Food and Drugs Act
Bill to Amend--Third Reading--Debate
December 12, 2024
Thank you. I wasn’t going to speak to Bill C-252, but I sense that there’s a desire to move this bill along. We will be coming upon our break fairly soon, so I thought I would say a few words to help move it along.
Let me start by thanking the sponsor of the bill, my friend Senator Dasko, previous supporters of the bill — Senator Petitclerc, in particular — and also members of the Social Affairs Committee that did the study on the bill and presented us with their report.
I did not attend Social Affairs Committee meetings on this bill. I did follow the debates, but I did not have a front-row seat at the discussions and do not have full visibility, if you will, on the nuances of the debate. Therefore, I don’t want to overstate my knowledge of what happened at committee.
But you may remember that I asked questions, both at second reading and at report stage. You may have picked up from my questions that there was some hesitancy on my part concerning this bill. I want to assure everyone that the hesitancy has nothing to do with the intent of the bill. I fully support its objective of curbing the marketing of food and beverage advertising to children under the age of 13 in part because I’ve had my share of battles with the advertising industry when it comes to my own children being seduced by products that seem irresistible to them. I can confirm that I lost many of those battles.
I’m not a laissez-faire advocate of advertising where anything goes and where we do not have restrictions on the types of advertising that are harmful to society and, in particular, harmful to children. I support putting guardrails on the advertising industry — in this case specific to the advertising of food and beverage products — in the interest of advocating and promoting healthy eating and healthy lifestyles.
To use a phrase from my speech on Bill C-282 on supply management, policy objectives can be achieved through different means. As legislators, as regulators in the executive branch, the question for any given policy objective is instrument choice. What is the best instrument to use to achieve a particular policy objective?
The instinct of many regulators is to, well, regulate. The instinct of many legislators, including many of us here, is to come up with regulations that solve a problem kind of by dicta — you put a rule, “This shall not be done,” and therefore, it shall not be done. Regulations are not costless, and they are not infallible. Sometimes wrong or outdated regulations are very difficult to unwind, which is why my own preference is for what might be called “light-touch regulation.” This is not a term I invented; it’s a concept that’s advocated by many good-governance bodies, including the Organisation for Economic Co-operation and Development, or OECD. It is simply the idea of finding a form of regulation for a given policy objective that is the least intrusive, that has the best chance of success. I want to stress that part because it is not about lessening the burden on industry or lessening the burden on consumers; it is about finding the best path to achieving the objective that we want to have.
One of the ways in which we can take a light-touch regulatory approach is through the use of standards. You may not be aware, but the world runs on standards. We would not be sitting in this room enjoying the HVAC, the lighting system, Wi-Fi, phones and everything else that makes this building run if it weren’t for standards that have been developed largely by industry, in cooperation with stakeholders, and which have then been incorporated into the practices of the industries that are involved: the electricians, the tradespeople, the plumbers and so on and so forth. They are not in the first instance command-and-control regulations.
I’d like to think that the same light-touch approach based on standards could have been applied in the objective that we have here, which is to limit and, in fact, prohibit the marketing and advertising of food and beverage products to kids under 13.
We do know from industry and from the committee hearings that the industry, together with advertising bodies, tried to come up with codes to address this problem of advertising to children. For many years, they had something called the Canadian Children’s Food and Beverage Advertising Initiative. I think it’s fair to say this was a failure, and the committee provided some evidence to show that it did not work.
The industry then belatedly tried to get its act together by coming up with a tougher code of practice, which they called the Code for the Responsible Advertising of Food and Beverage Products to Children, which only came into effect late last year. It’s, according to them, a mandatory code to which advertisers are required to adhere; otherwise, the broadcasters that put up these advertising items will not be given a licence. There is some debate about how mandatory it is, and I won’t get into that.
I’m not going to second-guess the committee in its judgment that this mandatory code recently developed by industry doesn’t meet the test; this is what our committee has concluded. Perhaps it’s a little too early to come to that conclusion. It has only been in place for less than a year, but the committee was not impressed by it.
I hope, however, that this conclusion of the committee does not close the door on an approach to dealing with the problem of advertising to kids that includes the involvement of industry in coming up with the regulations that will have to be developed if this bill is passed.
I was pleased to hear from the sponsor of the bill that Health Canada officials confirmed that they had every intention of consulting with industry to work on the specific regulations that need to be put in place.
Now, it may be that the industry code currently does not meet the standards that Health Canada is aiming for. But if the code does, in fact, meet or exceed the standards that Health Canada would want to put in command-and-control regulations, there is a case for that very code to be adopted holus-bolus almost through a mechanism that’s called “incorporation by reference.” This simply means taking the work of industry together with stakeholders in coming up with this code, recognizing it meets all of the objectives that we want met — the government and Parliament — and bringing it into the regulation as a way of, on the one hand, acknowledging industry ownership of these requirements, but also putting some onus back on the industry to make sure that these rules and regulations are followed.
I’m simply making an appeal that even as we, I hope, very soon come to a vote on this bill and perhaps pass this bill, we are not sending the wrong message to our capable civil servants at the Canadian Food Inspection Agency and Health Canada and wherever else that this is a licence for them to — this is pejorative; they don’t just dream up regulations, but there is a tendency in bureaucracy to come up with regulations because they are asked to come up with regulations. I’m hoping that by a little intervention here it will encourage them to work with industry, to look at the possibility of incorporation by reference at some stage in the regulatory development process.
Colleagues, that’s all I wanted to say about it. I really respect the work of my colleague Senator Dasko in advocating for this bill, the work of the committee, the report that was tabled. It’s time for us to come to a decision on this bill, and I would respectfully ask that we call the question on it.
I would like to recognize Senator Black. I believe you have a question.
I have a question if Senator Woo would accept it.
Thank you, Senator Woo, for your remarks about the significant work that industry has done — I do appreciate that — and your further remarks about the hope for further industry consultation going forward.
I wonder if you’re aware that between the French and English versions, there are differences in terminology between “marketing” and “advertising” which could actually create more confusion down the road. Are you aware of that?
Thank you, Senator Black, for the question. I’m aware of the advocacy material that you and I and others have received which make that claim. I have no reason to challenge it. My French is not good enough to provide a definitive judgment. It may be something that you want to speak to, but I can’t say much more than that.
If your French and my French isn’t good enough, is it appropriate that somebody else check that out to ensure the French and English versions are identical?
Perhaps Senator Carignan has a view on this, and he would have the French ability. We need to look to our committee. I respect the folks on the committee. I would have hoped they looked at both language versions. If they had had a concern, they would have raised it. Again, I don’t have enough knowledge to make a comment on it.
I have a couple of questions for Senator Woo.
My first question, Senator Woo, is I don’t understand how you align the fact that very recently you voted for a GST pause on junk food, and yet you show such a degree of enthusiasm for this particular bill and how all of a sudden this is going to be the solution to all young children getting addicted to processed sugar.
The other question I have — and it’s very disturbing — and it was admitted by you in your speech that this bill requires regulation, and after the bill passes you have assurances from Health Canada and the government that there will be consultation with industry and, of course, they will flesh out the regulations on this particular bill. Over the last decade, it has become a habit of this government to basically leave regulations out of the debate, out of the equation when we are reviewing legislation, which is very problematic because very often, as we know as legislators, regulation determines the outcome of a particular bill.
We had the same mistake happen with Bill C-11, which we passed in haste in this particular place. Regulations would be taken care of by the Canadian Radio-television and Telecommunications Commission, and a year and a half later, of course, it is a catastrophe and we are still waiting for the regulations.
So the question I have is: Wouldn’t it be prudent for us to make sure that the regulations are attached by the government and the civil service to the bill before we even consider a vote on it?
Thank you for your question. There were questions on three or four different bills in that recitation. First of all, perhaps you will go over the transcript of my speech. I did not express very much enthusiasm for the bill, as I recall. In fact, I talked about how I regretted that more attention was not given to industry views on it. So I’m not sure that your interpretation warrants a response because it does not conform to what I said.
On the broader question of having regulations —
Senator Woo, your time for debate has expired.
I would like to have a chance to finish my thoughts.
Is leave granted?
I am actually not in favour of detailed regulations put in bills. I think it is beyond our expertise to go into the nitty-gritty on many technical issues. I know there is an instinct and a kind of reflex on the part of legislators to want to come up with the very specific regulations pursuant to a bill, but it is not clear to me that we have the expertise to do so.
I come from a philosophical background that our job is to legislate, in relatively broad terms, clear instructions on the direction but not to come up with detailed regulations for bureaucrats to then just follow.
Let me also say that as the Joint Chair of the Standing Joint Committee for the Scrutiny of Regulations, we often see regulations that are perhaps misaligned with the law. Part of that problem is because we are trying too hard with our bills to come up with specific instructions that create problems for bureaucrats when they try to reconcile the purpose of a bill with the regulations that we forced into that bill.
I move the adjournment of the debate.
It is moved by the Honourable Senator Martin, seconded by the Honourable Senator Seidman that further debate be adjourned until the next sitting of the Senate. Is it your pleasure, honourable senators, to adopt the motion?
All those in favour of the motion will please say “yea.”
Some Hon. Senators: Yea.
The Hon. the Speaker: All those opposed to the motion will please say “nay.”
Some Hon. Senators: Nay.
The Hon. the Speaker: In my opinion the “nays” have it.
I see two senators rising. Is there an agreement on a bell?
The vote will take place at 9:53 p.m. Call in the senators.
Honourable senators, to date, third reading of this bill started on December 3. That was last week. Last week, we started third reading. Today, we are asked to vote on it. This bill was not debated tonight before Senator Woo stood, and he said that even he was not scheduled to speak today. As Senator Woo said, this bill has some major flaws. Not the very least of these, which Senator Black pointed out, is the stark difference between the English version and the French version.
Clearly, what the Independent Senators Group, along with the help of a few others tonight, is forcing us to do is not sober second thought. The government is playing right along with it.
They want us to deal with this bill — again, a private member’s bill — and the entire government team not only vote themselves but suggest to others how they should vote. But they are, of course, all independent.
They want us to deal with this bill now for no reason other than to show us that they are the majority and are now in charge.
Senator Saint-Germain wants to force down our throat a bill that has major flaws and major implications for various businesses, without proper debate and without the ability to consult with stakeholders or propose realistic amendments.
There is no urgency around this bill. It has been debated in Parliament for years. A version of this bill was debated in Parliament when the Conservatives were in government. It will not come into effect for months, if not years, even if it were passed tonight.
Colleagues, if we want to be the chamber of sober second thought, we need to press pause. This bill needs to be thoroughly debated. We had the sponsor of this bill speak to us about this a week ago. Let’s do our job as a Senate. Let’s take time to study this bill very carefully.
When we come back in February, the bill will still be at third reading, and we will have ample time to debate it. If we deem it necessary, we will vote on it. But because of the tactics of the majority of the senators here, I have no choice, Your Honour, but to present an amendment to allow us some time to study this bill.