advertising targeting children in quebec: a legal framework and public health policy

Advertising Targeting Children in Quebec: A Legal Framework and Public Health PolicyÈve Bédard, Content and Business Case Development Coordinator Quebec Coalition on Weight-Related Problems

February 5, 2009 alPHa Winter Semi-Annual Meeting: Food and Beverage Advertising to Children Eve Bedard, Quebec Coalition on Weight-Related Problems

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The Legal Prohibition of Advertising Targeting Children

Since 1980, the Consumer Protection Act includes legislation to protect children with regard to advertising

– “Office de la protection du consommateur” (OPC)– Consumer Protection Act, sections 248 and 249– Regulation Respecting its Application sections 87 @ 91– Interpretation Guide lines (1980)


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Nature of the Ad Ban

Commercial advertising directed at persons under thirteen years of age.

The Coalition’s interest : Junk Food Ad Ban


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Historic Background

This legislation has been adopted following the public debate that took place in the 1970s, both in Canada and the United States, with regard to child advertising.


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Historic Background

An imposing Quebec coalition had then been formed by key players of various sectors (education, healthcare, trade-union, consumer affairs, economical) in order to claim the prohibition of any type of advertising aimed at children.


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The Legislation

Section 248 of the Consumer Protection Act poses the General Principle

Advertising for persons under 13Subject to what is provided in the regulations, no person may make use of commercial advertising directed at persons under thirteen years of age.


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The Legislation: the Intent Criteria

Section 249 CPA : The Criteria of intent

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.


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The General Principle of Section 248 CPA

To determine whether or not an advertisement is aimed at by Section 248 CPA, one must understand and consider each of the elements composing the prohibition:

Subject to what is provided in the regulations1. no person may2. make use of […] advertising3. commercial 4. directed at persons under thirteen years of age


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1. No Person May…


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2. "make use of […] advertising"

Section 252 CPA“to advertise” or “to make use of advertising”

For the purposes of sections 231, 246, 247, 247.1, 248 and 250, “to advertise or “to make use of advertising” means to prepare, utilize, distribute, publish or broadcast an advertisement, or to cause it to be distributed, published or broadcast.

Section 1 h)“advertisement” means a message designed to promote

goods, services or an organization in Québec;


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3. "commercial"

The prohibited advertising is any advertising with a commercial purpose

Educational or societal advertising is therefore authorized under certain conditions:

Examples : Public health advertising campaign promoting

a healthy lifestyle Advertising campaign related to security


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4. “directed at persons under thirteen years of age”:

criteria of Section 249 CPA 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.


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The Implementation Guide for Sections 248 and 249 CPA: an essential interpretation tool for the analysis of the criteria

A NEW ONE IS COMING…


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(a) the nature and intended purpose of the goods advertised To verify the implementation of this criteria, it should

be determined if this product is: A product exclusively directed at children and that has a distinctive

appeal for them (toys, certain foods, certain candy)

A product not exclusively directed at children but with a distinctive appeal for them (fast food meals, certain foods such as certain cakes, desserts)

A product without any appeal for children, a product directed at adults or teenagers (financial products, alcoholic beverages, certain clothes)

Source: Office de la protection du consommateur (1980) reprinted in 1996 (free translation)


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(b) the manner of presenting such advertisement To verify the implementation of this criteria, it should be

determined if the creation and presentation of the advertisement are infantile. Certain elements must be considered, such as the use of: Appealing music Characters, animations Themes Children’s voices Sounds, colours, calligraphy or graphic design that attract

children’s attention The presentation is also assessed through the general

impression given by the advertisement

Source: Office de la protection du consommateur (1980) reprinted in 1996 (free translation)


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(b) the manner of presenting such advertisement…the general impression given by the message (s. 216 and 218 CPA) Making use of commercial advertising directed at persons

under 13 years of age is a prohibited practice To determine if a representation (an affirmation, a

behaviour or an omission) constitutes a prohibited practice, the general impression it gives, and, as the case may be, the literal meaning of the terms used therein must be taken into account (Sections 216 and 218 CPA)

The analysis of the criteria in Section 249 CPA will also be made through the advertisement’s general impression


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(c) the time and place it is shown

For the advertisement broadcast on television, the type of program and the portion of the audience that is under thirteen years old will be considered: Children’s programming Programming that children are interested in and with an

audience composed of:- Over 15% of children,- Between 5% and 15% are children- Less than 5%

For advertisements broadcast in other places, the children’s rate of attendance


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Nature of the product:

without any appeal for children

with a distinctive appeal for children

exlclusively directed at children

Definitions

TV Time and Place

Products directed at adults and teenagers

Products directed at families/all age groups

Products directed at children and offering a distinctive appeal for them

Program for children (audience composed of over 15% of children)

AUTHORIZED If presentation not likely to be interesting for children

NOT AUTHORIZED Except if presentation not likely to be interesting for children

NOT AUTHORIZED

Program with an audience composed of 5% to 15% of children


AUTHORIZEDIf adv. not specifically created to attract the child’s attention

AUTHORIZED If adv. not specifically created to attract the child’s attention

Program with an audience composed of less than 5% of children





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An advertisement directed at persons older than 13 may be an advertisement directed at children

Section 249 al. 2 CPA PresumptionThe fact that such advertisement may be contained in

printed matter intended for persons thirteen years of age and over or intended both for persons under thirteen years of age and for persons thirteen years of age and over,

or that it may be broadcast during air time intended for persons thirteen years of age and over or intended both for persons under thirteen years of age and for persons thirteen years of age and over

does not create a presumption that it is not directed at persons under thirteen years of age.

The Presumption…


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There are exceptions…

The exemptions stated in the Implementation Regulation of the CPA

For example: An advertisement in a magazine directed at children sold and

published at least every three months A message aimed at announcing a show targeting children An advertisement including a storefront, display, container,

packaging or label


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These advertisements may not, particularly: Promote medication or vitamins Represent a dangerous behaviour or use Suggest that owning a product will provide a psychological

or physical benefit for the child, with regard to other children of his age

The exceptions must respect the regulation s.91 ethical standards


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Irwin Toy: The Supreme Court of Canada confirms the constitutional validity and relevance of Sections 248 and 249 CPA Sections 248 and 249 set a reasonable limit to freedom of expression and are

justified in accordance with the first section of the Canadian Charter of Rights and Freedoms and with Section 9.1 of the Quebec Charter of Human Rights and Freedoms

“…In our view, the Attorney General of Quebec has demonstrated that the concern which prompted the enactment of the impugned legislation is pressing and substantial and that the purpose of the legislation is one of great importance. The concern is for the protection of a group which is particularly vulnerable to the techniques of seduction and manipulation abundant in advertising.” “… the concerns which have motivated both legislative and voluntary regulation in this area are the particular susceptibility of young children to media manipulation, their inability to differentiate between reality and fiction and to grasp the persuasive intention behind the message, and the secondary effects of exterior influences on the family and parental authority…”


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The Quebec legislation prohibiting advertising directed at children: a quoted and envied model In 2004, the World Health Organization conducted a study

about the rules that govern the advertising of foods created for children: "Marketing Food to Children: the Global Regulatory Environment" 62 countries oversee television advertising directed at children 3 states prohibit all types of television advertising directed at children

(Norway, Sweden, and Quebec)

In 2008, the WHO, various governments, and consumer protection organizations such as Consumers International are deploying important research and awareness efforts with regard to the issue of advertising targeting children

Source: Office de la protection du consommateur “La publicité destinée aux enfants au Québec: interprétation et application du cadre juridique actuel” Nov. 20 2008, Journées annuelles de santé publique.http://www.inspq.qc.ca/aspx/docs/jasp/presentations/2008/11_10_Nathalie_Jackson.pdf


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Obesity Trends* Among U.S. AdultsBRFSS, 1990

(*BMI ≥30, or ~ 30 lbs overweight for 5’ 4” person)

No Data <10% 10%–14%


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(*BMI ≥30, or ~ 30 lbs overweight for 5’ 4” person)

No Data <10% 10%–14% 15%–19%


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No Data <10% 10%–14% 15%–19%


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No Data <10% 10%–14% 15%–19%


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No Data <10% 10%–14% 15%–19%


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No Data <10% 10%–14% 15%–19%


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No Data <10% 10%–14% 15%–19%


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No Data <10% 10%–14% 15%–19% ≥20%


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No Data <10% 10%–14% 15%–19% ≥20%


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No Data <10% 10%–14% 15%–19% ≥20%


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No Data <10% 10%–14% 15%–19% ≥20%


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No Data <10% 10%–14% 15%–19% 20%–24% ≥25%


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No Data <10% 10%–14% 15%–19% 20%–24% ≥25%


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No Data <10% 10%–14% 15%–19% 20%–24% ≥25%


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No Data <10% 10%–14% 15%–19% 20%–24% ≥25%


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No Data <10% 10%–14% 15%–19% 20%–24% 25%–29% ≥30%


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No Data <10% 10%–14% 15%–19% 20%–24% 25%–29% ≥30%


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1995

Obesity Trends* Among U.S. AdultsBRFSS, 1990, 1995, 2006

2006

1990

No Data <10% 10%–14% 15%–19% 20%–24% 25%–29% ≥30%


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The Coalition’s misson

Created in 2006, the Quebec Coalition on Weight-Related Problems, is working toward the adoption of specific public policies with regard to weight related issues. It acts within three strategic areas (agri-food industry, sociocultural, and built environment) to foster the development of environments that help in making healthy choices and preventing weight related issues.


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Weight-Related problems and Junk Ad Ban to children

Part of a public health problem

Part of a framework for action to create Supportive Manmade, Agri-Food and Socio-Cultural Environments


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Changing the socio-cultural sector

The Ad Ban is Part of a healthy public policy


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Some Facts…SOURCE: OPC, “Your kids and Ads” (2009)


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The Coalition’s Role in the Junk Food Ad Ban

Since 2007, the Coalition gave itself the mission of continually monitoring the food industry.


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IGOR muffins Marketing Campaign in Quebec daycares


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IGOR muffins Marketing Campaign in Quebec daycares

To promote its new product, the Igor cake, Saputo Groupe Boulangerie had introduced promotional items (CDs, posters, stickers, Igor cakes and discount coupons) in over 230 childcare centres in Quebec early in the year 2007 .

The Coalition and the “Union des consommateurs” then publicly denounced this practice and asked the OPC to put an end to this promotion campaign and bring charges against Saputo.

Saputo was accused of violating Section 248 of the Consumer Protection Act which prohibits commercial advertising directed at children under 13 years of age.

On January 26, 2009, Saputo recorded a guilty plea to twenty-two of the thirty counts of illegal commercial child advertising against it.


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Press Clips

“The junk food wars: Quebec scores sweet victory in battle against childhood obesity”, Graeme Hamilton, National Post, A3, 27 janvier 2009

“Snack-cake baker fined for targeting youngsters”, Andrew Chung, Toronto Star, A2, 27 janvier 2009


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Pending cases

General Mill’s—Lucky Charms Burger King Mc Donald’s


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Pending Cases

General Mill’s – Lucky Charms


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Burger King


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2007 Quebec Survey on Marketing to Children

Most of the Quebec adult population (74%) thinks that children are “very often” (25%) or “often” (49%) exposed to advertising specifically targeting children.

Nine out of ten Quebecers (88%) think that it is necessary to specifically control advertising targeting children.

Most of the respondents (91%) think that the Consumer Protection Act banning advertising targeting children under 13 should be enforced “more severely” (60%) or “as severely” (31%).

advertising targeting children in quebec: a legal framework and public health policy

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