Ad Standards Canada (“Ad Standards”) has indicated that, later in 2023, it will begin administering and enforcing the Code for the Responsible Advertising of Food and Beverage Products to Children (the “Code”), which requires advertisers to use caution when advertising food and beverage products if there is a possibility that the ad could be viewed as primarily directed to children.
The Association of Canadian Advertisers, the Canadian Beverage Association, Food, Health & Consumer Products of Canada and Restaurants Canada recently developed the Code and its companion document, the Guide for the Responsible Advertising of Food and Beverage Products to Children (the “Guide”). The purpose of the Code and Guide is to expand upon already existing statutory and self-regulatory regimes in Canada including, in particular, the children’s advertising regime in the Province of Quebec. The Code and Guide are not replacements for existing rules.
Application of the Code and the general prohibition
The Code sets out a general prohibition on advertising any food or beverage product in a manner that is primarily directed to persons under the age of 13, unless the product meets certain nutrition criteria found in Appendix A of the Code. Appendix A sets out requirements for prepackaged products as well as restaurant and food service meals. The criteria are generally focused on saturated fat, sodium and sugar content.
Advertising that “features” a food or beverage product (meaning that it actually appears in the ad), and that is directed to residents of Canada in any media, is subject to the Code. This includes foreign ads designed to reach residents of Canada. However, displays, in-store flyers and ads, menus, point of sale materials and other on-premises communications, as well as packaging, labels, wrappers, and containers are exempt (“Exempt Media”).
Note: Even if the products involved meet the nutrition criteria, the ad must still meet the requirements of Part V of the Code, which prohibits the use of words that directly urge a child to purchase a food or beverage product or that urge the child to ask another person to do so (or to inquire about the product). This prohibition also applies to Exempt Media even though such media is not otherwise subject to the Code.
Criteria taken into consideration
The Code requires the following three criteria to be considered when determining whether an advertisement is primarily directed to children:
- the nature and intended purpose of the food or beverage product advertised;
- the manner of presenting the advertisement; and
- the time and place it is shown.
These three criteria must be taken into account together in an overall analysis of the ad, as each one when taken separately is not necessarily determinative. The Guide provides the example of an ad placed for broadcast outside of children’s programming that could still be considered as advertising primarily directed to children if the product is something children would find very appealing and the ad messaging and creative content are clearly meant for children.
Brands and advertisers will need to ask themselves whom they intend to purchase or use the advertised product and whether the product might be highly appealing to children. They will also need to consider if the messaging and creative content are primarily meant to attract children (e.g. are the music, language, and visual depictions especially appealing to children?).
With regard to the time and place shown, brands and advertisers will need to consider the proportion of children that make up the audience or that might be reached. The Guide provides that if the audience composition of children is less than 15%, if the advertising is on age-gated websites, in bars and nightclubs, or in and around adult sporting event venues, then there would be a presumption that the ad is not primarily directed to children in terms of time and place. These are just some examples from the Guide that fall into this category of presumption.
Administration and enforcement of the Code
Ad Standards has advised that it will provide preclearance services for ads that may be subject to the Code. As part of this service, it will consider whether the ad complies with the Code and authorize the advertiser to use the Ad Standards Clearance Services Check Mark. Advertisements that are not pre-cleared by Ad Standards or that have been materially altered may become subject to Ad Standards’ complaint procedure if they do not comply with the Code. If subject to a complaint and Ad Standards determines that the advertisement does not comply with the Code, it may require the advertiser to withdraw or amend the advertisement. It may also identify the non-compliant advertising in a report issued pursuant to the Code.
Given that Ad Standards will begin administering the Code later this year, brands and advertisers should start thinking about whether their ongoing and upcoming ad campaigns constitute advertising for the purposes of the Code and whether such advertising is compliant with the Code’s requirements.
If you have any questions about food and beverage advertising in Canada, please feel free to reach out to any member of Miller Thomson’s Marketing, Advertising and Product Compliance team.