Scrutiny growing for food ads directed at children: product regulatory marketing lawyer

In Quebec, advertising targeted at children under 13 has been prohibited since 1980. With the new industry standards released last month, the gap between Quebec and the rest of Canada is narrowing, says Pei Li, a partner at Blake Cassels & Graydon LLP.

On June 28, Ad Standards began administering a new “Code for the Responsible Advertising of Food and Beverage Products to Children,” placing new restrictions on food advertising. The code prohibits targeting children with food or beverage advertising unless the products satisfy specific nutrition criteria, including fat, sodium, and sugars limits. But even products meeting the nutrition standards still cannot use language that directly tells children to purchase a product or directly tells children to ask another person to buy it.

“In parallel to that code coming into force earlier last month,” says Li, “Health Canada has also been doing a lot of work on the legal front.”

Restricting food advertising to children has been a mandate of the Health Minister since 2015. Health Canada plans to amend the Food and Drug Regulations to crack down on food advertising that promotes excessive intake of sugars, saturated fats, and sodium. The ministry held a consultation from April 25 to June 19, seeking feedback on the policy update. The approach will focus on television and digital media.

“It's unclear how those legal initiatives will shape out because I think we're in the very early stages,” says Li.

Li represents large food and beverage manufacturers, for whom she advises on labelling, marketing, and advertising, among other things. She also has a large pharmaceutical practice.

According to a recent bulletin Li wrote with Laura Weinrib and Lindsay Toth, Ad Standards assesses three factors when determining whether an advertisement is directed at children: “the nature and intended purpose of the food or beverage product advertised, the manner of presenting such advertisement, [and] the time and place it is shown.” Ad Standards’ analysis will consider these three prongs and the relationship between them, said the bulletin.

“Whether or not something is primarily directed at children is going to be extremely context-dependent,” says Li.

The code is intended to standardize advertising practices. She says Ad Standards does not have the legal authority to apply the force of law, but it has “governing authority to administer disputes” either initiated by consumers or between market competitors. Ad Standards has various “non-legal enforcement options” – for example, naming and shaming – to use against code-violators, she says.

Saturated fat, sugar, and sodium are a focus for regulators, not just related to advertising at children but in food-and-beverage regulation generally, says Li.

Health Canada amended the Food and Drug Regulations last July, creating a new nutrition symbol for food packaging to indicate when a product is high in sugars, saturated fat, or sodium. The symbol will look like a magnifying glass and appear on prepackaged foods containing at least 10, 15, or 30 percent of the daily value of those ingredients, depending on the overall food quantity.