New Restrictions on Advertising Food and Drinks to Children

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.

For more information, please contact:

Laura Weinrib             +1-416-863-2765
Pei Li                            +1-416-863-4265
Lindsay Toth               +1-416-863-2912

Or any member of our Marketing & Advertising, Misleading Advertising and Misleading Advertising & Promotion groups.