Monday, July 24, 2017

Guest Post: A Lawyer Weighs In On Canada's Proposed Kid Ad Ban

Early last week there was a surprising piece in Blacklock's Reporter that suggested that Canada may be reconsidering its plans to ban the advertising of junk food to children (an election piece of Prime Minister Trudeau's and part of Health Minister Philpott's mandate letter). After seeing it, I contacted Canadian public health lawyer Jacob Shelley and asked him if he'd be so kind as to share his legal thoughts. He kindly agreed.
Restricting food and beverage marketing to children has long been identified as a necessary public health strategy to reduce diet-related chronic diseases, including obesity. It is a strategy endorsed by the World Health Organization and has been the focus of the Stop Marketing to Kids Coalition in Canada over the past few years (the Coalition has called for the implementation of its Ottawa Principles, which bans food advertising to youth and children under 16). Not surprisingly, there was considerable excitement in the public health community when Prime Minister Justin Trudeau identified “introducing new restrictions on the commercial marketing of unhealthy food and beverages to children, similar to those now in place in Quebec” as a top priority for protecting public health in his Minister of Health Mandate Letter.

Québec’s Consumer Protection Act prohibits, with some exceptions, all commercial advertising to children under thirteen years of age (s. 248). In 1989 the Supreme Court of Canada upheld the Québec ban as a constitutionally valid limitation on the freedom of expression, protected by section 2(b) of the Charter of Rights and Freedoms in the seminal case of Irwin Toy v Québec.

In Canada, expression is considered a “fundamental freedom”, and because of its importance, the courts have consistently held that section 2(b) requires a large and liberal interpretation. Commercial speech, which includes advertising, is among the types of expression that the Charter seeks to protect. The courts have held that commercial expression serves an important public interest, one that goes beyond its economic value, because it allows consumers to make informed choices. Even so, the government can impose restrictions on expression. A limitation on the freedom of expression can be justified if the government is able to demonstrate that it is reasonable, an assessment based on the Oakes test.

This is what occurred in Irwin Toy, where a majority of the Supreme Court found that the Québec ban was justified, even though it infringed on the freedom of expression. The Court was particularly concerned about the vulnerability of children to advertising. It held: “the evidence sustains the reasonableness of the legislature's conclusion that a ban on commercial advertising directed to children was the minimal impairment of free expression consistent with the pressing and substantial goal of protecting children against manipulation through such advertising.”

Since Irwin Toy, the Supreme Court has upheld other bans on commercial speech, most notably, commercial speech related to tobacco products. In Canada v JTI-MacDonald, the Court unanimously held that the restrictions placed on tobacco advertising and marketing were justified restrictions on the freedom of speech. Of particular note, the Court held, “when commercial expression is used for the purpose of inducing people to engage in harmful and addictive behaviour, its value becomes tenuous” (para 47).

Through Irwin Toy and JTI-MacDonald, the Canadian jurisprudence clearly establishes that (i) children are vulnerable and need to be protected from manipulative advertising and (ii) commercial expression that induces harmful behaviour(s) has tenuous value. It would seem apparent, then, that restricting advertising to unhealthy food products to children – the strategy the government appears to have adopted – is relatively low-hanging fruit. After all, the government could do more, as Irwin Toy involved restricting all advertising directed to children. While there may be some details to iron out – such as what age should the ban use and determining what constitutes unhealthy foods – the overall strategy seems to be in accordance with Canadian law.

Thus it was surprising to read that Health Canada may be backing away from meaningful restrictions on food advertising to children out of fear of industry lawsuits (note: this has not been confirmed or reported elsewhere).

UPDATE: Health Canada was kind enough to tweet a response after this article was posted. What is there to be afraid of, exactly? Certainly industry lawsuits were expected the moment PM Trudeau penned his mandate letter. It would be unrealistic to expect the food industry to accept any governmental oversight of advertising to children – kids are big business, after all, and restricting food advertising to children will have a discernable impact on the industry’s bottom line. The industry is not interested in any regulation.

To avoid regulatory interference, the industry has created its own self-regulatory framework that it frequently touts. It includes the Broadcast Code for Advertising to Children and the Canadian Children’s Food & Beverage Advertising Initiative (this is in addition to individual corporate promises). Such frameworks are often considered to be largely ineffective, lacking transparency and accountability. Recent research suggests that advertising of unhealthy foods to children has increased in recent years. Self-regulation, simply put, isn’t working.

If the industry does initiate a lawsuit, we can be sure that it will cloak its claim in Charter language, but this should not be mistaken as interest in protecting Canadian’s freedom of expression. Rather, it seeks an unbridled free market, one that allows it to continue to target vulnerable children in order to increase profits.

When PM Trudeau announced Canada would impose restrictions on the marketing of unhealthy foods and beverages to children, the world noticed. Canada now has the opportunity to become a global leader when it comes to restricting marketing to kids. It would be a shame if the fear of industry push-back impeded current efforts, especially when the courts have already made it abundantly clear that children are more important than commercial expression.

Have your say: Health Canada is currently seeking feedback on its approach to restricting marketing unhealthy food and beverages to children, and you can do so by visiting here.

Jacob Shelley is an Assistant Professor with the Faculty of Law and the School of Health Studies in the Faculty of Health Sciences at Western University. His primary area of research is the role of law in promoting public health and preventing chronic disease, with a focus on diet-related chronic diseases. Follow him on Twitter here.

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