On June 28, 2023, Ad Standards' new
Code for the Responsible Advertising of Food and Beverage
Products to Children (FBA Code) took effect. The FBA Code
and its complementary Guide for the Responsible Advertising of
Food and Beverage Products to Children set new restrictions on
advertising certain foods to children.
Ad Standards is the advertising non-profit, self-regulatory body
that administers the Canadian Code of Advertising
Standards and sets the criteria for acceptable advertising in
Canada. Companies in the food and beverage industry are encouraged
to review the new standards and expectations under the FBA Code,
which are now in force.
Core Restrictions and Prohibitions
Under the FBA Code, no advertising for a food or beverage
product may be primarily directed at a child unless the product
satisfies specific nutrition criteria. This core restriction
applies to advertising featuring a food or beverage
product directed to residents of Canada in any media (including
social media, streaming services, applications and games).
"Child" is defined as a person under 13 years of
age.
There is certain advertising that is expressly exempt from this
core restriction, such as:
- Displays, in-store flyers, posters, menus, menu boards and other on-premises communications and material about a food or beverage product.
- Advertising that features a food and/or beverage product that does not meet the nutrition criteria but promotes an educational or charitable initiative or cause, including those associated with children or families (unless greater emphasis is placed on the food or beverage than the initiative or cause).
Furthermore, the FBA Code would not apply to a product's
packaging elements (like labels, wrappers, containers and product
shapes), since packaging is not considered advertising under the
FBA Code.
However, even if a food or beverage product satisfies the nutrition
criteria and may be directed at children, or is exempt from the
core restriction above, all food and beverage advertising:
- Must not use words that directly urge a child to purchase a food or beverage product.
- Must not use words that directly urge a child to ask another person to make inquiries about it or purchase it.
For example, it would be prohibited to use language such as
"Hey kids, buy me!" or "Ask your parents to buy this
product!"
Subject to limited exceptions, the FBA Code also prohibits other
practices, such as advertising any food or beverage products in
elementary or middle schools (regardless of nutritional profile),
or paying for or actively seeking to place a food or beverage
product in entertainment or editorial content primarily directed at
children for the purposes of promoting the sale of such
products.
Advertising Primarily Directed at Children
Ad Standards will consider the following factors in determining whether advertising is "primarily directed at children":
- the nature and intended purpose of the food or beverage product advertised
- the manner of presenting such advertisement
- the time and place it is shown
An overall analysis of the advertisement must consider all three of these criteria and the relationship between them. For example, an advertisement for a juice box featuring an adult preparing a child's lunch may be less likely to be considered primarily directed to children than an advertisement featuring a child with that juice box at a school cafeteria.
Nutritional Conditions
The FBA Code sets out the nutrition criteria to be met in order for advertising to be primarily directed to a child. These criteria vary for:
- Pre-packaged food and beverage products
- Restaurant and food service meals
- Breakfast cereals
Notably, while all nutrition criteria contain threshold amounts in relation to saturated fat, sodium and sugars, restaurant and food service meals and breakfast cereals have additional specifications (e.g. breakfast cereals must contain at least 8 grams of whole grain per 1 cup serving).
Pre-Clearance and Enforcement
Ad Standards' role in actualizing this new FBA Code is
two-part: through pre-clearance services and enforcement actions.
Ad Standards expects that all advertisements for food and beverages
that could reasonably be considered to be primarily directed at
children will be submitted for pre-clearance. Members of the public
or fellow advertisers may submit complaints to Ad Standards about
an advertisement's non-compliance with the FBA Code.
While the FBA Code is not law, if Ad Standards determines that an
advertisement does not comply with the FBA Code under their Food
and Beverage Advertising Code Complaints Procedure, Ad Standards
will require the advertiser to withdraw or appropriately amend the
advertisement without delay. Ad Standards may also publicly
identify non-compliant advertising.
It will be interesting to see how the FBA Code is interpreted and
enforced in light of Health Canada's proposal to restrict food
advertising primarily directed at children. While not yet
finalized, Health Canada's proposed policy would also apply
restrictions to advertisements (albeit on television and digital
media only) of certain foods (with added sodium, free sugars or
added fats that exceed certain thresholds) primarily directed at
children under the age of 13. Whereas the FBA Code is now in force,
Health Canada's proposal is expected to take a longer period of
time to be finalized.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.