Lessons from Quebec/Canada

Child Protection,
Health Protection, and
Consumer Protection
Against Commercial Marketing:
Lessons from Quebec/Canada
a briefing for
Institut national de prévention et d'éducation pour la santé
Paris, France
3 March 2014
speaking notes of
Bill Jeffery, LLB, National Coordinator
ABOUT CSPI
The Centre for Science in the Public Interest…
•
Is an independent, non-partisan health advocacy organization focussing on
nutrition policy issues.
•
Has offices in Ottawa and Washington, with Canadian staff based mostly in
Ottawa and Toronto.
•
Is funded in Canada approximately 100,000 subscribers to the Canadian edition
of the Nutrition Action Healthletter—on average more than one subscribing
household within a one-block radius of every Canadian street corner.
•
Does not accept funding from industry or government.
3
A subscriber, on average,
within a block of every Canadian street corner (outside PQ)
100,000 in Canada, 850,000 in the U.S.
4th Biennial
Championing Public Health Nutrition
conference Ottawa-Gatineau, Canada, November 25-26, 2014
Public health goals
OUR MOTIVATION
Our Motivation:
Diet-related disease causes real, avoidable
deaths and economic loses, both on a grand scale.
For example, in Canada…
•
An average of nearly 5 years of healthy life expectancy is lost due to six diet-related risk
factors. (See: World Health Organization, The World Health Report 2002, (Geneva: WHO, 2002). Esp. see Table 4 in the annex which shows that loss of healthy
life expectancy due to all risk factors is 9.4 disability-adjusted-life-years averaged for Canadian men and women at http://www.who.int/whr/2002/en/whr2002_annex4.pdf)
and Table 10 which shows that, in developed countries, 50% of all-risk-attributable Disability-Adjusted Life Years (DALYs) were lost due to blood pressure, cholesterol,
overweight, low fruit and vegetable intake, and certain rare types of childhood and maternal undernutrition at http://www.who.int/whr/2002/en/whr2002_annex9_10.pdf).
So, 50% of 9.4 years is 4.7 years.)
•
And estimated 48,000-66,000 premature deaths annually are caused by diet-related disease
due mainly to cardiovascular disease, diabetes, and certain cancers caused by excess
sodium intake, risky blood cholesterol and glucose levels, inadequate fruit and vegetable
intake, and excess abdominal body fat. World Health Organization. Global Health Risks: Mortality and burden of disease attributable to selected
major risks. 2009. W.H.O. Geneva. See, esp. p. 17. Available at: http://www.who.int/healthinfo/global_burden_disease/GlobalHealthRisks_report_full.pdf Statistics Canada. Mortality,
Summary List of Causes. 2008. Ottawa. Catalogue no. 84F0209X which indicates the total number of deaths in 2008 was 238,617, 20% of which is: 47,723. Available at:
http://www.statcan.gc.ca/pub/84f0209x/84f0209x2008000-eng.pdf See, for example, the extrapolation from published figures in endnote 11 at:
http://cspinet.org/canada/pdf/Eng_CSPI_Finance.pdf which, through crude, is also consistent on a per capita basis with the 365,000 annual US deaths attributed to poor
diet and physical inactivity. (cf. Mokdad AH, et al, “Actual Causes of Death in the United States, 2000” 291(10) Journal of the American Medical Association 1238-1245,
and 293(3) pp. 293-4, 298. See also, the Drummond Commission Report (2012), recommendation #5-85 at
http://www.fin.gov.on.ca/en/reformcommission/chapters/ch5.html#ch5-o See also: http://www.healthmetricsandevaluation.org/gbd/visualizations/gbd-arrow-diagram
•
A total of $5-30 billion per year is lost from the Canadian economy as a whole (avoidable
health care costs and lost productivity) Public Health Agency of Canada. Obesity in Canada. 2010. Ottawa at 28-29. Available at:
http://www.phac-aspc.gc.ca/hp-ps/hl-mvs/oic-oac/assets/pdf/oic-oac-eng.pdf; Anis AH, Zhang W, et al. Obesity and overweight in Canada: An updated cost-of-illness study. Obesity
Reviews. 2009;11(1):31-40; Behan DF, Cox SH, et al. Obesity and its Relation to Mortality and Morbidity Cost. December 2010. Committee on Life Insurance Research. Society of Actuaries.
University of Manitoba. Winnipeg.
7
Heart and Stroke Foundation’s
Make the Last 10 Years Count
Overarching Disease Reduction Goal:
•
WHA: NCD deaths
–
–
–
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25% by 2025 or 48,000 fewer deaths annually
approx. 190,000 Canadian deaths annually due to NCDs;
approx. 100,000 due to tobacco + poor nutrition + alcohol;
Approx. 48,000 deaths due to poor nutrition.
Probably requires taking all the measures CSPI advocates (plus stronger action on tobacco, alcohol
control), e.g.
–
–
–
–
–
–
halve sodium levels in food supply,
eliminate synthetic trans fats,
ban commercial ads targeting children,
improve nutrition labelling on the front of food packages,
reform food taxes to promote, not discourage healthy eating,
make Canada’s Food Guide more persuasive and more consistent with
science,
– Mandate sensible nutrition standards for school foods and subsidize school
meals to a level more in keeping with other OECD countries
– spur other changes in procurement;
– mandate calories, high-sodium notices on restaurant menus
How we advocate
public health nutrition law reforms
•
•
•
•
•
•
Publish: Nutrition Action, policy reports, journal articles, op-eds, book chapters,
briefing notes, technical briefs, news releases, etc.
Testify: before legislative committees, esp. House of Commons Standing Cttee. on
Health and the Codex Food Labelling Cttee (based on World Health Org., U.S. Institute
of Medicine, United Nations, OECD, Supreme Court, etc., etc.)
Media: interviews for print, and broadcast media
Participate: in formal advisory committees, e.g., the Trans Fat Task Force, Sodium
Working Group
Meet elected officials and government bureaucrats: esp. at Health Canada, Canada
Food Inspection Agency, and increasingly in provincial and municipal health authorities
Mobilize supporters: meet, call, and write NGOs, experts and grassroots supporters to:
– seek their advice (and share ours),
– mobilize their support (and offer ours), and
– (occasionally) enlist their financial support for our conferences
•
Convene: conferences of experts, policy-makers and journalists
Generally we rely on credible expert reports
NUTRITION EVIDENCE AND EXPERT REPORTS
International Reports
(UN, WHO, WB, WCRF, UN Special Rapporteur, OECD…)
Conflicts of Interest in Government StandardSetting, Program Delivery, and Advisory Function
Conflicts of Interest Coalition/Network
159 groups+networks, represents 2,000+ NGOs
CSPI-Canada letter to the Executive
Board of WHO, January 2014
Report after report calls for limits on marketing to children
(sometimes Quebec approach, sometimes UK approach)
Peter Julian, M.P.:
Federal Bill, C-430, to restrict advertising to children
Canada-Wide (as Quebec legislature has done since 1980)
• Ads limits on food label
advertising to children
(cartoon characters,
contests, etc.)
• Debate and vote as early as
the conditions are right
• How will 5 Quebec
Conservative MPs vote?
Bill C-460, Sodium Education Strategy For Canada Act
LABEL WARNINGS, FOOD SODIUM MONITORING, PROGRESS REPORTS, AND
ADVERTISING TO CHILDREN
Support for Bill C-460 from 70 community leaders
(w/ 8 million Canadian members living in 2/3 of Canadian households and
treating, serving or teachings nearly all Canadians )
failed 147-122 vote May 2013; the end of the beginning…including role for provinces
Mobilize Supporters:
Sodium Reduction Bill
60+ NGO and expert supporters (w/ links to at least 2/3 of households)
The world leader in time, and scope, and likely effectiveness
QUEBEC CONSUMER PROTECTION ACT
Quebec Consumer Protection Act
The world leader in time, and scope
(25% of population of Canada, 8 million)
•Consumer Protection Act, R.S.Q., c. P-40.1
o Section 248. Subject to what is provided in the
regulations, no person may make use of
commercial advertising directed at persons
under thirteen years of age.
o Section 249. To determine whether or not an
advertisement is directed at persons under
thirteen years of age, account must be taken of
the context of its presentation, and in particular
of
(a) the nature and intended purpose of the
goods advertised;
(b) the manner of presenting such
advertisement;
(c) the time and place it is shown.
•1 h)“advertisement” means a message designed
to promote goods, services or an organization;
•Where children consist of 15% of the TV audience
• Sections regulations 87–91 (permitting ads in
magazines that satisfy sixteen criteria designed to
limit the exploitation of vulnerable children).
Articles 8-9 of 2005/29/EC
Article 8
Aggressive commercial practices
A commercial practice shall be regarded as aggressive if, in its factual context,
taking account of all its features and circumstances, by…use of undue influence, it
significantly impairs or is likely to significantly impair the average consumer’s
freedom of choice or conduct with regard to the product and thereby…is likely to
cause him to take a transactional decision that he would not have taken otherwise.
Article 9
Use of harassment, coercion and undue influence
In determining whether a commercial practice uses…undue influence, account shall be
taken of:
(a) its timing, location, nature or persistence;
(b) the use of threatening or abusive language or behaviour;
(c) the exploitation by the trader of any specific…circumstance of such gravity as to impair the
consumer’s judgement, of which the trader is aware, to influence the consumer’s decision
with regard to the product;
Irwin Toy company challenge, 1980-1989
(Attorney General of Québec v. Irwin Toy, Ltd., [1989] 1 S.C.R. 927.)
Official court report: http://www.canlii.org/en/ca/scc/doc/1989/1989canlii87/1989canlii87.html
Searchable court report: http://www.canlii.org/en/ca/scc/doc/1989/1989canlii87/1989canlii87.pdf
Highlights:
•
“...advertising directed at young children is per se manipulative.
Such advertising aims to promote products by convincing those
who will always believe.”
•
Supreme Court of Canada accepted the following explanation of the
objective of the legislation: “The concern is for the protection of a
group which is particularly vulnerable to the techniques of
seduction and manipulation abundant in advertising.” (p. 987).
•
Ban is a permissible limit on commercial freedom of expression
under the Charter of Rights and Freedoms (Irwin Toy, 1989, p.
1,000).
•
The court relied heavily on the 1981 U.S. Federal Trade
Commission’s report entitled Final Staff Report and
Recommendation, In the Matter of Children’s Advertising. The
report concluded that:
•
–
the specific cognitive abilities of young children lead to their inability to fully understand childoriented television advertising, even if they grasp some aspects of it. They place indiscriminate trust
in the selling message. They do not correctly perceive persuasive bias in advertising, and their life
experience is insufficient to help them counter-argue.… As a result, children are not able to evaluate
adequately child-oriented advertising. (Irwin Toy, 1989, p. 988).
Reaffirmed in 2004 in Brian Wilcox, Task Force Chair, Report of the APA Task Force
on Advertising and Children (Washington, DC: American Psychological
Association, February 20, 2004)
(http://www.apa.org/pi/cyf/advertisingandchildren.pdf)
Irwin Toy:
Supreme Court’s Analytical Methodology
•
•
•
Irwin Toy (1989) applied the Oakes test to determine if the law
1. pressing and substantial objective for the law or government action
2. The means chosen to achieve the objective must be proportional to the restriction of rights (here,
freedom of expression)
– i. The objective must be rationally connected to the limit on the Charter right.
– ii. The limit must minimally impair the Charter right
– iii. There should be an overall balance or proportionality between the benefits of the limit and its
deleterious effects.
IMPLICATIONS FOR FRANCE/EU
•
Could any national or EU court accept that any ad to children is already illegal as a type of misleading,
deceptive or unconscionable marketing practices ?
•
(Research and laws claiming ads for nutritious foods are OK (like the OfCom regulation) undermines this argument, rhetorically, but arguably not legally. Likewise,
the EU Directive 2005/29 (OJ 2005 L 149/22) is complemented by, not replaced by, Audio Visual and Media Services Directive 2010/13, Regulation 178/2002,
Regulation 1924/2006, or Regulation 1169/2011 which all pertain to information about food (AVMS recital 83, Article 4 authorizes stricter rules for Member
States, and recital 5 of EU 1925/2006 says details complement Directive 2005/29/EC.)
•
Article 9(1)e about alcohol marketing requiring it to be specifically marketing to children to be captured
by the limitation contains a lesson for kid-ad limits and may be ripe for legal challenge on the grounds
that the narrow scope of the limitation has the effect of completely undermining the purpose of the
protection
•
Article 9(1)g, in implying that it is ok to indirectly exhort consumption renders the protection against
direct exhortation meaningless and, in fact, the safeguards for children less protective than for adults.
Concerned Children’s Advertisers (now Long Live Kids)
formed within in 1989, same years as Supreme Court decision
Food:
• Nestlé Canada Inc.
• Pepsi-QTG Canada Inc.
• Coca-Cola Ltd.
• McDonald's Restaurants of Canada Limited
• Cadbury Adams Canada Inc.
• McCain Foods (Canada)
• Campbell Company of Canada
• Frito Lay Canada
• General Mills Canada Corporation
• Kellogg Canada Inc.
• Kraft Canada Inc.
• Unilever Canada
• Weston Bakeries Limited
Media:
• TELETOON Canada Inc.
• Buena Vista Home Entertainment (Disney)
• Corus Entertainment (YTV & Treehouse)
• CTV Television Inc.
• Global Television Network
Toys:
• Mattel Canada Inc.
• Mega Blocks Inc.
• Zenith Optimedia Canada
• Hasbro Canada Corporation
For Children's Healthy Active Living Program:
• Hershey Canada Inc.
• Canadian Sugar Institute
• Confectionery Mfrs Assn. of Canada
• Food and Consumer Products Canada
24
1981 Decima Quarterly survey of 1,500 Canadians:
Would you say you favour greater control over:
Advertising cigarettes and
other tobacco products?
•49%
Advertising which is
directed at children?
•59%
Cognitive vulnerability versus allowing anything but junk food
QUEBEC VS. BRITISH APPROACH
Question: Should we:
Prevent gate-crashing (advertisers
circumventing parents to reach kids)?
(Quebec approach)
-orskim only the worst junk food ads and
permit all other trickery?
(UK approach)
Measured Impact of UK, Quebec laws
(and the need to narrow loopholes)
Quebec Approach:
Dhar T and Baylis K, American Journal of Marketing. 2011
• Decrease in purchase
propensity by 13% per
week reduced fast-food
consumption by US $88
million per year
Quebec Approach
Bigger benefit from francophone kids
because leaking ads are in English media
• 4-fold as many TV food
ads were seen by
minority English
children in Quebec
compared to French
children
• Unclear how many ads
were examples of
border leaking, law
violations, and
regulatory loopholes
Quebec Approach:
Data on health impact of the ban is scarce and speculative, but see:
Sarah Carr, Overweight in Canadian Children, Mapping the Geographic Variation (M.Sc. Thesis), London School of Hygiene and
Tropical Medicine, 2004. Based on Data made available to the author from Refreshments Canada and Statistics Canada
(Catalogue 91-002, 91-210).
Figure 25: Soft Drink Consumption (1978-2000)
140
120
Consumption (Litres)
100
80
Canada
Quebec
60
40
20
0
1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000
Year
31
UK Approach:
Proportion of food ads for High Fat Sugar and Salt
down from 4/5 to 3/5
(http://stakeholders.ofcom.org.uk/binaries/research/tv-research/hfss-review-final.pdf )
UK Approach:
European Congress on Obesity Research,
Liverpool, May 2013
• The overall percentage of UK child-directed food
advertisements decreased slightly, from 13% in 2008 to
11.7% in 2010, and there was less advertising of both
core foods (25.5% to 19.1% of food advertising) and
noncore foods (64.2% to 57.6%).
• Increases took place, however, in the proportion of ads
promoting confectionery (8.8% to 10.7%), full-fat dairy
products (3.9% to 8.7%), and high-fiber/low-sugar
breakfast cereals (7% to 8%).
More disappointing news from the UK
(WHO Regional Office for Europe. Marketing of foods high in fat, salt and sugar to children: update 2012–2013. 2013
at 22 and 24. Available at: http://www.euro.who.int/__data/assets/pdf_file/0019/191125/e96859.pdf )
WHO-Europe:
• spending on HFSS ads
targeting children
declined 2008-2012 in
the UK, volume of
exposures to
advertising actually
rose during that period.
Scientific research
REASONS TO TREAT KIDS WITH KID
GLOVES
G. Hastings, et al.,
Review Of Research on the Effects of Food Promotion to Children, prepared for the UK Food Standards Authority,
(London: UK FSA, and Glasgow, Scotland: Centre for Social Marketing, University of Strathclyde, 2003), 19, 87-8, 138 at
http://www.food.gov.uk/multimedia/pdfs/foodpromotiontochildren1.pdf
•
Seminal systematic review of English literature on
advertising directed at children concluded:
–
foods marketed to children tend to be of
very low nutritional value;
–
that there is reasonably strong evidence of
that food promotion affects both brand
and category preferences, and evidence of
a strong effect of food promotion on
children’s purchasing and purchase-related
behaviour
–
at around age eight, children are just
“beginning to respond to advertising in a
more sophisticated way” and that
children’s ability to retrieve and process
information is still developing between
the ages of eight and twelve (pp. 35–36).
36
U.S. Institute of Medicine
And another systematic analysis of 123 eligible studies:
Inst. of Med. of the Nat’l Acads. of Sci., Food Marketing to Children and Youth: Threat or Opportunity (J.
Michael McGinnis et al. eds., 2006) . See the exec. summ. at http://www.nap.edu/execsumm_pdf/11514.pdf
–
–
Children begin to develop cognitive skills at age 8 to
ascertain commercial intent of advertising -passively until age 11 (or older?); little research on
children aged 12-18
Recommend federal legislation for TV and cable ads if
voluntary efforts to “shift away from high-calorie,
low-nutrient foods” are unsuccessful.
37
American Psychological Association
2004 Report of the APA Task Force on Advertising and Children,
(Brian Wilcox, Task Force Chair). Washington, DC: APA. On the World Wide Web at
http://www.apa.org/pi/cyf/advertisingandchildren.pdf
•
Children, because they are still maturing, have very poor
cognitive defences against commercial advertisements
(APA, 2004, pp. 6–7).
•
“the ability to recognize persuasive intent does not
develop for most children before 8 years of age.… Even
at that age … such capability tends to emerge in only
rudimentary form” (APA, 2004, p. 9).
•
“Further investigation is needed to establish the upper
age boundary of children who are uniquely vulnerable
to televised commercial persuasion as a function of
normative developmental limitations on their
information-processing capabilities...[T]he evidence
points directly to one fundamental concern: that
advertising targeting children below the ages of 7–8
years is inherently unfair because it capitalizes on
younger children's inability to attribute persuasive intent
to advertising. As a result of this limitation, children
below this age comprehend the information contained
in television commercials uncritically, accepting most
advertising claims and appeals as truthful, accurate, and
unbiased.
38
Legal conventions
REASONS TO TREAT KIDS WITH
KID GLOVES
Key, Relevant Canadian Federal Laws
Competition Act:
• subsection 9(1) of the
Act, itself, requires
citizens to be at least 18
years old to petition for
an investigation of
misleading/deceptive
advertising.
Evidence Act:
• s. 16 creates a
presumption that
children under the age
of fourteen are not
reliable witnesses
• See also the Supreme
Court of Canada ruling
in Kendall v. The Queen
(1962).
Age of Majority and Accountability Act,
(Ontario) R.S.O. 1990, c. A.7
• the age of majority is 18 (down from 21,
generally, in common law)
• Like EU member states, five of the other nine
other provinces define adult at least 19 years
old
• United Nations International Convention on
the Rights of the Child = 18
• minors may enter into binding (enforceable)
contracts for the “necessities of life”
General Common Law
(Attorney General of Québec v. Irwin Toy, 1989, p. 990).
The Supreme Court of Canada, in Irwin Toy,
summarized the unique status of children in
the common law as follows:
– “viz. to protect a group that is most vulnerable to
commercial manipulation … [is] reflected in
general contract doctrine.… Children are not as
equipped as adults to evaluate the persuasive
force of advertising and advertisements directed
at children would take advantage of this”
Justice for Children and Youth
survey of Ontario and federal laws
(http://www.jfcy.org/PDFs/AgeBasedLawsJune2012.pdf )
• Of nearly 70 age-delimited legal milestones
(rights and responsibilities), only 3 vest in
children under age 12:
– the statutory right then duty to attend school
from age 4 (or 5) then 6, respectively,
– the authority to withhold consent to be adopted
at age 7
(ONTARIO)
Relevant provincial limits on misleading, deceptive
advertising analogous to the federal Competition Act
Consumer Protection Act, S.O. 2002, C. 30
False, misleading or deceptive representation
14. (1) It is an unfair practice for a person to make a false, misleading or deceptive
representation.
Unconscionable representation
15. (1) It is an unfair practice to make an unconscionable representation. 2002, c. 30, Sched. A,
s. 15 (1).
Unfair practices prohibited
17. (1) No person shall engage in an unfair practice. 2002, c. 30, Sched. A, s. 17 (1).
Compare: to DIRECTIVE 2005/29/EC definition of an unfair practice:
• Article 5: “it…is likely to materially distort the economic behaviour with
regard to the product of the average consumer…to whom it is
addressed...”
• Article 6: 1. A commercial practice shall be regarded as misleading if it…in
any way…is likely to deceive the average consumer, even if the
information is factually correct, and …is likely to cause him to take a
transactional decision that he would not have taken otherwise…
Lessons learned from
Canadian provincial appeal court rulings on
“misleading advertising”
• ads targeting children must consider “misleading” from the
“objective” (not “subjective”) viewpoint of the ad’s
intended target (i.e., not just by applying an adult’s logical
literal analysis of claims), and
• as interpreted by persons of “average” abilities
appropriate to the circumstances (not by well-informed or
sophisticated persons) (R. v. Cunningham Drug Stores,
1973; R. v. Imperial Tobacco, 1971; R. v. International
Vacations, 1980, p. 284; and R. v. Suntours Ltd., 1974, p.
181).
• THEREFORE To respect these appeal court rulings, it seems
plain that courts should consider developmental
psychology research demonstrating the unique
vulnerability of children to commercial advertising.
• In an effort to foil an effort to unionize
employees, McDonald’s once argued that
people lack of legal capacity to enter contracts
(like contracts for the sale of food) should
undermine the capacity of some of its teenage
employees to sign hold union cards
(Wilson J, Wilson on Children and the Law, § 5.39, 3d ed. 1994).
Jeffery B. The Supreme Court of Canada's Appraisal of the 1980 Ban of Advertising to Children in Quebec:
Implications for "Misleading" Advertising Elsewhere.” 39 Loyola of Los Angeles Law Review 237-276 (2006).
http://www.ftc.gov/os/comments/foodmktgtokids-pra/526194-00009.pdf
Questions about food ad limits?
• Does the set of products and places advertised to children look different
or almost the same a nutrient-based ad limit?
• Will advertisements for Diet Coke still increase consumption of all soft
drinks? (Recall the analogy to research on tobacco advertising showing
that brand advertising increased consumption of tobacco overall, not just
brand-shifting and similar findings for food by UK-Hastings and USInstitute of Medicine reviews.)
• Will there ever commercial advertisements for tap water, fruits and
vegetables at levels that correspond to the extent than they should be ?
• Are general principles of good nutrition as applied to 100,000 different
foods defensible in court on a food-by-food basis? How many losses
would put a nutrition scheme into disrepute? (Is cheese a healthy dairy
product? Fruit juice? Is candy healthier than dried fruit? Where is WHO
guidance on specifics of nutrient profiling? Nuts ok to advertise to
children? Fortified bread with added fibre as good as whole grain?)
• Will complex nutrient criteria always be in flux, always be hard to detect
violations?
Some examples
PERMEABILITY OF A NUTRIENTBASED AD RESTRICTION
Nutrient-Based Ad Ban, can restrict…
Ads for junk food
Ads for sugar-sweetened drinks

Nutrient-Based Ad Ban,
Can restrict ads for junk food
But NOT the places they are sold
BUT NUTRIENT-BASED ADS CAN’T
STOP…
Ads for logos and restaurant places:
Nutrient-Based Ad Ban, canNOT restrict
Logos or images associated with kids restaurant meals
Applying nutrient criteria to Tim Hortons
(Canada’s largest restaurant chain) current ads
Devoted enforcement authorities
MAY be able to restrict these ads:
But NOT restrict these (hockey
cards, etc.):
Nutrient-Based Ad Ban, canNOT restrict
toy promotions for McDonald's, and
hockey cards at Tim Horton’s (a much larger chain that sells donuts, etc.)
After a nutrient-based ad ban
soft drink ads may look nearly the same
Can restrict these ads:
But canNOT restrict these:
Applying a nutrient criteria,
an enforcement authority…
May be able to restrict these ads:
But maybe canNOT restrict these:
Nutrient-Based Ad Ban
(See the difference?)
Can restrict these logos:
But canNOT restrict these:
Nutrient-Based Ad Ban, canNOT restrict…
Logos of soft drinks manufacturers
that has even one relatively nutritious version
Nutrient-Based Ad Ban, canNOT restrict…
Logos if restaurants sell at least one nutritious food/meal
Coca-Cola® advertising
actually helped shape this modernday image of Santa, but defines
“child audience” so narrowly, it says
it does not market to children.
•
•
All our products are wholesome and
suitable for all consumers. At the same
time, we understand that children are
impressionable, and we respect the role
of parents and caregivers in raising
children. Therefore, we are committed
not to directly market messages for
any of our beverages to children under
12.
We have historically not placed – and
continue the practice today of not
placing – advertising for any of our
beverages on any media that is
primarily directed to, and has an
audience of 50% or more, children
under the age of 12.
Nutrient-Based Ad Ban, maybe cannot
even restrict:
The evidence
PERMEABILITY OF A NUTRIENTBASED AD RESTRICTION
Dec 2012 US Federal Trade
Commission f/u report
ENORMOUS loopholes in nutrient-based ad limits could
be exploited by at least 46% of these products/places
(e.g., w/ brand promos , ads for diet drink, or restaurant venue/trophy foods)
ENORMOUS loopholes in nutrient-based ad limits
could be exploited by 62% of these products/places
(e.g., w/ brand promos , ads for diet drink, or restaurant venue/trophy foods)
Room for improvement not giving-up.
NEXT STEPS FOR CANADA, QUEBEC
A loophole: McDonald’s Ad: Ontario
(Courtesy of Dr. Monique Potvin, University of Ottawa)
McDonald’s Advertisement- Quebec (French)
(Courtesy of Dr. Monique Potvin, University of Ottawa)
Improvements such as:
• Recognize that cross-border leakage of ads is the exception, not
the rule, but partly undermine the health of Quebec children by
weak U.S. and Ontario laws and industry practices: In Quebec in
2006, 89% of time was spent watching TV on Quebec-based
channels (Statistics Canada (2006). Television Viewing: Data Tables. No. 87F0006XIE.)
• Raise the Quebec age of protection from 13 to 16 or, more
consistently with legal conventions, to 18: (U.N. Convention on the Rights of the Child,
United Nations Convention on the Rights of the Child. Adopted and opened for signature, ratification and accession by General
Assembly resolution 44/25 of 20 November 1989. Available at:
http://www.canadiancrc.com/UN_CRC/UN_Convention_on_the_Rights_of_the_Child.aspx ) and
Age of Majority and Accountability Act, (Ontario) R.S.O. 1990, c. A.7
• Revisit Quebec regulatory loopholes: Like whether coffee/salad
ads during Saturday a.m. cartoons actually do excite the interests of
children.
• Food label ads require federal government attention: Practical,
probably constitutional obstacles impede, e.g., Froot Loop box
enticements.
Questions for Champions of Public
Health in the EU and France?
1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
Is advertising to children already illegal (because it is inherently misleading, deceptive) subject
only to enforcement?
Should national and EU governments codify a rule of interpretation for courts clarifying that
misleading/deceiving children is illegal?
Which countries have political will to change national/EU law (France, Sweden?)
Should national government do so first (e.g., at children’s festivals, cinemas, billboards,
newspaper & magazines not covered by AVMS Directive, magazines catering to unique EU
languages) as part of long-term campaign to reform EU standards (e.g., EU Directive on AVMS)
Can Member State innovation become a laboratory for innovation and later an engine of public
health (as with U.S.A. state/local menu labelling laws and Codex food labelling standards)?
Is certainty of success against aggrieved food, toy or media companies in the courts necessary
for France or other opinion leaders to have the courage to protect children
Is protecting children only against junk food ads a free pass for companies promoting sedentary
play?
Are cable TV, satellite TV and magazines claiming the right to advertise to children also earning
revenue from subscription fees?
Will Codex consider standards for marketing food to children at initiative of EU/France/Sweden in
coming years? (In scope of Codex authority)
Are children being treated at more savvy than viewers of religious television programs? (Article
20, Para. 1), general prohibition on product placements and
Support from public opinion, Supreme Court, 3
expert reviews not a radical view, but if your
business model depends on tricking children…
The Economist, Dec 2013
“ Cookie Monster Crumbles”
YTV ad promoting its audience to
advertisers in “Marketing Magazine”
A conservative MP on media literacy for children
(Oct 19, 2006, House of Commons Standing Committee on Health)
•
Asking a young child to see through
that with their x-ray eyes, to see that
they're being targeted, is sort of like
child-proofing your kid on the street.
Rather than get the bad guys off the
street, we'll just teach kids how to
recognize the good guys and the bad
guys.
•
I have to say that I'm a little bit
cynical about that kind of approach.
Obviously there is a role here, and
what we're doing doesn't seem to be
effective.
What could be worse than a
Coke school sign for a school in South Africa?
(photo courtesy of Brian Cook)
…skyline, United Nations Headquarters,
Manhattan, NYC
Contact info:
Bill Jeffery
Centre for Science in the Public Interest
Suite 2701, CTTC Bldg.
1125 Colonel By Drive
Ottawa, Ontario K1S 5R1
[email protected]
Tel.: 613-244-7337
www.cspinet.ca/
79
Possible Legal Barriers to
Cross-Border Advertising
•
•
•
Interpretation of current law (or legislation) protecting children from deception
Possible future framework convention (like FCTC) with status of binding
international law or at least enough authoritative stature to resolve WTO or other
bilateral/multilateral trade/investment disputes
Jurisdiction of Codex to set standards on food advertising is clear as established
by a chronology of decisions by Commission/Committees, conclusions by WHO
and FAO, and legal opinion of FAO. (see: 2006 Discussion Paper on Advertising,
CX/FL 06/34/10 ) (for food) Codex Alimentarius Commission standards definition
adopted at step 8 in 2008 this definition (against initial objections of US, Japan,
Mexico, and International Chamber of Commerce, et al.):
– “Advertising means any commercial communication to the public, by any means other than
labelling, in order to promote directly or indirectly, the sale or intake of a food through the use
of nutrition and health claims in relation to the food and its ingredients.” (N11-2006;
ALINORM 08/31/22 APPENDIX V)
•
In 2007 at CCFL: “Delegation of Nepal raised the issue of marketing and
advertising food products to children and young people by including items “gifts”
unrelated to the food (e.g. toys), and felt that advertising should in all cases be
related to the quality or quantity of the product.”

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