Food in­dus­try out­cry re­casts ad rules for kids


Newly ob­tained doc­u­ments re­veal de­tails of back­lash that prompted Health Canada to change pro­posed reg­u­la­tions

Health Canada is re­vamp­ing reg­u­la­tions that will re­strict food and bev­er­age mar­ket­ing to chil­dren after its ini­tial pro­pos­als pro­voked an out­cry from the in­dus­try.

Doc­u­ments ob­tained by The Globe and Mail through Ac­cess to In­for­ma­tion leg­is­la­tion pro­vide in­sight into the ex­tent of crit­i­cism that Health Canada has faced from rep­re­sen­ta­tives of the food and bev­er­age, re­tail, ad­ver­tis­ing and me­dia in­dus­tries – in­clud­ing la­belling its pro­posed reg­u­la­tions “un­re­al­is­tic,” “puni­tive” and “com­mer­cially cat­a­strophic.” The fed­eral depart­ment has been de­vel­op­ing new mar­ket­ing rules for more than a year and a half.

At the heart of the de­bate is a Se­nate bill to amend the Food and Drugs Act in­tro­duced in Septem­ber, 2016, in­tended to limit un- healthy food and bev­er­age ads aimed at chil­dren. In June of 2017, Health Canada con­ducted con­sul­ta­tions on pro­posed reg­u­la­tions that it would en­force once the amend­ment took ef­fect, ap­ply­ing re­stric­tions to ads for foods that con­tained more than a cer­tain daily thresh­old of salt, sugar and/ or sat­u­rated fats. It re­ceived more than 1,100 re­sponses, in­clud­ing ob­jec­tions that the rules would have sev­eral un­in­tended and neg­a­tive ef­fects on com­pa­nies’ abil­ity to do busi­ness. Me­dia buy­ing firm GroupM es­ti­mated that $350-mil­lion in TV ads and $600-mil­lion in dig­i­tal ads could be af­fected by the pro­pos­als.

The push­back has al­ready prompted Health Canada to make a num­ber of changes to pro­pos­als it put for­ward dur­ing those con­sul­ta­tions, in­clud­ing drop­ping a pro­hi­bi­tion against spon­sor­ship of chil­dren’s sports. Also, it will re­strict ads only in TV pro­grams where chil­dren make up a cer­tain per­cent­age of the au­di­ence, rather than broadly re­strict­ing TV ads by the time of day when kids are likely to be watch­ing.

Both of those pro­pos­als were points of con­tention in in­dus­try sub­mis­sions. Ad­ver­tis­ers in­clud­ing Unilever Canada, Nestlé Canada and Dairy Farm­ers of Canada ob­jected to the idea to re­strict sports spon­sor­ships, em­pha­siz­ing the fi­nan­cial sup­port they pro­vide for phys­i­cal ac­tiv­ity.

The time-based ap­proach to re­strict­ing TV ads would by de­fault re­strict com­pa­nies’ abil­ity to ad­ver­tise to adults as well, some sub­mis­sions ar­gued. Gen­eral Mills Canada called the plan “over­broad” and “un­jus­ti­fi­able,” while the Cana­dian Bev­er­age As­so­ci­a­tion called it an “en­force­ment night­mare” and a “mas­sive over­reach.” Some raised the point that un­der such rules, chil­dren might be ex­posed to beer and lot­tery ads dur­ing an evening hockey game but not ads for such things as a steak din­ner – be­cause it had more than a cer­tain per­cent­age of daily rec­om­mended salt, sugar or fat.

The Cana­dian As­so­ci­a­tion of Broad­cast­ers sug­gested the im­pact of the reg­u­la­tions on chil­dren would be “neg­li­gi­ble,” be­cause al­though the re­stric­tions would di­rectly af­fect TV broad­cast­ers in this coun­try, the rules would be dif­fi­cult to en­force on for­eign-owned web­sites such as YouTube, where kids spend so much of their time.

It wasn’t just re­stric­tions on TV ads that raised con­cerns: IAB Canada (the In­ter­ac­tive Ad­ver­tis­ing Bureau) pointed out that lim­it­ing ads to chil­dren would re­quire web­sites and apps to track mi­nors in a way that could vi­o­late data pro­tec­tions un­der Cana­dian pri­vacy law.

Fur­ther­more, some sub­mis­sions, in­clud­ing those from the As­so­ci­a­tion of Cana­dian Ad­ver­tis­ers and Food & Con­sumer Prod­ucts of Canada, sug­gested that the pro­pos­als would re­strict ad­ver­tis­ers’ free­dom of ex­pres­sion, which ex­tends to com­mer­cial speech; this raised the spec­tre of a chal­lenge to the rules un­der Canada’s Char­ter of Rights and Free­doms.

Some sub­mis­sions flat-out ob­jected to re­strict­ing ads based solely on lev­els of nu­tri­ents such as salt, fat, or sugar. Dairy Farm­ers of Canada pointed out that the nu­tri­ent-level ap­proach would “er­ro­neously cat­e­go­rize sev­eral milk prod­ucts as un­healthy.” And the Gro­cery Man­u­fac­tur­ers’ As­so­ci­a­tion ar­gued that, for ex­am­ple, “a sat­u­rated fat level ap­pro­pri­ate for nuts or nut but­ters would not be ap­pro­pri­ate for other food cat­e­gories.”

Some ar­gued that it should be left to in­dus­try to self-reg­u­late; many ma­jor ad­ver­tis­ers par­tic­i­pate in the Cana­dian Chil­dren’s Food & Bev­er­age Ad­ver­tis­ing Ini­tia­tive, which lim­its ad­ver­tis­ing to kids 12 and un­der for foods that do not meet the group’s own nutri­tional cri­te­ria. Ad­ver­tis­ing Stan­dards Canada, which over­sees the pro­gram, wrote that it has found broad com­pli­ance among mem­bers. Some com­pa­nies that are mem­bers ar­gue their prod­ucts are not in­her­ently bad for chil­dren, as long as they are con­sumed in mod­er­a­tion. Con­fec­tionery com­pany Fer­rero Canada Ltd. noted in its sub­mis­sion that its “phi­los­o­phy is that there no such thing as good foods and bad foods; in­stead there are good di­ets and bad di­ets,” and that treats like the ones it sells can be “part of a bal­anced diet” when en­joyed from time to time.

While the rules are still un­der de­vel­op­ment, Health Canada has now heeded some of the other ad­vice it re­ceived from Cor­po­rate Canada. Fol­low­ing the con­sul­ta­tions, this past May, it pro­vided an up­date to the reg­u­la­tory ap­proach that in­cluded the spon­sor­ship ex­emp­tion, as well as defin­ing “child di­rected me­dia chan­nels” as those where chil­dren form a “sig­nif­i­cant por­tion of the au­di­ence.” It is con­sid­er­ing a thresh­old of 15 per cent, while many in­dus­try sub­mis­sions pro­posed 30 per cent to 35 per cent.

“We would have chal­lenged it un­der the Char­ter,” Ron Lund, pres­i­dent and chief ex­ec­u­tive of the As­so­ci­a­tion of Cana­dian Ad­ver­tis­ers, said in an in­ter­view, re­fer­ring to the time-based re­stric­tions.

One par­tic­u­lar point of con­tention in in­dus­try sub­mis­sions was the pro­posal to re­strict ad­ver­tis­ing to chil­dren un­der 17. The bill it­self has since been amended to change the age re­stric­tion to chil­dren un­der 13. After this and other amend­ments, the bill passed its third read­ing in the House of Com­mons this Septem­ber, and is now back be­fore the Se­nate.

Health Canada has also made an ef­fort to meet with in­dus­try, in­clud­ing at­tend­ing an event in Ot­tawa on Nov. 5 with roughly 50 rep­re­sen­ta­tives of sec­tors that could be af­fected by the new rules. Mul­ti­ple in­dus­try sub­mis­sions had com­plained of feel­ing shut out of the process of de­vel­op­ing reg­u­la­tions.

At the Novem­ber meet­ing, Health Canada heard con­cerns that by eval­u­at­ing prod­ucts based on cer­tain nu­tri­ent lev­els, they’d be la­belling many foods as un­healthy. In early De­cem­ber, its di­rec­tor-gen­eral re­spon­si­ble for health prod­ucts and food ap­peared be­fore the stand­ing com­mit­tee on agri­cul­ture and forestry to ex­plain how the reg­u­la­tory ap­proach has changed. Karen McIn­tyre said the in­ten­tion is to de­fine a food as ei­ther per­mit­ted for mar­ket­ing to chil­dren, or not. “We are not cat­e­go­riz­ing foods as be­ing un­healthy or healthy,” she said, adding that more meet­ings with in­dus­try are planned.

“Things have changed,” Mr. Lund said, adding that he has no­ticed an uptick in con­sul­ta­tions with in­dus­try par­tic­u­larly since Novem­ber. “We hope it’s with­held [from fi­nal Se­nate ap­proval] un­til we see where the reg­u­la­tory side might go.”

Not ev­ery­one was crit­i­cal of Health Canada’s ap­proach, how­ever. In the sum­mer con­sul­ta­tions, or­ga­ni­za­tions such as the Di­eti­tians of Canada, the Cana­dian Can­cer So­ci­ety, Di­a­betes Canada, and oth­ers, agreed with many of the pro­posed mea­sures, and even en­cour­aged Health Canada to go fur­ther, broad­en­ing time­based ad­ver­tis­ing re­stric­tions on tele­vi­sion to en­com­pass wider swaths of the day and evening.

More re­cently, the Heart and Stroke Foun­da­tion – which is a lead­ing mem­ber of the Stop Mar­ket­ing to Kids Coali­tion – has raised con­cerns about “de­lay tac­tics” by in­dus­try, said Manuel Arango, the Foun­da­tion’s di­rec­tor of pol­icy, ad­vo­cacy and en­gage­ment.

How­ever, Mr. Arango said that he agreed with some of the changes Health Canada has made, such as ex­empt­ing cer­tain dairy prod­ucts that con­tain im­por­tant nu­tri­ents from mar­ket­ing re­stric­tions. “I think so far we’re on the right track,” he said. “We would have pre­ferred to have ado­les­cents [up to age 17] cov­ered, but Rome wasn’t built in a day.”

Health Canada’s de­vel­op­ment of the reg­u­la­tions is con­tin­u­ing, spokesman Eric Mor­ris­sette said in an e-mailed state­ment, adding that it has held nu­mer­ous dis­cus­sions with in­dus­try and with pub­lic health ex­perts over the past year.

“We will con­tinue to con­sult with Cana­di­ans, stake­hold­ers and ex­perts as we bring for­ward pro­posed reg­u­la­tions.”

So far we’re on the right track. We would have pre­ferred to have ado­les­cents [up to age 17] cov­ered, but Rome wasn’t built in a day. MANUEL ARANGO DI­REC­TOR OF POL­ICY, AD­VO­CACY AND EN­GAGE­MENT WITH THE HEART AND STROKE FOUN­DA­TION


The Cana­dian unit of the In­ter­ac­tive Ad­ver­tis­ing Bureau has high­lighted that lim­it­ing the num­ber of food ads to which chil­dren are ex­posed would re­quire web­sites – such as for­eign-owned YouTube, where chil­dren spend a con­sid­er­able amount of their view­ing time – to track mi­nors in a way that could vi­o­late data pro­tec­tions un­der do­mes­tic pri­vacy law.

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