Maclaren Corlett (Lawyers Est. 1873)

Many of you know that in October of 2016 the Minister of Health launched a Healthy Eating Strategy for Canada.  As part of this strategy Health Canada is in the process of revising Canada’s Food Guide, likely a necessary thing as it has not been updated since 1992.  The government is also working on “restricting the commercial marketing of unhealthy foods and beverages to children.”  This blog will not discuss the government’s lack of adequate definition of “unhealthy”.  Rather my concern is the government’s plan to change the definition of “children” insofar as the marketing of foods and beverages is concerned, from children under 12 to “children” under 17.

Think about that.  According to the government a person 16 years of age is not mentally mature enough to understand that advertising is designed to sell product.  Now, according to the government a 16 year old IS mature enough to understand the responsibility associated with driving a car, mature enough to give sexual consent, and mature enough to join the Canadian Forces reserves.  In fact the age of criminal responsibility is 12!

Within the context of this new definition of “child”, the government’s current “child-directed” definitions are particularly concerning from both a compliance perspective and a broader economic perspective.  Regarding television, the “child-directed” proposal is based on “time-of-day” (6:00 am to 9:00am and 3:00pm to 9:00pm weekdays; 6:00am to 9:00pm weekends and ALL children’s specialty channels and all children’s programming, regardless of the time the program airs.  Regarding the Internet “child-directed” includes any website, platform or app that is intended specifically for children, regardless of viewers, and all marketing on websites, platforms and apps that are “popular” (their word) with children even if these channels are intended for adults as well.  What the government has NOT done is define “child-directed” or “popular”.  Is that the majority of viewers/users?  Is it the 35% threshold that is used by the participants in the Children’s Advertising Initiative?

Without a proper, exacting, definition how can advertisers be expected to comply?  How can the government expect to enforce?

In keeping with the law of unintended consequences, there is also the likelihood of significant economic impact from prohibiting the food and beverage industry from marketing to children according to this new proposal.  The ability of advertisers to legitimately market to its adult target will be severely restricted if they cannot utilize programming or websites that are largely adult directed but may have children viewing as well.  Hockey Night In Canada is a good example.  Only a very small percent of its audience is children (under 12), but based on the government’s proposal, any airtime prior to 9:00pm would it be considered “child-directed” and therefore no longer a vehicle on which food and beverage manufacturers can advertise?  What would happen to beer advertising?  What about other sports broadcasts like the Saturday afternoon baseball game, or PGA Golf?  How will televisions stations (already under threat from other media) replace the revenue previously earned from food and beverage companies?

While I agree with the government that marketing (of any product, not just foods) is powerful and children are particularly vulnerable, I believe that defining children as under 17 is nonsensical and that the route of self-regulation, through such codes and initiatives as The Broadcast Code for Advertising to Children, the Canadian Children’s Food and Beverage Advertising Initiative, and other category specific guidelines, all of which are developed and administered by thoughtful, highly qualified individuals (many of whom are parents themselves) is already an approach that recognizes the responsibility to be aware of the more vulnerable audience.  Our youth would be better served by having more attention paid to teaching them to think critically and to make sensible, reasoned judgements about what they see and hear…in all areas of communication, not just advertising for food and beverages.