada policy update
Health Canada has also advised that it intends 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 as noted in its Forward Regulatory Plan and as a part of the Healthy Eating Strategy. Changes will be implemented under existing regulations under the Food and Drugs Act or under Bill C-252, a private members’ bill that proposes restrictions on advertising of foods and beverages.
At the first stage, restrictions will target television and digital media and will concern advertising foods with added sodium, free sugars, or added fat that exceed the “low in” nutrient content claim thresholds for sodium, sugars and/or saturated fat. This includes most of the foods currently frequently advertised to children, such as: candy, snacks, desserts, chocolate, baked goods, restaurant food, sweetened dairy products, sugar-sweetened beverages and sweetened breakfast cereals.
Takeaway
The Code reflects a pattern of increased regulation for advertising to children as can be seen from the Health Canada Policy Update. Further details from Health Canada can be found here. Advertisers would be wise to re-evaluate their practices in the coming months to prepare for the Code and future regulatory developments.
Norton Rose Fulbright is well positioned to provide assistance in navigating the Code, Health Canada’s incoming amendments, or similarly complex food regulations found under the Food and Drugs Act, Safe Food for Canadians Act, Feeds Act, and Seeds Act (among others).
