Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue No. 27 - Evidence - June 21, 2017
OTTAWA, Wednesday, June 21, 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) was referred, met this day at 4:15 p.m. to continue its study of the bill and to do the clause-by-clause consideration.
Senator Kelvin Kenneth Ogilvie (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
I'm Kelvin Ogilvie from Nova Scotia, chair of the committee, and I'm going to invite my colleagues to introduce themselves, starting on my left.
Senator Eggleton: Art Eggleton, Ontario, deputy chair of the committee.
[Translation]
Senator Petitclerc: Senator Petitclerc from Quebec.
[English]
Senator Stewart Olsen: Carolyn Stewart Olsen, New Brunswick.
Senator Seidman: Judith Seidman, Montreal, Quebec.
The Chair: Thank you, colleagues. I remind us that we are here dealing with Bill S-228, An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children).
I'm delighted to say we have experts from Health Canada who, in the first instance, answer questions that we may have. We will direct them to Mr. Lee in the first instance, and he will make certain that the appropriate person answers with the appropriate reply.
I will put it to you right up front that they are prepared to stay through clause-by-clause consideration to help us if necessary. Are you agreed in inviting them to join us for clause-by-clause consideration?
Hon. Senators: Agreed.
The Chair: Thank you very much, colleagues. If you will just stay with us through the session, we would appreciate that very much.
Since they're not going to make a presentation, I will identify those with us. Of course, we're very delighted to welcome back David Lee, Executive Advisor to the Assistant Deputy Minister, Health Products and Food Branch. With him we have Dino Covone, Manager of Policy Development, Office of Legislative and Regulatory Affairs, Health Products and Food Branch; and Saskia Ramsay, Manager of Policy and Issues, Office of Nutrition Policy and Promotion Directorate.
Welcome and thank you for being here with us.
With that, and given the nature of the uncertainties of the day, I'm going to get right to the questions from my colleagues.
Senator Eggleton: I have one big question. Since we've started this process of examining Bill S-228, the sponsor Senator Nancy Greene Raine, who unfortunately can't be here, has suggested five amendments in total. I take you have some awareness of them. They're ones that deal with a couple of changes to the preamble, the children's age going from under 13 to under 17, and a number of clauses on pages 3 to 5 that are removed and replaced, in effect, by regulatory regime when it's put into effect.
There is an addition on trademarks, so that they are protected; an addition of unhealthy food, primarily directed at children; and then, finally, the change in the coming into force clause from one year to two years. It makes it quite a different bill from the one we started with in terms of Bill S-228.
I want to know that you're aware of these changes and I want to know how they fit in with your departmental plans, as you've now gone into a consultation project with respect to not our bill but certainly the minister's mandate, and how well these all dovetail.
David K. Lee, Executive Advisor to the Assistant Deputy Minister, Health Products and Food Branch, Health Canada: Thank you for the question, senator. If I can, I'd like to begin by commending Senator Greene Raine for this very important work. It's important because it does fit in with the minister's strategy overall to reduce consumption of unhealthy foods. This measure really goes to targeting the health of children.
In looking at the measures you've just discussed, it's very important to us in terms of framing the overall prohibition on unhealthy foods to be introduced. This will help us defend should a challenge ever come up, and they do on occasion, for product-based prohibitions on advertising. That's a very important addition.
We recognize that in regulation we will need to spell out what unhealthy means. This is a very important line to draw for the sustainability of the measures so that it meets its objectives.
The other further regulation making we can do is under the breadth of the term "advertising'' in the act. A lot of what has been removed really can take place under an ability to capture a lot of measures that would be used to advertise and then spell out further what is directed at children.
All of these measures fit with other labelling initiatives that we're taking on to make sure that consumers are aware of substances such as sodium, sugar and saturated fat that we want to influence choice around. This does fit very well together with the current proposals.
Senator Eggleton: That's a very concise and brief answer.
Some of the representations we had before the committee, particularly from industry, were to the effect that they could understand to some extent under 13. Of course, they felt that they were on a voluntary basis through their mechanisms covering that, but they said once you get up to 17 or under 17, as is now being proposed, it becomes a little murky in terms of how you control that, because you're getting into adult advertising at that point in time.
Can you comment on the age factor in all of this? Do you believe you can adequately make that kind of a distinction to cover children, adolescents in effect, under 17 while not impinging upon their ability to advertise to adults?
Mr. Lee: Again, because the department has had this as a priority, we have been looking at evidence going into the question of age. While we acknowledge that there's no magic factor in 17 plus a day that would transform from a child into an adult, we've looked at international models and domestic norms about when you cross the threshold from childhood into adulthood. We've taken a look at the preponderance of that, and certainly from our point of view under 17 makes some sense.
There are a couple of considerations that would be important here. One is that if it's 13, we do see evidence that the concentration of advertising would then focus on youth just over 13 years old. There are vulnerabilities that we are studying there still in that population that could receive the advertising in question, whereas over 17 there's less of a push. You're crossing into a threshold that is closer to the adult scheme. We would invite, certainly, considerations like that.
As we're consulting on the measure from a regulation-making perspective, it's very important that we are able to clearly identify what is going to be directed. In terms of the material question of whether we are going to be able to tell the difference with ads, we want to consult on that but there are a number of factors that we can build to help us identify that cut-off.
Senator Eggleton: Thinking back to tobacco products many years ago, the focus on print and broadcast advertising, endorsements, labelling, packaging and all those sorts of things, the one thing that wasn't around at that particular time, to any great extent, was the Internet and the concern about online content. It's not just television, for example; it's also online content.
Have you any thoughts about how you can deal with that?
Mr. Lee: First of all, senator, it's important to say that the breadth of advertising is any representation by any matter whatsoever to promote. The width of that, we believe, will give us a firm oversight over the electronic realm.
Having said that, we acknowledge that this is an area that we as regulators increasingly need to study. It's an area where we'll need to confer with our colleagues in the Canadian Food Inspection Agency to make sure, as we put in measures, that there is enough to be done about it.
In our consultations we're very strongly minded to get as much information about how to approach as a strategy, knowing that this will be a challenging area.
Senator Seidman: From my point of view, Senator Eggleton really asked the big questions, but I do want a little more detail, if I might, on how we're to define unhealthy. It's a question that has come up in our hearings. There is an amendment now using the term "unhealthy,'' and there has been some discussion about how exactly we're going to define that.
I know that the WHO has done some work on this. There are international standards using nutrient profiling, for example. They have used models from two Scandinavian countries, Denmark and Norway, I believe.
Are we going to pay attention to these international standards? We're leaving all this to the regulations, of course, so we have to have a good degree of trust here; but could you give us some confidence about how exactly you're going to look at defining unhealthy food?
Mr. Lee: Thank you, senator. Absolutely, we will be looking at international models. That's very critical to the work here. We want to make sure, though, as we put out proposals to make regulations that we have some rigour about the suitability for the Canadian regime and its defensibility.
To that purpose, we currently have an online consultation for Canadians that closes on July 25. It does advance a pretty tangible discussion around what we're looking at from a preliminary point of view.
For us, it's important to focus on nutrients of concern, that family of sodium of salt and saturated fat. There is also the question of what levels they are present in to create the harm that we would consider.
In our consultations you will see that we are advancing a number of proposals, but we're trying to stay close to known quantities. For example, there is a rule in the regulations now that talks about if a company wants to claim "low in sodium,'' they have to be under 5 per cent of the daily value of that ingredient.
This is the line we know. The industry behaves around it. It's something that we can work with. There is a proposal for 15 per cent. It's a proposal we're looking at for front of packages to warn on those substances.
We're very interested in what we're going to hear in those consultations. We'll go through that with some rigour to determine the line. We're suggesting that because it will be stricter than current voluntary codes and, in fact, some of the international norms right now.
Senator Petitclerc: My main questions have been answered, but I have one point. Looking ahead, is it your understanding and feeling that this bill is flexible enough? Whether it is with advertising, nutrition or nutrients, will it adapt quickly to changes?
The example that comes to mind is 10 years ago when I think everybody agreed that juice was healthy. Now the trend is that maybe it's not that good for you.
I want to know if this bill will be easy to adapt to new science and new data.
Mr. Lee: Thank you, senator. In terms of the proposed changes, moving a lot of the oversight into the regulatory space will help tremendously in our ability to adapt. We understand that advertising is very adaptable, but also science does develop. We're refreshing our food guide for exactly those kinds of reasons. As we have more learning, we want to make sure those are implemented.
The ability to express the initial requirements and regulations would be subject to evaluation. That's a very important consideration as we responsibly develop the regulations to make sure we're evaluating the measure and then making any corrections accordingly. That will be a very important aspect for us to be looking at.
The Chair: Thank you very much.
As I mentioned at the outset, and I'll remind the committee, they have agreed to stay with us through clause-by- clause consideration and you have agreed to welcome them to join us.
I'm wondering if you are ready for us to go to clause-by-clause consideration and to deal with the amendments at that point. Is that agreed?
Hon. Senators: Agreed.
The Chair: Thank you very much. Before we begin clause-by-clause consideration on Bill S-228, I want to remind you of just a few points. If at any time any senator is not clear on where we are in an amendment, please signal through me and I will ensure that we stop and make certain everybody is aware of where we are with a given amendment within the bill.
Because this is not a lengthy bill, I will proceed with clause-by-clause one at a time. We know that we have several amendments, and those will be put on Senator Greene Raine's behalf by senators Eggleton and Seidman. You have all had them in advance. I believe there are additional copies, if you have not brought yours with you. We'll get those distributed.
Before I move into the clause-by-clause procedure, does anyone have any questions as to how we're going to proceed this afternoon?
If not, is it agreed that the committee proceed to clause-by-clause consideration of Bill S-228, An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children)?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall the preamble stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Shall clause 1 which contains the short title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed.
Now we come to the bill itself. Shall clause 2 carry?
Senator Eggleton: I have an amendment on clause 2. Clause 2 in the current bill reads:
children means persons under 13 years of age;
My amendment is:
That Bill S-228 be amended in clause 2, on page 3, by replacing line 3 with the following:
"children means persons who are under 17 years of age;''.
And I so move.
The Chair: The amendment is moved by Senator Eggleton. Does everyone understand the amendment?
Senator Eggleton: I can speak to it if you want?
The Chair: I'll see if there are questions for you. All of our colleagues have been with us when we've had these issues discussed, but, as I said, if there are questions at any point, do not hesitate to raise them.
I'm going to ask you again. You all understand the proposed amendment to clause 2. Shall the amendment carry?
Hon. Senators: Agreed.
The Chair: That's agreed.
Shall the clause, as amended, carry?
Hon. Senators: Agreed.
The Chair: Clause 2, as amended, carried.
Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Clause 3 carried.
Shall clause 4 carry?
Senator Eggleton: I have some further amendments. This is a fairly sizeable amendment. It starts to get into the area of removing a lot of these paragraphs and putting them into the regulatory framework.
That Bill S-228 be amended in clause 4,
(a) on page 3, by replacing lines 10 to 29 with the following:
"Advertising Directed at Children
7.1 Subject to the regulations, no person shall advertise unhealthy food in a manner that is directed primarily at children.
This is the first injection of the term "unhealthy food'' into the Act. Section 7.2 deals with the people who came here from the Intellectual Property Institute of Canada and pointed out that agreements relevant to intellectual property, international agreements and NAFTA agreements, for example, are such that if an organization ceases to use a trademark, it can lose it. This puts into effect the representation from that organization which made presentations to us.
7.2 (1) Despite the Trade-marks Act, the registration of a trade-mark shall not be held invalid on the basis of paragraph 18 (1) (b) or (c) of that Act as a result of compliance with this Act or any regulations made under it for purposes of section 7.1.
(2) For greater certainty, the absence of use of a trade-mark as a result of compliance with this Act or any regulations made under it for the purposes of section 7.1 constitutes special circumstances that excuse the absence of use for the purposes of the Trade-marks Act.'';
Part (b) goes over to page 4 and it takes out all of what you see on page 4. Again, it is a regulatory issue.
(c) on page 5, by deleting lines 1 to 12.
Lines 1 to 12 are also removed for that same purpose. That is the motion I now move.
The Chair: Senator Eggleton has moved the amendment as described. You all have a copy of that amendment. Are there questions on the amendment?
Are you ready for the question on the amendment?
Hon. Senators: Question.
The Chair: Does the amendment carry?
Hon. Senators: Agreed.
The Chair: Does the clause, as amended, carry?
Hon. Senators: Agreed.
The Chair: Clause 4, as amended, has carried. Shall clause 5 carry?
Senator Seidman: I have an amendment to clause 5 on page 5, lines 15 to 37. That whole section is removed and replaced with the following:
That Bill S-228 be amended in clause 5, on page 5, by replacing lines 15 to 37 with the following:
"(e.1) for the purposes of section 7.1,
(i) defining unhealthy food for setting out the criteria for determining whether a food is unhealthy, and
(ii) setting out the factors to be considered in determining whether unhealthy food is advertised in a manner that is primarily directed at children, including how, when and where an advertisement is communicated;''.
The Chair: Do you so move?
Senator Seidman: I so move.
The Chair: Senator Seidman has moved the amendment that she has just read out.
Do you have any questions for Senator Seidman on the amendment?
Are you ready for the question?
Hon. Senators: Question.
The Chair: Shall the amendment carry?
Hon. Senators: Agreed.
The Chair: Shall clause 5, as amended, carry?
Hon. Senators: Agreed.
The Chair: That is carried.
Shall clause 6 carry?
Senator Seidman: No. I have an amendment. My amendment is:
That Bill S-228 be amended in clause 6, on page 6, by replacing line 1 with the following:''
You will see that line 1 of that clause in the bill comes into force one year after the day on which it receives Royal Assent, but my amendment would say:
"6 This Act comes into force on the second anniversary of the''.
It increases it by a year. There was some discussion about this. I believe Senator Greene Raine communicated with us about this. She suggested that this would give us a substantial amount of time to write all the regulations and to get all this in order. It was only right to give the appropriate amount of time to get that done before it comes into effect.
The Chair: Are there questions for Senator Seidman on the meaning of the amendment?
Senator Dean: Could I ask an official to comment?
The Chair: Certainly, you may ask an official.
Mr. Lee: In terms of regulation making, given the constitutional sensitivities of this we need to do a thorough, rigorous analysis and make sure we're consulting clearly and that our regulatory cycle gives room to the department to get those proposals out there and gives us enough time to complete faithfully to bring the measure in.
The Chair: Are you ready for the question on the amendment?
Shall the amendment carry?
Hon. Senators: Agreed.
The Chair: The amendment is carried.
Shall clause 6, as amended, carry?
Hon. Senators: Agreed.
The Chair: Clause 6, as amended, has carried.
Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Clause 1 has carried.
Shall the preamble carry?
Senator Seidman: I have two amendments. I move:
That Bill S-228 be amended in the preamble,
(a) on page 1, by replacing lines 26 and 27 with the following:
"obese into adulthood;''
If you look at the line, you can see where the change is made. Take out "during the rest of their childhood and in their adolescence'', and just leave "adulthood.'' That is, of course, because of the age change in the legislation. You just say, "adulthood.'' You don't need the other categories of childhood.
(b) on page 2,
(i) by adding after line 6 the following:
"Whereas leading health organizations, including the World Health Organization and its regional offices such as the Pan American Health Organization, have developed evidence-based nutrient profiling models that serve as a basis for classifying food as unhealthy according to their nutritional composition for reasons related to preventing disease and promoting health;'',
In addition the next amendment is all part of the same amendment:
(ii) by replacing line 22 with the following:
"Whereas the Senate Committee recommended,'',
You can see if you look at that line that you take out the "and.'' Then the third component:
(iii) by adding after line 27 the following:
"And whereas it is widely acknowledged that marketing to children has spread well beyond the traditional media of television, radio and print to include online and other digital content and celebrity and character endorsement, and it is therefore critical that restrictions on marketing of food and beverages to children cover all potential marketing media in a broad and robust fashion in order to provide fulsome protection to young Canadians;''.
The Chair: Are there questions for Senator Seidman or for the officials in this regard?
Are you ready for the question on the amendment to the preamble?
Shall the amendment to the preamble carry?
Hon. Senators: Agreed.
The Chair: Shall the preamble, as amended, carry?
Hon. Senators: Agreed.
The Chair: The preamble, as amended, has carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: The title has carried.
Shall the bill, as amended, carry?
Hon. Senators: Agreed.
The Chair: It is carried.
Does the committee wish to consider appending observations to the report?
Hon. Senators: No.
The Chair: That's agreed. There will be no observations.
Is it agreed that I report this bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Chair: That is agreed.
Thank you very much, colleagues. It's important to note that we had pretty significant discussion on the key issues of this bill during the sessions. I think we want to thank our officials and their colleagues for the help they gave to Senator Greene Raine throughout this process and greatly facilitated our discussion of key matters.
We have acknowledged that there is a significant difference now to the final bill from the original. The regulations will be a very important part of this, but it should give clarity to advertisers, producers and regulators with regard to what is being dealt with as opposed to simply a language of paragraphs within a bill. We need to be confident that our officials will ensure that the regulations are appropriate in the end.
Finally, on behalf of the committee, I'd like to acknowledge our appreciation to Senator Greene Raine for her efforts in pursuing this. I also want to acknowledge our report on obesity where the recommendation for this direction occurred. We have a copy here, right now. There is no blatant advertising here, whatsoever. It's not permitted in Senate hearings. Visual effects are most important to children in that regard.
With that, colleagues, I thank you very much. I thank the officials again, and I declare the meeting adjourned.
(The committee adjourned.)