December 16 2016

Food and beverage advertising for children soon banned for ROC?

Savoie Pierre

If bill S-228 is adopted, the rest of Canada will soon have to deal with a ban on food and beverage advertising directed at children.

Whether such ban will garner wide approval or not, Senator Nancy Greene Raine is determined to see this measure adopted. The short title of this legislative initiative is the Child Health Protection Act and it follows the recommendations made in March of this year by a senate committee in a report titled "Obesity in Canada: A Whole-of-Society Approach for a Healthier Canada”. The report called for a ban of food and beverage advertising directed at children.

The ban proposed in the bill resembles the one in force since 1980 in Quebec (where section 248 of the Consumer Protection Act prohibits commercial advertising directed at persons under 13 years of age) except for one basic difference: in Quebec, the ban is not limited to any type or class of product whereas the federal project only covers food and beverages. However, even if the bill covers fewer products, the scope of the prohibitions is wider.

Let’s take packaging as an example.

In Quebec, advertising to children is allowed on product packaging, as long as the advertising content complies with certain conditions set in the Regulation respecting the application of the Consumer Protection Act. For example, characters from animation movies popular among children can be used. Last winter, dairy products were covered with images of the characters from the animation movie Snowtime. Although fully compliant under Quebec law, if the federal bill were adopted, this practice could be prohibited, which would have an important impact throughout the country, well beyond the example described above.

For example, how would this affect the characters created by an advertiser and used as trademarks for his products? Would packaging of food products that include a small bear, a colourful tiger or a multicoloured toucan suddenly be considered packaging directed mainly at children? Although this is an extreme and unlikely consequence, the fact that it is a possibility is enough to worry advertisers.

The bill also targets the practice of offering gifts or prizes with purchases made for children under 13 years of age. Subsection 7.5 provides the following:

“(1) No person shall offer or provide, in exchange for the purchase of a food, any direct or indirect consideration that is intended primarily for children.

(2) For the purposes of subsection (1), consideration includes a gift to a purchaser or third party, a bonus or the right to participate in a game, lottery or contest.”

Without a doubt, this provision would put an end to some practices, such as small prizes in cereal boxes and even any kind of prize for children, whether the prize bears the colours of the advertiser or not.

Furthermore, the bill raises questions particularly in regard to the sanctions imposed in case of violations, namely the prohibition of the sale of the product. An advertiser who offers a prize that violates the section quoted above may be forced to stop selling the product in question. The same thing would happen to an advertiser whose advertising is deemed to violate the ban on advertising directed mainly at children.

In our opinion, how this provision would be applied raises many interesting questions. For example, would the prohibition apply only while the offending ad is in circulation? Otherwise, how long would the prohibition last?

We will be watching the bill’s progress closely as it may have a considerable impact on packaging, advertising and promotion of many food products in Canada, including in Quebec, even though we are used to dealing with the prohibition on commercial advertising directed at children.

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