On February 9, 2021, the Italian Advertising Self-Regulatory Body ("IAP") published a new regulation (the "Regulation") aimed at governing commercial communications on food products and beverages to protect children and ensure healthy eating.

The Regulation broadens the rules already provided by Article 11 of the Self-Regulatory Code on Commercial Communications (the "IAP Code"), which prescribes that special consideration shall be given to messages aimed at minors below the age of 12 and teenagers. Among other things, Article 11 of the IAP Code already forbade commercial communications that encourage "the adoption of imbalanced eating habits or disregard for the need to follow a healthy lifestyle." Article 11 of the IAP Code has now been amended so that that food product and beverage advertising aimed at children is also subject to the content of the Regulation, which is expressly referenced as being part of the IAP Code.

The Regulation largely incorporates the content of the Guidelines for marketing communication relating to food products and beverages, to protect children and their proper nutrition (the "Guidelines"), issued by the Italian Ministry of Health in 2015 together with the IAP and a group of trade associations, which—although not formally binding—highlight the importance of fair advertising of food products and of the monitoring activity carried out by the IAP.

Accordingly, Article 4 of the Regulation includes a ban on "statements or representations that could mislead children, including omissions, ambiguity, and exaggerations that are not obviously hyperbolic, particularly regarding the nutritional characteristics and effects of the product, prices, free offers, conditions of sale, distribution, the identity of persons depicted, prizes, or rewards." Further, the Regulation cites some general principles governing advertising, such as the principle of fair representation (Article 3) and the principle of transparency (Article 6).

In addition to the above, by issuing the Regulation the IAP sought to take up the call put out by Directive (EU) 2018/1808 (not yet transposed in Italy, except for very few provisions), which reiterates the importance of codes of conduct in offering protection to consumers and calls for self-regulation and co-regulation to reduce children's exposure to inappropriate audiovisual commercial communications. Indeed, the 2018 Directive amended and updated the Audiovisual Media Services Directive ( Directive (EU) 2010/13) introduces, among other things, an explicit reference to codes of conduct that operate to "effectively reduce the exposure of children to audiovisual commercial communications for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium, and sugar, of which excessive intakes in the overall diet are not recommended."

Accordingly, the Regulation moves in that direction by providing a specific rule under Article 5 relating to "Audiovisual commercial communications for food products and beverages containing fat, trans-fatty acids, sugar, and sodium or salt." Specifically, Article 5 of the Regulation provides that audiovisual commercials aimed at children "must not emphasize the positive nutritional qualities" of food and beverages containing "fat, trans-fatty acids, sugar, and sodium or salt, of which excessive intakes in the overall diet are not recommended." It does, however, allow for "highlighting the presence, absence, reduction, or replacement of one or more ingredients or their components within the limits permitted by current legislation."

Further restrictions are provided by the Regulation, which applies generally to any form of commercial communication, thus including, for example, advertising, sponsorship, and direct marketing, but also packaging, wrapping, and labeling—in other words, any message capable of leading to immoderate consumption that runs contrary to healthy eating behaviors.

Vacation may not be top of mind for employees in Ontario right now: March Break is postponed, public health officials continue to advise against non-essential travel, and the Government of Canada imposed greater international travel restrictions. But even though employees may want to save their time off for warmer weather and, hopefully, an improved public health situation, employers in Ontario must nonetheless ensure that employees are taking at least the minimum annual vacation time prescribed under the Employment Standards Act, 2000 (the ESA).

How many weeks of vacation are employees entitled to under the ESA?

An employee who has worked for the employer for at least one year is entitled to at least two weeks of vacation per year. Once the employee reaches five years of service, he or she is entitled to at least three weeks of vacation per year. Note that these are the statutory minimums for vacation under the ESA, and a particular employer's vacation policy or collective agreement may provide for more.

Who decides when an employee takes vacation?

The employer is generally entitled to determine when an employee takes vacation, subject to any conditions set out in the ESA, employment contracts, or collective agreements. Further, an employer should always act reasonably in making decisions about scheduling vacation.

When does vacation have to be taken?

Employees must take annual vacation under the ESA no later than 10 months immediately following the completion of the vacation entitlement year. Unless the employee requests otherwise, the ESA requires employers to schedule vacation in unbroken periods of at least one week.

What if an employee does not want to take vacation?

Although it is understandable that employees may want to defer vacation given the current public health restrictions, employers must ensure that each employee is taking at least his or her statutory minimum vacation within the timelines prescribed by the ESA. Failing to do so will generally put the employer in non-compliance with the ESA.

The only way to forego an employee's minimum vacation under the ESA – even if the employee wants to – is with the approval of the Director of Employment Standards.

Key take-away

As a best practice, employers and employees should generally avoid attempting to forego annual vacation. Doing so is inconsistent with the purpose of the minimum vacation entitlements under the ESA, which are intended to provide employees with a minimum break from work each year. Further, an employee could suffer physical or mental health consequences because of a significant period without a vacation, which may also pose an occupational health and safety risk depending on the industry.

Employers have a statutory duty to ensure that employees take their minimum annual vacation entitlements within the prescribed time limits, even if the current travel restrictions mean employees will have to settle for a "staycation".

Originally Published by Norton Rose, February 2021

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