Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 27 - Evidence - June 15, 2017
OTTAWA, Thursday, June 15, 2017
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill S-228, An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children) met this day at 10:30 a.m. to continue its study of the bill.
Senator Kelvin Kenneth Ogilvie (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Committee on Social Affairs, Science and Technology.
[English]
I am Kelvin Ogilvie from Nova Scotia, and I am chair of the committee. I'm going to ask my colleagues to introduce themselves, starting on my right.
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
[Translation]
Senator Cormier: René Cormier from New Brunswick.
Senator Petitclerc: Chantal Petitclerc from Quebec.
[English]
Senator Dean: Tony Dean, Ontario.
Senator Eggleton: Art Eggleton from Toronto, and deputy chair of the committee.
Senator Seidman: Judith Seidman, Montreal, Quebec.
The Chair: Colleagues, thank you very much. I will remind us all that we are here today to discuss Bill S-228, An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children).
We have three sets of witnesses today, and my understanding is that we will start with Restaurants Canada, and we have from them Joyce Reynolds, Executive Vice President, Government Affairs, and David Lefebvre, Vice President, Federal & Quebec.
I understand you will be splitting your time. Please go ahead.
Joyce Reynolds, Executive Vice President, Government Affairs, Restaurants Canada: I appreciate the opportunity to be here this afternoon on behalf of Canada's $80-billion restaurant industry. This industry is a vital part of our country's economy. Canadians operate restaurants in every corner of the country, from large metropolitan centres to remote communities. We are the fourth largest private-sector employer in Canada, with more than 1.2 million employees that are directly employed by the industry and another 286,000 who indirectly support the industry as our partners. We are most proud to be the number one first-time provider of jobs in this country. We open the door to opportunity for young people, new Canadians and those facing barriers to employment.
More than two thirds of Canada's 95,000 restaurants, cafeterias, coffee shops and bars are locally owned and operated by independent entrepreneurs.
Restaurants are very engaged in their communities and typically are the first businesses to be tapped for gift certificates, donations and assistance with local events and charities. Despite the industry's razor-thin margins, our industry's charitable giving is around $300 million annually.
We are very grateful to be consulted on Bill S-228. We believe that industry can play an important role in identifying some of the unintended consequences of this all-encompassing bill. We understand and appreciate the intent of the bill, but believe in its current form it goes beyond the intent and will unfairly curtail the ability of restaurants to communicate with their adult customers and to market their products and services to any audience in Canada.
We are also concerned about the potential impact of this bill on charities, sporting events and community activities across the country.
We are also worried about how restrictions on packaging and labelling will impact in-restaurant communications.
We are particularly concerned by the amendment to broaden the definition of "child'' to include teenagers and young adults. This is a fundamental change to the bill.
It's possible to isolate child-directed programming for marketing restrictions, but the current proposed change would rule out almost all remaining programming. Teenagers typically watch the same sporting events, sitcoms, dramas, comedies and so forth that their parents watch.
Fourteen to seventeen is the age when teenagers are seeking their first job, many gaining valuable workplace experience in restaurants. How can they, on the one hand, be old enough to learn about the preparation and selling of food on the job, but, on the other hand, not be old enough to be exposed to the same food products when not on the job?
In today's media-saturated world where there are no borders, it makes sense to give children and teens the tools they need to be responsible, discerning and media-wise when they are exposed to advertising during adult-oriented programs.
Second, I would like to speak to clause 7.5 of the bill regarding prohibited sales promotions. Food service companies spend millions of dollars a year on activity-based sponsorships and promotions to help Canadians be more active and expend calories. This happens both nationally and in virtually every community in Canada. It includes family-owned businesses supporting minor league sports teams and sporting activities such as hockey, soccer, baseball, basketball, lacrosse, football, skating, swimming, curling, cycling, golf, ballet, tennis, running — the list goes on.
An example everyone would be familiar with is the Timbits Minor Sports Program. This program supported more than 345,000 children playing minor sports last year. As noted earlier, restaurants are often the first to be tapped to sponsor events such as fun runs and triathlons. Parents who depend on the funding from sponsorships to register their kids for sporting activities will be frustrated and disappointed by what could be captured in this bill.
Other considerations in the bill could include charitable donations to organizations such as Heart & Stroke, Special Olympics, Boys and Girls Clubs, Kiwanis, healthy-eating workshops, learn-to-cook programs and charities supporting families with a severely ill child and summer camps for needy kids.
For example, McHappy Day has raised over $67 million to date for Ronald McDonald House Charities Canada and children's charities across the country through donations such as one dollar from the sale of a Happy Meal, Big Mac or Hot McCafe beverage on McHappy Day, including $5.6 million raised this year on McHappy Day 2017. The contribution of 10 cents from the sale of every Happy Meal to Ronald McDonald House Charities Canada has created a sustainable revenue source for these respected charities.
Similarly, in 2016, the Tim Hortons Children's Foundation provided camp experiences to more than 19,000 children and youth at no cost to their families. Camp Day raised over $13 million last year.
Prohibiting these sponsorships and promotions would result in a significant void for parents and their families, and we hope that they will be dealt with appropriately in regulations.
We are also concerned that the sweeping language in the bill could impact what can be communicated to customers in restaurants. Unlike in a retail environment, the packaging on food items cannot be seen until post-purchase. Menus and menu boards are the primary means to communicate what options are available for customers to order and are designed to sell menu items in a timely fashion. Many restaurants offer smaller portion meals for kids at a reduced price. This legislation could be interpreted as prohibiting kids' meals so that parents would have no choice but to order adult-sized portions for their children.
David will take over at this point.
[Translation]
David Lefebvre, Vice President, Federal and Quebec, Restaurants Canada: Finally, a brief comment on the value of advertising that could be lost. We know that Canadian broadcasters and print publishers are all faced with declining revenue and are competing for a smaller pool of advertisers. Far-reaching legislation that will prohibit food companies from marketing their products could have serious economic ramifications for them. We urge you to include an economic impact analysis as you study this bill.
In closing, Restaurants Canada would like to thank you for your time and for hearing our comments on such a crucial matter. As you can see we are not opposed to the intent of Bill S-228 as initially drafted, but we want to make you aware of some important unintended consequences of this legislation.
Our industry prides itself in serving 18 million Canadians every day and being the gathering place for families and friends on special occasions. We also want to continue playing a major role in communities by supporting worthy initiatives and giving back to the people who are the social fabric of Canada's neighbourhoods. We believe that our role in society is more than serving food and drinks. Every day, our actions demonstrate that we are ready to be good corporate citizens and get involved. We hope that we can continue to play these roles. Thank you.
[English]
The Chair: Thank you very much.
Colleagues, the witnesses have brought copies of their presentations, but they're only in one language. If you wish a copy, you have to request it. It will be delivered to you, but you need to request it. We can't automatically hand it out in one language.
I will invite Jim Goetz, President, Canadian Beverage Association to make his presentation.
Jim Goetz, President, Canadian Beverage Association: Thank you, Mr. Chair and committee members. First, I will like to express my gratitude for the opportunity to speak today. My name is Jim Goetz and I am president of the Canadian Beverage Association.
We represent more than 60 brands of non-alcoholic, non-dairy beverages manufactured and distributed by Canadians from coast to coast to coast. Our diverse product lines include 100 per cent juice, bottled waters, soft drinks, iced teas, coconut water and everything in between.
Our industry employs 60,000 Canadians in more than 200 facilities across the country. That's 60,000 families, 60,000 active members of communities across Canada, and 60,000 people living in this country who care deeply about their health and the health of their children.
I want to make it clear that we share the same aspirations for better health outcomes for Canadians of all ages, particularly our young people. We want to see lower rates of obesity, far fewer incidences of diabetes, and better education about healthy choices and balanced diets.
CBA members dedicate countless volunteer hours and funds toward local initiatives in the communities in which we operate. Supporting the United Way, Special Olympics, ParticipACTION, Breakfast Club of Canada, and Let's Play are just some of the ways we give back to our communities.
Recently, several organizations have called into question the practices of the food and beverage industry in marketing and advertising our products. As the national representative of Canada's non-alcoholic beverage sector, we understand that children do make up a portion of the Canadians that will consume our products, as well as other food products, but the inference that we are somehow working to sway Canadians into making the wrong decisions for balanced, healthy diets suggests motivations that run counter to everything we're about. Yes, we are marketing and advertising in an increasingly competitive landscape for beverages, but we are consistently upholding marketing and advertising standards set by ourselves and other organizations.
The Canadian Beverage Association members take pride in providing useful tools to help Canadians make informed decisions for themselves and their families. Our industry has been at the forefront of leading voluntary initiatives to provide parents with more control as the decision-makers in their households so they can play a more active role in guiding the choices their children make. We have also led the way with product innovation and product choice.
In 2006, more than 10 years ago, we enacted our voluntary industry guidelines for the sale of beverages in schools. By 2009, these guidelines were set in place at elementary, middle and secondary schools across the country. Full-calorie soft drinks were voluntarily removed from schools and replaced with only water, 100 per cent juice for elementary and middle schools, and water, juice, milk and low-calorie beverage alternatives for high schools.
Regarding the proposed legislation on marketing we are discussing here today, our members have had voluntary guidelines on marketing to children already implemented for a number of years. The only products permitted to be marketed to children under the age of 12 are 100 per cent juice, milk and water. Some members go beyond that and do not market any beverages to children under 12.
Advertising Standards Canada regularly reviews our members' performance. As of the most recent 2015 report, members that participate in Canadian Children's Food and Beverage Advertising Initiative are 100 per cent compliant in their commitment to limiting marketing on TV, in print media and on the Internet and company-owned websites. Additionally, research presented at the CDPAC conference in 2014 showed that the beverage industry had completely eliminated their marketing presence on children's television stations.
With regard to the proposal to limit advertising to young people, the term proposed — primarily directed at children — has not been defined as of yet, which would lead to extremely broad marketing and sponsorship limitations, and lead to bans in adult-watched programs and adult-attended events. Raising the age to 17 for specific audience shares of programming could limit our members' abilities to advertise on 90 per cent of television programs in Canada. Once again, because the public policy process here has not been defined clearly, the negative consequences of this decision may far outweigh any intended effect.
Let's ensure we're targeting the right age to limit. An age limit of 17 or younger, for example, means an individual can join the Canadian Armed Forces but could potentially not watch a food or non-alcoholic beverage ad on "Hockey Night in Canada.''
That is why we cannot support federal legislation that eliminates advertising of products and sponsorship of events directed at adults or are ones that children attend with adults. Parents are primarily making choices for their children; we believe parents should retain that right and responsibility. When we start questioning whether they are not the best- placed to do so, that is a whole other policy discussion.
The beverage industry's current voluntary initiatives clearly demonstrate our commitment to encourage balanced lifestyles for Canadians. Even though Canadians' intake of sugar-sweetened beverages, according to the Conference Board of Canada, has dropped by 20 per cent per capita since 2004, obesity rates unfortunately continue to rise. CBA members' products make up just 7 per cent of Canadians' daily caloric intake, but we take full ownership and responsibility for that small role.
Finally, let me reiterate that we support and share the government's objectives and desired outcomes for the health of Canadians of all ages. What remains our concern, however, is the question of what constitutes sound public policy decisions where our members' ability and capacity to market and advertise in a competitive landscape is impinged upon. Equally important is our members' ability to participate in community events and initiatives where they have long been a welcomed, supporting presence. We believe this continues to be of great mutual benefit, and we do not believe there is any sound evidence to suggest it has had a negative impact on the desired health outcomes of Canadians, especially Canadian children.
Thank you I and would be happy to answer any questions.
The Chair: I will turn to Food & Consumer Products of Canada, and we have Michelle Saunders, Vice President, Provincial and Territorial Affairs, and with her is Byron Shaw, Counsel for FCPC and Partner, McCarthy Tétrault LLP.
I understand, Ms. Saunders, that you will be making the presentation.
Michelle Saunders, Vice President, Provincial & Territorial Affairs, Food & Consumer Products of Canada: Good morning. Food & Consumer Products of Canada is Canada's largest national trade association, representing companies that manufacture and distribute safe, affordable and high-quality food, beverage and consumer goods products. Our industry is the largest employer in Canada's manufacturing sector, directly employing nearly 300,000 Canadians from coast to coast.
I am joined today by legal counsel Byron Shaw, who can help to answer any questions on our assessment of the scope and potential reach of Bill S-228. As some of the questions in previous hearings were of a legal nature and I am not a lawyer, we thought it would be helpful to have Byron attend.
I would like to thank the committee for the opportunity to appear before you today and engage in this very important discussion. I'd especially like to thank Senator Raine for her open and frank engagement with FCPC. We have benefited from her perspective and candour.
FCPC and our members are deeply committed to the health and wellness of Canadians. Our member companies continue to invest in product development and reformulation to enhance the nutrition profile and increase the number of healthier choices available to consumers. A wide range of products with reduced levels of calories, sugar, fat and salt, in line with current guidelines on healthy eating, are readily available in today's marketplace.
We take great pride in our partnership with Health Canada over many years on the Nutrition Facts Education Campaign which helped Canadians to better understand the nutrition information already found on packaged foods and beverages.
Ours is a highly regulated industry, but we are also a consumer-driven industry. We recognize that the dialogue on marketing to children has changed along with the global landscape.
A decade ago, companies came together voluntarily to establish restrictions around child-directed marketing through the Children's Advertising Initiative, the CAI, and to redirect, in some cases, marketing dollars to promote healthy, active living. A number of companies stopped marketing to children altogether. The CAI has always been a living program and has evolved over the years.
Industry is prepared to do more and will do more to restrict marketing primarily directed at children. We wonder, though, if this bill, in its current form, is so broad and sweeping that it may well reach beyond its stated intent of restricting marketing of food and beverage to children. We have very real concerns that it could ban marketing of food and beverages to adults.
We have listened intently to Senator Raine's presentation to this committee and understand she will propose amendments to the legislation at clause-by-clause. We would suggest these amendments are fundamental changes. We are being asked to comment on the bill before us, not the bill this committee will ask the Senate to send to the House of Commons, and it would be helpful to review and comment on the actual amendments.
Until then, I would like to provide comment on three specific areas of the bill: age, labelling and packaging, and the use of the term "unhealthy.''
Bill S-228, in its current form, refers to children under 13. Although this differs from the current age limit of 12 set out in the Canadian Broadcast Code, we are supportive of the increase to 13 as it is consistent with restrictions in Quebec. Increasing the age to 16 reaches directly into adult-directed marketing, which the senator has clearly said is not her intent. The legislation refers to marketing primarily directed at children without defining the term or how it might be applied.
Age is also important when considering the proposed restrictions on sponsorship and advertisements. Taking into account the proposed increase in age to 16, and the term "primarily directed at children,'' would a ban on sponsorships extend to the Ottawa Senators, the Toronto Blue Jays or the Olympics? These are not primarily directed at children. Teens are watching programs like the Academy Awards, the Super Bowl, "Hockey Night in Canada'' and "Grey's Anatomy.'' These programs are not primarily directed at children. Will food and beverage marketing be prohibited on these programs broadcast in Canada?
The labelling and packaging ban proposed in clause 7.1 would potentially ban a wide array of activities that allow consumers to reliably and readily identify their product of choice through labels and brand recognition. It would impact the entire package or label, including font, colouring and depictions of the product, and would remove manufacturers' and consumers' ability to distinguish one product from another. This is concerning to industry and inconsistent with the program in place in Quebec.
Moreover, this section does not take into consideration other changes to labelling and packaging under Health Canada's Healthy Eating Strategy and changes being driven by the Canadian Food Inspection Agency through its regulatory modernization. We recommend clause 7.1 be removed.
We are concerned by the proposed amendment to define unhealthy food. FCPC and its members agree with Bill Jeffery, and others who have testified here before us. Nutrition criteria will overly complicate the application of the ban.
If this bill effectively bans the practice of marketing of food and beverage to children on the grounds that it manipulates their developing minds — and this committee has heard that argument — then it is wrong to market any food and beverage to children. If it is wrong, it's wrong, without exception.
It is far more important to focus on healthy, balanced, lifelong eating habits. Stigmatizing individual food items won't achieve the stated goal of reducing childhood obesity.
The food and beverage industry is prepared to do more to restrict marketing primarily directed at children. This bill, however, reaches beyond the stated intent. Industry wants to be part of the discussion moving forward. We look forward to that opportunity.
Thank you.
The Chair: Thank you all very much. We will open up the floor to questions now. Since we have three different groups presenting this morning, please direct your question in the first instance. If a question is directed at one of you and others wish to come in on it, please signal through the chair and I will recognize you and give you a chance to answer the same questions. With that, I will go first to Senator Eggleton.
Senator Eggleton: I will start with Restaurants Canada, but it applies to all three. Thank you for your presentations. You've said in your presentations — all of you, particularly Restaurants Canada — all the valuable things your industry does in terms of voluntary community work and how sponsorship helps to support various charities.
But there is another side to this coin, as we found out when we did our obesity study last year, namely, the increasing rates of obesity, which Mr. Goetz admits in his presentation continues to run apace in this community. It tripled three times since 1980 in terms of children, leading to an increased risk of chronic diseases. It leads to children who take that overweight or obese condition into the rest of their lives, and this impacts the general population in terms of substantial increase in health care spending. We have learned, certainly in the previous decision of the Supreme Court of Canada, that their opinion is that children are especially vulnerable to marketing.
At the same time, Tom Warshawski, professor of pediatrics at the University of British Columbia who appeared before us, said that the teenage brain is also very much under construction in the early years of life and, inciting the Ottawa principles, has suggested that we go to under the age of 17; 16 maximum is another way of putting it.
You've also cited the voluntary aspect of trying to meet guidelines, the CAI, the Canadian Advertisers' Initiative, but we've also had testimony as a result, for example, of a study from the School of Epidemiology and Public Health, Faculty of Medicine at the University of Ottawa, which says it doesn't work. They're suggesting in a preimposed study to see if the healthfulness of the food and beverages advertised to kids has changed since the new uniform criteria — the CAI voluntary guides — have been implemented and they found no changes whatsoever. They say that children and teens are targeted more frequently, about 92 per cent more frequently. One of the shocking differences they found is that children's exposure to food and beverage marketing actually increased after the self-regulatory pledges were implemented.
Also, a public opinion poll showed broad public support for restrictions on marketing to kids. About 70 per cent of respondents felt children are exposed to too much advertising by the food and beverage industry.
Then there was a report this year from Heart & Stroke which said that the kids are not all right, how the food and beverage industry is marketing our children and youth to death.
So, there are strong opinions about the kind of influence that your industries have.
Senator Nancy Greene Raine has suggested some amendments. She suggested going up to a maximum of up to age 16, under age 17. Also, instead of all food, which is what you see in the bill you've commented on, she's suggesting unhealthy foods and, in that regard, the nutrient profiling system used in some countries and endorsed by the World Health Organization. Third, she suggests removing a lot of the specifics in this bill and putting them into a regulatory system where you would have further opportunities to comment.
Could you comment on these three changes that she has proposed to make to the bill?
Ms. Reynolds: Thank you for the question. We do recognize the seriousness of the obesity issue and we do want to be part of the solution. I think you will have noticed that restaurant menus have evolved significantly over the last several years. We offer a lot more healthy options than we did 10 years ago. You can go into any restaurant now and there are healthy options available to you in terms of salads, fresh fruits and vegetables, regardless if it's a quick- or full-service restaurant.
Some of the other things are providing transparency in terms of the composition, the nutrient profiles of our food. We have partnered with the B.C. Government to implement informed dining. This is something we'd like to roll out across the country. We've talked to Health Canada about taking a leadership role. One of our biggest concerns is having a patchwork approach. We are in favour of having calorie posting and informed dining across the country, but we want the same program across the country. The programs that it would apply to tend to be multi-jurisdictional, so it's difficult if they have a different program in every region.
Getting to your three specific questions, our main concern about the age limit is being able to differentiate the marketing and advertising for a teenager versus an adult, and whether that will impact our ability to market our products to any audience. That's our primary concern.
With regard to the question about putting more into regulation, yes, right now this is so universal it would cover everything. Some of these things will have to be determined in regulation. One thing we wanted to do today was to point out some of our concerns when the regulations are developed so there aren't unintended consequences.
Our members are very community-minded, but it is a very competitive industry and, again, 65 per cent are small, independent operators. They need a way to get information out to Canadians about the products and services that they offer. They can't just open a restaurant and expect people to come in. They have to have the ability to market their restaurants. That is the other concern.
What was the third one?
Senator Eggleton: Instead of all foods, it would be unhealthy foods.
Ms. Reynolds: That is somewhat complex in a food-service setting because of the high degree of customization. You have a situation where a product might be healthy, but if you put all the condiments and cheese on, it's not so healthy. To try to isolate specific menu items, when foods are always eaten in combination in a restaurant, is very tricky from our perspective.
The Chair: Does anyone else have a comment?
Ms. Saunders: I'm happy to do so. Senator, you packed an awful lot into that question.
At a general level, this committee knows full well, because of all the research and comprehensive hearings you undertook in 2015 and the comprehensive report you put out, childhood obesity and obesity at large is a complex issue and a multi-faceted approach needs to be taken to address it. Marketing to children is but one piece of that.
Our concern here today is that the legislation before us extends far beyond the stated intent. Without clear definitions directed at children, it's not clear to us that this is actually directed at children.
With regard to the specific amendments on age, as soon as you raise the age to 16, we are immediately into adult- directed marketing because that is what the kids are watching.
On unhealthy, that is very concerning to us. It is a fundamental change in the language. I think it is much more helpful to be focused on healthy eating habits and dietary patterns rather than focused on specific food items. We would support restrictions that apply to all foods.
The nutrition criteria you are speaking to in place in Latin America, we would suggest, needs to be applicable. Any nutrition criteria needs to be applicable to the Canadian context to reflect our food landscape, our cultural and food preferences here in our economy. It is very different than where those nutrition criteria are currently in place.
As for general amendments, the senator has indicated she will remove a lot of detail from the legislation to put it in the regulation. So I understand the process that regulation is easier to change than legislation and I appreciate that, but I don't know what that will look like.
If, in fact, we are left with a framework piece of legislation that simply lays out the scope or intent and everything will be determined in regulation, then I would say that it is very difficult to comment on. It's fundamentally different than the bill before us right now. It is imperative that industry be at the table and look forward to that opportunity throughout the development of further regulations.
Mr. Goetz: I want to comment on three things in your comments. First, the recent Heart & Stroke study that came out. A couple of my members were mentioned in that study. One of the members has reached out to Heart & Stroke to ask for the data and background on that to see if mistakes are being made and can be corrected. To this date, we have yet to receive what exactly is being referred to in the study.
I would refer again to comments made by Advertising Standards yesterday:
For instance, the report specifically mentioned two products as being among the most frequently advertised products on popular children's websites. However, as found in ad standards compliance audits, the companies have not placed child-directed advertising for these products in any Canadian medium, including children's websites. In fact, one of the products is not even available for sale in Canada.
Furthermore, of the 10 children's websites that were reviewed, it appears that only one is a Canadian website.
To Michelle's comment, we need to keep this in the Canadian context.
As far as healthy versus unhealthy, we also support the position that if the legislation is to go forward, then it has to be all food and all beverages. If criteria were put in place, for example, diet soft drinks would more than likely be put in the unhealthy category even though artificial sweeteners, according to Health Canada, the FDA, the European Food Safety Authority and the New Zealand Food Safety Authority have deemed them a safe and positive alternative to full- sugar beverages.
As far as age goes, raising that age to 16 or 17, as already mentioned here by all the participants, would probably result in putting us in a ridiculous situation of someone who is 17 years old being able to watch an episode of "Game of Thrones'' on HBO Canada, but not being able to see an orange juice ad during that program.
The Chair: We have made comments on orange juice in a published document. We are not impressed.
Senator Seidman: Juice is still 100 per cent sugar.
I want to ask you about the Quebec situation, because none of you have really spoken to that, and its impact on the companies that you represent. The Quebec ban on all advertising to children under the age of 13 has been in effect for more than a couple of decades. I would like to know how your companies have responded to that and what impact, if any, it has had on them.
Could you give us some specifics on the kinds of markets that it might have affected? Does the Quebec ban specifically refer to packaging and endorsements, or is it limited to print and broadcast? Could you respond to that? I would like all of you to respond. Perhaps I will ask Ms. Saunders if you might start, and we will move in order along the line.
The Chair: The reason I do this is so we don't have a debate among the witnesses about who will go first.
Senator Seidman: I appreciate that. Thank you.
Ms. Saunders: I can't speak to a specific impact that any of the individual companies have experienced. I can tell you that in Quebec packaging and labelling is not part of the legislative framework there. The Quebec legislation was passed many years ago for a specific reason. It wasn't focused on obesity at the time. Also, it is limited to the French- language market and it was implemented a long time ago.
One of the things we see in the data is the difference between exposure across borders, and it is an interesting consideration for how we would enforce that widely in Canada, with language issues and exposure from the U.S. I think we would have concerns there.
Mr. Goetz: I have nothing to add to that.
Ms. Reynolds: The Quebec market is very different than the rest of the Canadian market in terms of the composition of the industry. There are more independent operators than chains in Quebec than there are in the rest of Canada. There is a different makeup in terms of quick-service versus full-service restaurants. Of course, there is a difference with the English and French as well.
My understanding is that those who are marketing to children under age 13 are primarily marketing healthy products in the rest of Canada. They are not marketing in Quebec, but those that do market to under 13 are marketing products that are low in sugar, low in sodium and low in calories. That is it my understanding.
David, do you want to say something?
[Translation]
Mr. Lefebvre: Regarding obesity, despite the law that has been in place for a number of years in Quebec, there are also problems. Witnesses referred to various issues, for instance with regard to physical activity. In Quebec businesses have had to adapt. As Ms. Saunders mentioned, the prohibition on advertising is not as broad as the one that is proposed here. Restaurateurs — both independent businesses and chains — have the opportunity of getting involved in their community by sponsoring certain activities. That is being done in Quebec for young people and adults as well, for instance in hockey tournaments. The point is simply to find a proper balance between the objectives of the bill and reality, through some of the proposed amendments, so as to avoid the adverse consequences that could be caused by the Canadian legislation.
[English]
Senator Seidman: Ms. Saunders, you mentioned that the Quebec regulation legislation was in effect before the obesity issue was in discussion, and that may be the case. However, the Quebec legislation was challenged in the courts. In fact, the Supreme Court upheld it because they recognized that children's brains and minds at that age are vulnerable and can be very influenced by advertising.
I do believe we have heard similar argumentation made by witnesses in front of this committee. The argumentation suggested that it continues beyond the age of 13, that children beyond the age of 13 are highly influenced by what they see in the media. Their brains are still forming. They are still extremely vulnerable.
I'd like to have some response to that, if I might.
Ms. Saunders: Sure, and I know Byron can comment on the Quebec case.
I am not suggesting that obesity wasn't a public discussion at the time. It wasn't the impetus for the bill, and the Quebec legislation is not about food. It is not specific to food. That is my only comment.
Byron Shaw, Counsel, Partner, McCarthy Tétrault LLP, Food & Consumer Products of Canada: Thank you, senator. There have been a number of comments made about the Supreme Court's decision in 1989. The Quebec legislation was introduced in 1978 as an addition to the Consumer Protection Act in Quebec.
It is important to note some of the differences in the Quebec legislation from the bill that's being proposed currently, and specifically the most recent amendments that have been put forward by Senator Greene Raine.
The Quebec legislation concerned only advertising. There was no labelling and packaging ban; there was no ban on testimonials and endorsements; there was no ban on sales promotions; and there was no ban on sales akin to what is currently proposed in clause 7.6 of Bill S-228. It was also restricted to children aged 13 and under only.
All of the members of the court in the Supreme Court's decision agreed that the ban violated the right to free expression. Consistent with all of the court's previous decisions, they agreed that the government had the onus to show that the ban proposed by the government to amend the Consumer Protection Act was the least intrusive means, least intrusive on the constitutional right of freedom of expression.
Three members of the court supported the ban as the least intrusive means; two members did not. It was a narrow majority. The court was careful in noting that the government had to prove a sound evidentiary basis for all of the prohibitions that were put forward in Quebec, which were restricted to advertising.
It is important to note here that the court, even the majority that supported the legislation, made note of the fact that advertisers were still free to market their products to adults. That was an important feature that made the bill, in the majority's view, the least intrusive. By raising the age here to 16, as others have commented, it is difficult to differentiate between adult-directed marketing and child-directed marketing. It is important to remember what the Supreme Court said about least intrusive means, particularly with raising the age definition.
The Chair: Thank you for that, Mr. Shaw.
Senator Dean: Thank you very much for joining us today. My question is directed to you, Mr. Goetz, and to your submission on page 5 where you note that CBA members' products make up just 7 per cent of Canadians' daily calories. I am presuming that is an average.
How does that square with the testimony of Dr. Tom Warshawski, the Assistant Clinical Practitioner of Pediatrics at UBC? He tells us that not only do we know large amounts of money are invested in advertising targeted toward young people, but the average Canadian teen consumes over 500 millilitres of sugary drinks every day, over double that of adults, an intake that significantly exceeds the maximum daily intake of sugar recommended by the WHO and the Heart and Stroke Foundation.
If we go back to your 7 per cent number in terms of calories, I would presume that is a number that varies significantly, based on age and income, and I would likely assume that it very significantly goes up when we are talking about younger people and people with lower incomes.
Do you have any data or evidence that would support that?
Mr. Goetz: First, on the 7 per cent, that's not industry data; that's Canadian Community Health Survey data, so government data. That was from 2004. That is the latest survey we have. We understand we will be getting new CCHS data within the month and look forward to getting that.
With the decrease in full calorie sugared beverages that we know has happened since 2004, and verified by the Conference Board of Canada, we fully expect that number to be lower in the latest data when it comes out.
As far as consumption patterns, there absolutely are some people who overconsume our products, and there are people who overconsume hamburgers, baloney sandwiches and cheese. We are not unique when it comes to overconsumption.
The industry has done a lot to do what we can within our power to curtail that. Some of the initiatives that we have done in Canada are almost 50 per cent of the non-alcoholic beverage products on the shelf in Canada are either low- or no-calorie beverages. In North America, that is unique amongst Canada, the United States and Mexico. We know that the consumption of full-calorie beverages in Canada compared to Mexico and the United States is far lower — almost half in Mexico compared to Canada, and a third less than the United States.
As far as economic and social drink patterns go, I don't have that information with me today, but I can get you some preliminary data on that. My recollection is that it is pretty level throughout the age limits.
Do teenagers — again I don't have that information in front of me — probably consume more sugar-sweetened beverages than adults? There is an increase there, but they are also consuming more chocolate bars, chips, other products as well.
Again, when we are talking about children, adults are making those decisions for children. Our concern of raising the age limit to 17 is where do you draw that line between, as I mentioned before, if it goes to 17, someone who can join the Armed Forces but can't decide what beverage they will choose to drink?
Senator Dean: As a supplementary, would you contest Dr. Warshawski's data which suggests that average Canadian teenagers consume 500 millilitres of sugary drinks, over double that of adults? Does that seem about right to you?
Mr. Goetz: Unfortunately, I have not seen his work on that. I don't know what source he is citing. I can follow up with you, senator, after this, but I don't know what source he is citing.
[Translation]
Senator Cormier: My question is mainly for Restaurants Canada. Thank you very much for your presentations and for your very eloquent description of what you do to support community development. I am particularly concerned by the impact of this law on small businesses in the regions of the country.
Ms. Reynolds, you spoke in your statement about communications strategies and issues related to that aspect that are faced by restaurant operators. I'd like to hear more from you about that to get a better grasp of the impact. In my own region, for instance, there are restaurants that do not advertise a specific product but that do promote their business in a general and creative way in the course of being involved in some community event. I'd to hear more from you on this to determine what the real issues are regarding communications for enterprises.
My second question is for Mr. Lefebvre, and it is about the economic impact analysis you recommended we do. That seems to me to be an ambitious project for the government. What do you think that economic analysis should include?
[English]
Ms. Reynolds: Thank you, senator, for the question.
I think that people have in mind a few companies that they are very familiar with in terms of the charity and sports activities that they support, and people don't realize that this is common to all restaurant businesses, whether small or large. They tend to be very community-minded. It is a tough business. They are open seven days a week, 16 hours a day. Their bread and butter is their local market. They have to be very involved in the community and they have to be out there promoting their restaurants and trying to differentiate their restaurant from all the other restaurants in their community.
Our concern is the backlash that there would be from community members and parents if, suddenly, they weren't able to participate in these community events and if they weren't able to communicate with their customers in terms of what they have to offer.
When you think about a restaurant, it's not as if tourists are in town and they go to a restaurant. What do I want to eat tonight? They walk down the street and the first thing they want to do is look at the menu and the offerings. The restaurant operator wants to draw customers in. The concern is how broad in scope this marketing and advertising ban will be in terms of what restaurants will be able to do to get their message out to customers about what they have to offer. That's where our concern is.
[Translation]
Mr. Lefebvre: Earlier, when I mentioned an economic impact analysis, of course I did not mean an impact analysis involving the entire industry. I was referring more to television programs, television networks and Canadian publications.
We often hear that there is a crisis in the media regarding advertising revenue, and a crisis generally. In certain sectors income from the food industry in general is important, whether we are talking about chains, restaurants, distributors or supermarkets, including advertising in weeklies and local publications. We also often hear the federal government — and rightly so — talk about protecting and defending Canadian content. We simply need to recognize that the food industry in general contributes to advertising revenue. Unfortunately the bill does not mention an economic analysis of that loss of revenue for the media, whether large media or local weeklies or local television networks. We would like that to be included in this bill so as to bring out the real impact on advertising expenditures.
I will give you an example. Personally I am a consumer of sports programs: I watch Impact play soccer, the Canadiens play hockey, and so forth. There are of course many advertisements from the food sector, not only from restaurants but the entire sector. However the bill goes quite far in this regard, because such programs or events could no longer broadcast any advertising involving food. That is one of the examples where we feel the distinction made for young people is not precise enough, as this will impact a content that is first and foremost aimed at adults. That is what I had in mind when I made that comment.
Senator Cormier: Fine. Thank you.
[English]
Mr. Goetz: Thank you for asking that question, particularly about smaller operators. There seems to be a focus in some of the comments made earlier in the week that this is just geared toward big, bad, multinationals.
For example, one part of the bill is about sponsorship. One of our members is Cape Breton Beverages in Nova Scotia. Others are Browning Harvey in Newfoundland and Arctic Beverages in Winnipeg. All three of those bottlers and distributors are in areas of Canada that have hit hard economic times and all three are extremely active in their communities sponsoring sports teams, and donating product to picnics and events, a variety of products, everything from bottled water to juice to full-calorie products. That would come to an end under this bill. To what end?
[Translation]
Senator Mégie: My question is for Mr. Goetz. This morning, I heard about sweet, high-calorie beverages and obesity. Everyone tells us that obesity is serious, but I'm thinking of the long term. Perhaps this escaped me, but I heard nothing about the more serious issue currently, which is energy drinks that contain a large amount of caffeine and have led to a number of cases of arrhythmia and to the hospitalization of children. After you turn 18, you must be capable of making some informed choices. The bill proposes to increase the relevant age from 13 to 16, and that is the age group where this danger is prevalent. Advertising of these energy drinks makes young people believe that they will improve their performance on exams. So they all buy them to do better on their exams; the problem is that they don't know where to stop.
To follow up on what Senator Cormier said in his question about advertising, these beverages are important sources of advertising revenue. The Red Bull Crashed Ice, for instance, is a big event in Quebec and Red Bull is the sponsor. What do you think of that aspect, and how would you position it with regard to the bill? So far this morning I have heard nothing about that aspect.
[English]
Mr. Goetz: Thank you for your question. I will address a couple of things. If this doesn't address your question, you can redirect it.
There are a lot of misconceptions about energy drinks, first of all. In Canada we have a rigorous regulatory regime around energy drinks which is different than the United States. For example, in Canada the caffeine levels are capped. A standard can of energy drink, the smaller can, which is the standard industry size — there are larger sizes but those levels are capped as well — contains half as much caffeine as a cup of coffee.
We have to be careful, I think, when we are throwing around words like "highly caffeinated,'' because those are the facts. You can pick up a can and look at it and that is a fact. Even in the larger cans the caffeine level is capped in them. I believe the largest amount of caffeine you're allowed to have in Canada is 179 milligrams.
Health Canada recommends about 400 milligrams of caffeine intake per day as a safe level, and one large coffee at a well-known coffee shop can put you at about 390 milligrams of caffeine, so we have to be careful on levels of caffeine. It's well known that 92 per cent of caffeine that Canadians consume comes from coffee not energy drinks.
As far as your comment about people 13 to 17 — and I would be happy to provide you a copy — Health Canada did a rigorous risk assessment on energy drinks a few years ago when they were working on the process of moving energy drinks from natural health products over to the food category. Energy drinks now are regulated like food, like any other product on the market, and they found the consumption of energy drinks to be safe. At that age, Health Canada judges the amount of caffeine by weight, how much weight and how much caffeine you should consume in a day.
We have to look at what the regulators said about energy drinks. The European Food Safety Authority — and I can get that study to you as well — did the most recent and largest study of energy drinks globally. That was about a year and a half ago. They found that children should not drink caffeine, period, but in those age groups, that energy drinks in moderation should not be overdrank, just like coffee should not be overdrank, they do not pose a health risk.
I can't speak to individual cases or innuendo. All I can point to is what the largest regulators, including Health Canada and the European Food Safety Authority, have said about the category very recently.
[Translation]
Senator Mégie: I don't want to prolong the debate. I would simply like to add a comment for the good of the study. A large 10 ounce Starbucks coffee certainly contains a lot of caffeine. However, someone who drinks a can of Red Bull may consume two, three or four, even if the initial quantity of caffeine seems less high. According to the Red Bull ads, this drink gives you wings. There is a higher probability that you will consume three or four. I don't know if the studies provide a consumption profile, because they don't check with people to see how many cans of these energy drinks they consume. It's the difference between a big cup of coffee and a can of energy drink. People drink more of them, because they feel more comfortable doing that that ordering four cups of coffee at once at Starbucks, for instance. That is the nuance.
[English]
Mr. Goetz: I don't know if things have changed since I was in university, but I know drinking three or four cups of coffee in a day was common.
I can't comment on how an individual feels after drinking a particular drink, but the Canadian Beverage Association worked with Health Canada directly probably five years ago and collected consumption data that Health Canada approved, and the evidence clearly shows that people are not drinking four or five beverages a day. I would be happy to provide that for you, and we worked Health Canada on that consumption data.
Health Canada put out a press release two weeks ago about caffeine consumption as a whole, and their recommendation was watching the consumption of caffeine from all sources. It is not one individual source.
[Translation]
Senator Mégie: It would be helpful if you could provide that data. Thank you.
[English]
Senator Eggleton: The restaurant association has mentioned a concern about a lot of small businesses. You clarified this, but are you talking about local little restaurants down the street, around the corner, neighbourhood restaurants or even larger full-service restaurants? I think the focus of concern on advertising is the big fast-food chains. I don't know. I'm not aware of any small restaurants that advertise to children.
In fact, they perhaps don't do an awful lot of advertising, at least in the media sense, but I wouldn't think that most of them would advertise to children, unless they were a children's restaurant, per say. Could you make that distinction about how it might impact the small restaurant owner?
Ms. Reynolds: This goes to our concern about the language in the bill and the switch to under 17 and that encompasses any kind of promotion activity that they do.
That's how they get out there and promote their products. They get involved. They sponsor fun runs; they sponsor local baseball teams and hockey teams. It's not just the quick-service restaurants that do that, but it's your neighbourhood restaurants right across the country that are very engaged in that kind of activity. That's what I was trying to refer to.
They do promotions as well in their local papers. Right now we have a bill that could indicate, based on the language in the bill, that none of this activity would be permitted. That's why we really want to ensure that there is an understanding that this could impact a lot of businesses that maybe you didn't realize would be impacted.
Senator Eggleton: Mr. Goetz, you mentioned three companies that would be impacted by this bill, but if the bill changes to unhealthy foods and beverages and goes on the basis of this nutrient profiling, which a number of countries, I think in Latin America but in Europe too, are subscribing to, won't those three companies be fined? Surely they market healthy foods don't they, or healthy beverages?
Mr. Goetz: Could you rephrase that a bit?
Senator Eggleton: One of the proposals put forward by Senator Raine is to change the bill to unhealthy food and to follow a nutrient profiling guideline. Health Canada would follow that guideline in determining what is healthy and what is unhealthy. You mentioned three companies that you said would be affected by the bill, but I assume if we changed it to unhealthy foods and beverages that they would not be affected by the food, that they have healthy products.
Mr. Goetz: There are two aspects to it. There is product donation. If it changes to healthy from unhealthy, depending on where that line is drawn, companies still donate water. Probably under that definition they'd still be able to do that, but I'm talking also about sponsorship.
Cape Breton Beverages sponsors several hockey teams in Cape Breton.
Senator Eggleton: Do they have healthy or unhealthy products?
Mr. Goetz: They have a whole range of products, so my understanding is they would be caught up under that sponsorship.
Senator Eggleton: Certainly the unhealthy products would be.
Mr. Goetz: No, just the sponsorship of buying jerseys for a team, for example, would be caught up in that.
The Chair: You've given us a pretty good spectrum of the issues involved. One of the things Mr. Goetz said is the one we really should be focusing on overall, and that is the issue of balance. Really life is about balance in all areas, and that's the issue that underlies many things, and imbalance leads to the obesity crisis that we see in the country, and we know that it's a cumulative kind of issue. When the body reaches higher than usual mass, the biological conditions kick in and there is tremendous resistance by the body itself to that body lowering its weight.
In addition, there is the psychological impact that we know that once one reaches a significantly overweight position or an obese position, the tendency is that that continues throughout life.
Getting back to that balance issue — and I am not intending to argue the case here at all but just to point out the observation — when we take a single component of a beverage, as in the discussion that you just had on caffeine, the issue is not just that caffeine is in a drink that a 4- to 8-year-old is drinking, but there is sugar in it of at least equal amounts in terms of milligrams, and sugar and caffeine are synergistic with regard to their impact on individuals.
On the overall issue in the long term, for example, Ms. Reynolds, in one of your earlier comments, used cheese in a kind of derogatory way, too much cheese or whatever. In actual fact, it's a very healthy component, so the issue is really just that we have to do things in balance, and overall it's a balance in diet and so on.
Ultimately, our committee has to look at this legislation in the end, after all the inputs that have been made by our witnesses, and see what we feel with regard to this component of an effort to try to ensure that youth, at least, are provided with a relatively reasonable approach to what they should take in as a diet and consumption and so on.
I think from my perspective, you've represented your respective areas well and very articulately with regard to the points that you made. I want to thank you very much for appearing before us and assure you that you have been listened to. We will be dealing with that at some time in the near future, we hope.
(The committee adjourned.)