The Association of Canadian Advertisers (ACA), the Canadian Beverage Association (CBA), Food, Health & Consumer Products of Canada (FHCP) and Restaurants Canada recently published the Code for the Responsible Advertising of Food and Beverage Products to Children (the “Code”). The Code, and its accompanying Guide for the Responsible Advertising of Food and Beverage Products to Children (the “Guide”) expand upon the legislative and self-regulatory regimes that already exist in Canada by setting out the conditions governing responsible advertising of food and beverages to children. They recognize that children are a special audience and that particular care must be taken in developing advertising for children.
1. Principle & Restrictions
The main restriction set out in the Code is spelled out as follows: “Advertising for a food or beverage product may not be primarily directed to persons under thirteen years of age (the “child” or “children”) unless the product satisfies the child advertising nutrition criteria set forth in Appendix A of the Code (the “Restriction”)”. These nutrition criteria are based on the food or beverage’s saturated fat, sodium and/or sugar content. Any food or beverage products that exceed one of these minimum standards may not be advertised directly to children. For instance, a prepackaged food or beverage with a total of over 2 grams saturated fats per reference amount cannot be advertised to children.
The Code thus permits any food or beverage products that are “low-in” saturated fat, sodium or sugar to be advertised directly to children. These ads cannot, however, use words that urge a child to purchase or enquire about a food or beverage product. Examples of such words include “Hey kids, buy me!”, “Ask your parents to [buy product x”].
2. What is an Advertisement Primarily Directed to Children
For the purposes of the Code, “children” refers to any persons under the age of 13.
The Code applies to all advertising that features a food or a beverage product but does not apply to the following ads, which are exempted from the Restriction:
• Displays, in-store flyers, posters, menus, menu boards, point-of-sale material and other “on-premises” communication and material (although these must still comply with Part 5 of the Code prohibiting words that encourage a child to purchase or inquire about a food or beverage product);
• Packaging, labels, wrappers, containers, and product shape;
• Promotional Activities, namely sampling of food and beverage products and premiums included as part of the product, (note, however, that advertising associated with such promotional activities and premiums are subject to the Code);
• Advertising that features a food or beverage product that does not satisfy the Restriction and promotes an educational or charitable initiative or cause.
Assuming that a given ad is not exempted based on the Restriction, then advertisers must consider whether an ad is primarily directed at children. To do so, the following factors should be considered:
(a) The nature and intended purpose of the food or beverage product advertised:
• Whether the product is essentially intended for children or appealing to children.
(b) The manner of presenting such advertisement:
• Whether the message is designed to primarily attract the attention of children because of its level of language, depictions of fantasy/magic/mystery/suspense/virtual world, music or jingles appealing to children, or animation or special effects.
(c) The time and place the ad is shown:
• Whether the proportion of children that make up the audience for the ad, due notably to the place where the ad appears; and/or
• Whether there is a special instruction regarding social media influencers, e.g. the Guide states, “If a child is engaged by a brand as an influencer, there will be a presumption that any advertising for that brand on that child’s social media is primarily directed to children.”
The analysis is holistic and none of these factors are determinative on their own.
Should the analysis conclude that the ad is primarily directed at children (and the food advertised does not meet the Restriction), then the ad will be prohibited.
Put more simply, the only circumstances where an advertiser can directly advertise to children is either, (1) because the food or beverage product’s nutrition content is below the thresholds set out in the Code, or (2) because the ad falls outside the scope of the Code (e.g. it’s a display or other on-premise material or educational initiative).
3. Preclearance & Enforcement
Advertising Standards Canada (“Ad Standards”), a prominent organization promoting and enforcing self-regulation of advertising in Canada, will be responsible for administering the Code.
In order to ensure compliance of any potential ads with the above Code and its Guide, Ad Standards will offer a preclearance service to all interested advertisers. Any ad (i.e. from any media) can be submitted in the form of a script for review. Ad Standards will either approve or reject the script, or it may require certain revisions.
Once cleared, the advertiser may use a specifically devoted logo to show that the ad was reviewed and precleared by Ad Standard.
In the event that an advertiser was to use an ad that does not comply with any of Ad Standards’ regulations, and namely the new Code, consumers and/or competitors may file a complaint to Ad Standards. Upon further investigation, Ad Standards may then publicly report noncompliance with the Code.
The Code and its accompanying Guide help to streamline the various requirements that advertisers must meet when seeking to advertise food and beverage products to children.
Advertisers will be expected to comply with the guidelines by summer 2023.
Concerned entities must be wary of the broad scope of this regulation and its enforcement mechanisms. Please do not hesitate to reach out to us if you need further guidance in navigating this new regulatory framework.