First Session, Forty-second Parliament, 64-65 Elizabeth II, 2015-2016

SENATE OF CANADA

BILL S-228 An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children)

FIRST READING, September 27, 2016

This enactment amends the Food and Drugs Act to prohibit food and beverage marketing directed at persons under 13 years of age.

1st Session, 42nd Parliament, 64-65 Elizabeth II, 2015-2016

SENATE OF CANADA

BILL S-228

An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children)

Preamble

Whereas the Public Health Agency of Canada stated in its 2012 report entitled Curbing Childhood Obesity: A Federal, Provincial and Territorial Framework for Action to Promote Healthy Weights that the rate of childhood obesity in Canada has been rising steadily in recent decades;

Whereas, during its 2016 study on the increasing incidence of obesity in Canada, the Standing Senate Committee on Social Affairs, Science and Technology (the “Senate Committee”) heard experts testify that the number of obese children in Canada has tripled since 1980 and that Canada ranks sixth among industrialized nations in respect of its percentage of children who are obese;

Whereas overweight and obese children are at an increased risk for the premature onset of chronic conditions and illnesses such as high cholesterol, high blood pressure, sleep apnea, joint problems, type 2 diabetes, heart disease, stroke and some cancers;

Whereas being overweight or obese also impacts the mental health and well-being of children, as well as other aspects of their lives;

Whereas being overweight or obese is difficult to reverse, and research shows overweight or obese children are more likely to continue to be overweight or obese during the rest of their childhood and in their adolescence and adulthood;

Whereas obesity also has an impact on society as a whole through increased health care spending and loss of workforce productivity;

Whereas, in its final report presented on January 25, 2016, the World Health Organization’s Commission on Ending Childhood Obesity found that there is unequivocal evidence that the marketing of unhealthy foods and sugar-sweetened beverages has a negative impact on childhood obesity, and recommended that any attempt to tackle childhood obesity should include a reduction in the exposure of children to marketing;

Whereas children are particularly vulnerable to marketing and its persuasive influence over their food preferences and consumption;

Whereas marketing of food and beverages to children remains widespread in Canada despite voluntary measures such as the Broadcast Code for Advertising to Children and the Canadian Children’s Food and Beverage Advertising Initiative;

Whereas the rapidly increasing rate of childhood obesity in Canada is a matter of national concern;

Whereas the protection of vulnerable children from the manipulative influence of marketing of food and beverages is predicated on a pressing and substantial concern and calls for a federal legislative response;

And whereas the Senate Committee recommended, in its report entitled Obesity in Canada: A Whole-of-Society Approach for a Healthier Canada tabled on March 1, 2016, that the federal government implement a prohibition on the advertising of foods and beverages to children;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

children means persons who are under 13 years of age; (enfants)

General Provisions

Labelling, Packaging and Advertising Directed at Children

Labelling or packaging directed at children

7.‍1 No person shall label or package any food in a manner that is directed primarily at children.

Advertising directed at children

7.‍2 (1) No person shall advertise any food in a manner that is directed primarily at children.

Clarification

(2) An advertisement may be considered to be directed primarily at children despite the fact that the advertisement is carried in a publication or broadcast intended

• (a) for persons 13 years of age or older; or

• (b) for both children and persons 13 years of age or older.

Deeming

(3) A display or depiction of a food or its label or package or of a brand element in association with a sponsorship of any of the following is deemed to be an advertisement of a food contrary to subsection (1):

• (a) an event or activity that is intended primarily for children, except in respect of sports equipment or other durable goods or materials supplied by the sponsor in support of the event or activity; or

• (b) a permanent facility that is intended primarily for children, such as a school or daycare centre.

Definition of brand element

(4) In this section, brand element includes a brand name, trademark, trade name, distinguishing guise, logo, graphic arrangement, design or slogan that is reasonably associated with or that evokes a food or a brand of food.

Communication media

7.‍3 (1) No person shall publish or cause to be published any advertisement that is contrary to subsection 7.‍2(1).

Exception

(2) Subsection (1) does not apply to the distribution for sale of an imported publication or the retransmission of a broadcast that originates outside Canada.

Foreign media

(3) No person in Canada shall advertise any food contrary to subsection 7.‍2(1) by means of a publication that is published outside Canada, a broadcast that originates outside Canada or any other communication that originates outside Canada.

Testimonials or endorsements

7.‍4 (1) No person shall, directly or indirectly, promote a food by means of a testimonial or an endorsement in a manner that is directed primarily at children.

Depiction

(2) For the purposes of subsection (1), the depiction of a person, character or animal, whether real or fictional, is considered to be a testimonial or an endorsement.

Prohibited sales promotions

7.‍5 (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.

Definition of consideration

(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.

Prohibited sale

7.‍6 No person shall sell any food

• (a) that is labelled or packaged contrary to section 7.‍1;

• (b) that is advertised contrary to subsection 7.‍2(1);

• (c) that is promoted contrary to subsection 7.‍4(1); or

• (d) in respect of which any direct or indirect consideration is offered or provided contrary to subsection 7.‍5(1).

Public health authority

7.‍7 Subsections 7.‍2(1), 7.‍4(1) and 7.‍5(1) do not apply to an advertisement, a promotion by means of a testimonial or an endorsement, or a sales promotion by a public health authority or a person acting in collaboration with a public health authority for educational purposes.

• (e.‍1) setting out factors that may be considered, among others, in determining whether

• (i) for the purposes of section 7.‍1, a food is labelled or packaged in a manner that is directed primarily at children, including how the label or package is presented,

• (ii) for the purposes of subsection 7.‍2(1), a food is advertised in a manner that is directed primarily at children, including how, when and where an advertisement is communicated,

• (iii) for the purposes of subsection 7.‍2(3), an event, activity or permanent facility is intended primarily for children,

• (iv) for the purposes of subsection 7.‍4(1), a food is promoted by means of a testimonial or an endorsement in a manner that is directed primarily at children, including how, when and where the testimonial or an endorsement is displayed or communicated, and

• (v) for the purposes of subsection 7.‍5(1), a consideration is intended primarily for children, including the nature of the consideration and how it is presented;

Clause 2: New.

Clause 3: New.

Clause 4: New.

Clause 5: Relevant portion of subsection 30(1):