Government passes food marketing bill

As Health Canada works on regulations, many stakeholders were unable or unwilling to participate in consultations.

The marketing of unhealthy food and beverages to children will be restricted come 2021, although precise regulations have yet to be outlined by Health Canada, following the federal government’s passing of Bill S-228 on Wednesday.

The bill, also known as The Child Health Protection Act, will ban the advertising of certain foods and drinks to children under the age of 13 in an effort to reduce obesity rates in Canada. It is expected to receive royal assent in the coming weeks, at which point Health Canada will have two years to impose regulations.

Health Canada is in the process of drafting preliminary regulatory guidelines, expected to be presented later this fall. Those guidelines will aim to define what constitutes “unhealthy food,” to set measures for determining if an ad is directed at children and to set out exemptions to the bill, such as sports sponsorships directed at children. Once published, the proposed regulations will be open to further public and industry consultation.

The department is considering defining “unhealthy food” as those that exceed amounts used for products labelled as low in sodium, saturated fat and sugar, or as those having a mandated front-of-package label for products containing “nutrients of public health concern,” as explored earlier this year.

Ron Lund, president of Association of Canadian Advertisers, says the association has “consistently backed” the government’s objective of reducing childhood obesity, but maintains that there are significant issues with the way the legislation was developed.

For one, he says industry stakeholders were largely shut out from consultations during the development process – although more than 1,400 people, health organizations and industry stakeholders participated in official consultations between June 10 and August 14, 2017, according to Health Canada.

Moreover, stakeholders have since been invited by the department to participate in the development of the regulatory framework – namely through a mandated cost-benefit analysis (CBA) of the bill, aimed at determining the potential costs of implementation – which many stakeholders were unable, or unwilling, to complete.

Of the 51 stakeholder organizations (and their respective members) that were sent the CBA, only 11 responded and two provided data to Health Canada, according to the department, raising questions about the industry’s willingness to participate.

The low response rate follows efforts by the ACA and a group of stakeholders – including the Canadian Beverage Association, Food & Consumer Products of Canada and Restaurants Canada – to inform the government of what they say are issues with the CBA survey methodology and format.

A third-party assessment of the CBA requested by the ACA and conducted by Ottawa-based consultancy RIAS, which specializes in regulatory impact analysis, concluded that it was “premature” to ask stakeholders to assess the bill’s potential impacts. It added that it felt the CBA would fail to provide a “meaningful assessment” of the bill, and that it was “unlikely” many companies would respond.

Among the issues identified by RIAS were what it called the request of “unnecessary information,” technical errors in defining the costs to be identified by respondents, the request of potentially confidential business information, “ill-defined terminology” and failing to consider impacts throughout the value chain.

The industry didn’t “refuse” to complete the CBA survey, says Lund. “We just said, ‘We can’t.’”

For example, a spokesperson for Restaurants Canada said the organization had responded to the survey, “at least as much as we were able,” noting that many of the questions pertained to business operations, but that it itself is not a foodservice business.

A Health Canada spokesperson said the department has been in touch with concerned stakeholders and noted that the survey is “one of many tools” (in addition to industry reports, data from regulators and academic studies) used in preparing the CBA.

Health Canada will also be seeking additional input through a second survey that will be distributed post-publication of the guidelines, although “neither the methodology nor the format of the cost-benefit analysis has changed.”

The ACA hopes the new CBA survey will contain questions around the proposed front-of-pack labelling requirements, as well as other considerations pertaining to Health Canada’s Healthy Eating Strategy, as this would take into account any “crossover effects,” says Lund.

“Anything less than doing a comprehensive CBA is unacceptable to us.”

In addition to the CBA survey, Lund noted what he sees as several other problems with the nature of Bill S-228. He says the bill will likely capture the “vast majority” of processed and restaurant foods, even those intended for adults. Moreover, the legislation and Health Canada documents use the words “marketing” and “advertising” interchangeably, so it remains unclear whether packaging restrictions will be included in the proposed rules, he says.

Of particular concern to the ACA is the fact that conversations have drifted towards imposing restrictions on products containing more than 5% of the recommended intake of sodium, sugars and saturated fat, as opposed to the more lax 15% threshold, according to Lund.

Health Canada will only make that distinction clear when it publishes its proposed guidelines, although the preliminary consultations conducted last year showed that there was “general support for the proposed approach,” according to Health Canada. Moreover, at the time, 70% of respondents preferred the 5% threshold over the 15% threshold option.

“Right now, our understanding is it could quite easily be 5%,” Lund says.