Do you remember racing to the bottom of the cereal box to discover what treasure lied inside? We all have memories of beholding a hockey trading card or a dinosaur that grew in water which gave us a few moments of joy before rushing off to school. Well, Bill S-228 entitled The Child Health Protection Act (the “Bill”)1 may bring an end to the practice of offering a gifts (or in the words of the Bill, consideration) directed to children in exchange for a purchase.
By way of background, it would seem that Canada ranks sixth among industrialized nations in respect of its percentage of children who are obese. On January 25, 2016, the WHO’s Commission on Ending Childhood Obesity2 found that there is evidence that the marketing of unhealthy foods and sugar sweetened beverages has a negative impact on child obesity. In its report, it recommended that any attempt to tackle childhood obesity should include a reduction in the exposure of children to marketing to such products. And so, along comes Bill S-228 which underwent its first reading in the senate on September 27, 2016.
The Bill seeks, inter alia, to make the following amendments to the Food and Drugs Act:
• Defining the age for Children: Children are now classified as persons under 13 years of age.
• No labelling, packaging or advertising to Children: No person may label or package, or advertise any food in a manner that is directed primarily at children.
• No Brand promotion: A display or depicting of a food or its label or package or of a brand element (such as a brand name, trademark, trade name, distinguishing guise, logo or slogan) in association with a sponsorship for an activity intended primarily for children, except in respect of sports equipment or other durable goods in support of the event or activity or (ii) a permanent facility that is intended primary for children such as a daycare or school is not permitted.
• No Testimonials: No person may, directly or indirectly, promote food by means of a testimonial or an endorsement in a manner that is directed primarily at children. This includes the depiction of a person , character or animal, whether real or fictional is considered to be a testimonial or an endorsement. Let’s hope Tony the Tigger and Ronald McDonald have a timeshare reserved for retirement.
• Prohibited Sales Promotions: No person may offer or provide in exchange for the purchase of a food, any direct or indirect consideration that is intended primarily for children. Consideration includes a gift to a purchaser or third party, a bonus or a right to participate in a game, lottery or contest. The only permissible promotion by testimonial or endorsement is by a public health authority (or someone acting in collaboration with a public health authority) for educational purposes.
The Bill stands to have repercussions in several sectors of the food industry beyond our beloved cereal prizes including restaurants (Less than Happy Meal, anyone?) and confectionary (Kinder No Surprise), just to name of few. Overall, the approach taken seems paternalistic in that it does not consider the effects of socio-economic status, education, genetic predisposition and parenting, in contributing to childhood obesity in Canada. Instead, the Bill seems to place the burden most heavily on the shoulders of industry and perhaps unfairly so. The Bill seems intent on pushing industry to do more to promote a healthy, active lifestyle in children below the age of 13 despite the positive results shown in 2015 Compliance Report3 issued by Advertising Standards Canada.
It would seem that the Bill is a renewed effort by the government to increase enforcement of advertising standards in Canada. On the prescription drug side, a number of hospitals, natural health product manufacturers, plastic surgeons and pharmaceutical companies found themselves specifically named on Health Canada’s list of advertising enforcement actions made public last January.4 In an effort to increase transparency, Health Canada provided details of over 152 advertising infractions it undertook to enforce in 2015.
The list of infractions included:
1) Complaints regarding the direct-to-consumer advertising of an unauthorized product
2) Complaints regarding advertising of unauthorized claims
3) Complaints regarding the direct-to-consumer advertising of specific products such as Botox, Latisse, Dysport.
4) Complaint regarding the advertising of an unauthorized product to healthcare professionals and formulary officials;
5) Complaint regarding the advertising of an unauthorized product.
In the post Vanessa’s law era, naming names as Health Canada has, may be a nudge to industry that these types of violations are now going to be enforced and taken seriously. Either way, the publicity associated with being included in this list will force several, if not all, manufacturers and license holders to take a good hard look at the types of claims they are making to the public.
While informative of the types of violations that garner attention from the regulatory, namely Health Canada, it equally acts as a hypothetical dunce hat for those who find themselves on the list. More importantly, it may be that the intended purpose for publishing the list is to obtain passive compliance from “perpetrators” (their words not ours) to voluntarily comply with acceptable advertising rules.
So how do you keep yourself out of regulator’s line of sight whether you are adverting foods, natural health products, prescription products or some other regulated materials in Canada? You may consider putting into place a few internal checks and balances that can assist in drafting promotional materials that is compliant and cost efficient:
• This may be a little obvious (but has been included because of the types of complaints included on the list), make sure your product is approved or has the appropriate licenses required to be sold in Canada. This is particularly relevant to natural health products and nutraceuticals.
• When making claims, avoid adjectives in the description of your products, be it cosmetics, food, natural health products, medical devices or drug products.
• State the therapeutic benefit or use of the product (if applicable) in simple straight-forward language and only if there is quantitative data that can substantiate the therapeutic claim.
• In the absence of unequivocal quantitative data, avoid comparative language, in any form. This means, not only avoiding references to other products, but also suggesting that the product is better.
• When in doubt, recite the language verbatim in the product labelling currently approved by the relevant regulator. While your marketing department will likely hate you, it will keep you out of hot water with the regulator, be it Health Canada or the Canadian Food Inspection Agency and the like.
• Finally, consider creating an internal advertising committee consisting of members of your regulatory group, marketing group and your legal department. Alternatively, you may consider appointing and training a single individual to be the advertising compliance officer who has access to counsel (either internal or external) to vet materials before they are released to the public. and be accountable for the contents of promotional materials.
About the Author
Christelle Gedeon, Ph.D., is an Associate with Fasken Martineau DuMoulin, LLP