CODE FOR THE RESPONSIBLE ADVERTISING OF FOOD AND BEVERAGE PRODUCTS TO CHILDREN TO COME INTO EFFECT SOON
Caroline Jonnaert1 et Élisabeth Lesage-Bigras2[1]
ROBIC, LLP
1 Partner, Lawyer and Trademark Agent, 2 Lawyer
On June 28, the new “Code for the Responsible Advertising of Food and Beverages Products to Children”[2] (the “Code”) will come into effect[3]. A joint initiative of various major associations in the field[4], the Code mirrors Health Canada’s recommendations released in December 2018[5] and comes to restrict advertising of food and beverage products to children[6].
I. PURPOSE AND RESTRICTIONS
The Code, which will be enforced by Advertising Standards Canada (“ASC“), recognizes first and foremost that “children are a special audience and that particular care must be taken in developing advertising for children”[7]. Thus, acting as a legislative complement, not a substitute[8], the Code provides a general restriction that “advertising for a food or beverage product may not be primarily directed to persons under thirteen years of age (a ‘child’ or ‘children’) unless the product satisfies the child advertising nutrition criteria”[9].
Accordingly, food and beverage advertisements that do not meet the nutritional criteria set out in the Code will require a comprehensive analysis to determine whether they are primarily directed to children[10]. This analysis must, according to the Code, take into account the context, as well as the relationship between three criteria: (i) “the nature and intended purpose of the food or beverage product advertised”; (ii) “the manner of presenting such advertisement”; and (iii) “the time and place [the advertisement] is shown”[11]. However, any advertisement permitted under this Code may not use words that urge children to make purchases or that “directly urge a child to ask another person to make inquiries about [the product] or purchase it.”[12]
In addition to the general restriction on advertising to children, the Code also includes other specific prohibitions such as (x) advertising in schools; (y) product placement in entertainment or “editorial content” directed primarily to children; and (z) urging children to make purchases[13].
II. EXCEPTIONS
The Code exempts communications such as packaging, labels, containers and product form. Displays, in-store flyers, posters, menus, posted menus are also exempt from the Code, subject to certain conditions[14]. Also not covered by the Code is “brand advertising or sponsorship advertising” that does not feature beverages and/or food products or advertising that features a food and/or beverage product “that does not meet the nutrition criteria and promotes an educational or charitable initiative or cause, including those associated with children or families […] unless such advertising puts greater emphasis on the food or beverage product featured than on the initiative or cause.”[15]
III. RECLEARANCE AND SANCTIONS
The Code requires that advertisements subject to the Code be precleared by ASC prior to publication. Failure to do so may result in complaints from members of the public and other advertisers to ASC[16]. In the event of non-compliance, Advertising Standards may remove the advertisement or even notify Health Canada[17]. It will be interesting to see how the ASC enforces the Code and its application guide[18]. In any case, our Advertising and Marketing Law team will follow the implementation of the Code and its application guide with attention. In the meantime, if you have any questions about advertising, marketing or other advertising initiatives, please do not hesitate to contact our Advertising and Marketing Law and Regulatory Affairs team.
[1] Caroline Jonnaert, LL.D., partner, lawyer and trademark agent and Élisabeth Lesage-Bigras, LL.M., lawyer at ROBIC, L.L.P., a multidisciplinary firm of lawyers and patent and trademark agents.
[2] Advertising Standards, “Code for the Responsible Advertising of Food and Beverages Products to Children“, August 2022, online (the “Code”).
[3] Association of Canadian Advertisers, “Can You Advertise Your Food and Beverage Products to Children?: A Dive Into Canada’s New Self-Regulatory System“, acaweb.ca, April 11, 2023, online.
[4] That is, the Association of Canadian Advertisers, the Food, Beverage, Health and Consumer Products Association of Canada and Restaurants Canada.
[5] Association of Canadian Advertisers, “Code and Guide for the Responsible Advertising of Food and Beverage Products to Children“, acaweb.ca, 2021, online.
[6] Restaurants Canada, “Advertising industry commits to new food and beverage code and guide to deliver on government’s objectives on advertising to children“, June 28, 2021, online.
[7] Code, art. I, para. 1.
[8] Id., s. I, para. 2.
[9] Id., s. II.
[10] Id., s. III.
[11] Id., s. III.
[12] Id., s. V.
[13] Id., s. VI.
[14] Id., s. IV.
[15] Id.
[16] Id., ss. VII and VIII.
[17] Id., s. VIII.
[18] Advertising Standards, “Guide for the Responsible Advertising of Food and Beverage Products to Children“, August 2022, online.