Skip to content

Food and Drugs Act

Bill to Amend--Message from Commons--Motion for Concurrence in Commons Amendments--Debate Continued

March 18, 2019

Hon. Robert Black [ + ]

Honourable senators, today I want to talk about a message from the House of Commons regarding Bill S-228.

This bill, an Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children), was introduced by Senator Nancy Greene Raine in September 2016. It completed the legislative process in the Senate in September 2017 and was sent to the other place at that time.

We received the message currently before us in September of 2018, with two amendments.

I was only summoned to the Senate in February 2018 and so this is my first opportunity to rise on behalf of the agricultural industry to address this legislation.

When I came to the Senate, I brought with me over 30 years of experience in the field of agriculture. In fact, my work in agriculture was the very reason for which I was called to the Senate. Therefore, I look at every piece of legislation we discuss and every issue we examine through the agricultural and rural lens.

How will this affect rural communities? How will this affect primary producers, processors and the agricultural industry overall?

I support the intent of Bill S-228. Let me repeat that: I support the intent of the bill. I also support the study that the Standing Committee on Social Affairs, Science and Technology undertook to address rising obesity rates in Canada.

In addition, I broadly agree with the two amendments sent to us from the other place. The first amendment lowers the age to be considered a child from 17 to 13. The second implements a parliamentary review within five years to examine any unintended consequences of this piece of legislation.

However, because of my agricultural focus, I have a few concerns with the legislation at this time. They have been somewhat reduced based on confirmations given to me by Health Canada, but I still think they are worth putting on the record.

A five-year parliamentary review is a good thing, but if we can avoid consequences that we are already seeing, we should try our best to do so.

As my honourable colleague Senator Seidman stated in this chamber:

Rates of obesity have tripled in Canada since 1980, and one in three children between the ages of 5 and 17 years are either overweight or obese.

Many of us have been receiving correspondence from organizations like the Heart and Stroke Foundation and the Canadian Cancer Society asking for us to pass this legislation as soon as possible for the health of our children. Of course, the health of our children is of utmost importance. I want to ensure that my grandsons, Jackson and Connor, your children, your grandchildren and all Canadians regardless of age have healthy eating habits and that products are not inappropriately marketed to children.

That being said, some problems with this bill arose late in the legislative process during a November 5 meeting between Health Canada officials and agricultural industry stakeholders, concerns which I believe must be put on the record in this chamber.

The first of these issues is the use of the word “unhealthy.” The word appears in the bill six times. Using the word “unhealthy” to describe a certain food can be misleading. As far as I understand, it is not the individual foods we eat but the entire diet that should be looked at. Other countries like Australia, Ireland and the U.K. have laws around marketing to children. However, they use terms such as “unhealthy eating habits” or “unhealthy lifestyles.” They do not reference unhealthy foods. Again, this is because it is not realistic to label certain foods as unhealthy when it is someone’s overall diet we must consider.

If I eat a few slices of cheese, can we say that is unhealthy? No, because we don’t know all the facts. Now, if I eat a few slices of cheese with each meal, we could probably classify that as an unhealthy eating habit.

Classifying an individual food item as unhealthy could give that product a bad reputation here in Canada in domestic markets, as well as in the international markets.

In a letter to my office, the Canadian Federation of Agriculture stated that the use of the word “unhealthy”:

. . . provides international competitors a rationale to unduly demonize Canadian agri-food products.

Not only could this cause confusion for Canadians, but the spin-off effects to our reputation as having a world-class agricultural industry could cause serious economic impacts, both domestically and internationally, to the entire agricultural supply chain.

Fortunately, Health Canada officials have reassured me and my office that the word “unhealthy” will not appear in the regulations and guidance document. They have expressed their willingness to change the terminology. This is a positive sign, but it worries me that the word will still be in the act itself, and the only way to change the terminology would be to amend this legislation.

The second concern I have that is very much related is the 5 per cent limit this legislation imposes on sodium, sugar and saturated fats. Any food that has over 5 per cent content of sodium, sugar or saturated fats would be restricted from being marketed to children. My issue with this number is it seems arbitrary. I have yet to hear a good defence of the 5 per cent figure. No one has been able to tell me exactly where it comes from.

This number has raised concerns in the agriculture industry as well, notably among dairy farmers and grain producers. Food items like cheese, yogurt, bread, cereal and meat — things that are generally considered to be part of a healthy diet — would surpass this limit. Again, Health Canada has reassured me somewhat on this point.

As Senator Petitclerc stated in her speech last month, the first question asked will be: Is this product marketed to children? If it is not, we are told by Health Canada that they will not even look at the percentages and the industry can continue to market them as normal. Only if the product is clearly marketed to children will it be subject to the 5 per cent limit. I guess I can live with that.

Online and in TV advertisements, these products will not be able to be advertised if it is determined that children make up 15 per cent or more of the audience. On the other hand, in physical settings, the act will only apply to areas that are strictly targeted to children. For example, at a fair or exhibition, food products that exceed the 5 per cent threshold would not be able to be advertised in a designated children’s zone. However, according to Health Canada officials, they would be able to be advertised at the fair in general as long as the advertising is not targeted directly to children, such as using a sign featuring cartoon characters or a dancing mascot. This is regardless of the percentage of attendees that are children.

I am not opposed to this point. However, there has been some confusion among stakeholders. Some are still under the impression that the 15 per cent limit will be applied in physical settings as well. Along with some of my honourable colleagues in this place, I hope that Health Canada will make it very clear in the final version of their guidance document and accept to use input from the Canadian Association of Fairs and Exhibitions, the Calgary Stampede and other groups.

My final concern with this piece of legislation, which is possibly the most serious, is the insufficient consultation that has taken place within the agriculture industry. I have heard from Dairy Farmers of Canada, the Canadian Meat Council, the Canadian Federation of Agriculture, 12 grain organizations, Food & Consumer Products of Canada, Restaurants Canada, Ferrero Canada and more. The constant refrain has been that this is not good for agriculture, this will give a bad reputation to certain important agricultural products and that there has not been enough consultation with the agriculture industry and primary stakeholders.

Under this legislation, over 91 per cent of dairy products would be classified as “unhealthy,” as would almost all bread and cheese.

Along with a few of my Senate colleagues, I recently met with representatives from Dairy Farmers of Ontario, Quebec and P.E.I., who assured us that they do not oppose the principle of the bill and, as I have already said, neither do I. We all simply take issue with the use of the word “unhealthy.”

We discussed this issue at our December 6 meeting of the Standing Senate Committee on Agriculture and Forestry. We heard from stakeholders in the grain industry, the Baking Association, Grain Growers of Canada and the National Millers Association. The discussion focused around the sodium content, as most breads marketed today would surpass that 5 per cent limit. Health Canada representatives were also present at that meeting, and they assured the committee that they would meet with stakeholders in the agriculture industry over the following weeks. In February, they had one meeting with the Canadian Federation of Agriculture. However, I fear their consultation with agriculture has not yet gone deep enough. Even if this bill passes, I urge Health Canada to continue to seek feedback from primary producers and others, allowing these groups to have input on the regulations and the guidance document.

Although a parliamentary review after five years will still be valuable, I believe Health Canada should make every effort to hear from those in the industry now, which could reduce the unintended consequences over the next five years.

As I have stated, I have concerns with this legislation. I am somewhat less worried with the commitments from Health Canada that they will not use the world “unhealthy” in the regulations and guidance document, and that they will consult with the agriculture industry throughout the process of drafting the regulations.

Honourable colleagues, I worked with the Chamber Operations and Procedures Office to discuss options to address my concerns. The first option was to amend the bill on the floor of the Senate Chamber. The second was to refer the message to the Standing Senate Committee on Agriculture and Forestry and try to amend it there. All possibilities considered would involve motions that would be adjournable, debatable and amendable, meaning that, based on the current parliamentary calendar, we would need more time. However, as you know, we’re at the eleventh hour here, and I do not want to inadvertently kill this bill. Therefore, I have decided against these options.

Thank you for listening to my concerns, which reflect what I have heard from many in the agricultural industry. If this bill passes, I am going to continue to watch its progress to ensure that Health Canada keeps its promise to engage in meaningful consultation with stakeholders, including primary producers. Thank you.

Hon. Pamela Wallin [ + ]

I have a question, if Senator Black would take one.

Senator R. Black [ + ]


Senator Wallin [ + ]

Thank you. I share your deep concerns about this bill on three fronts: jobs, costs and political promises. There are 65,000 grain producers in this country. That’s a lot of jobs. The bread and bakery industry is a $7.2-billion industry. That’s a lot of jobs. That is one issue we need to be looking at.

On the question of costs, this designation of “unhealthy” makes basic items much more expensive — bread for sandwiches, for kids going to school, for example. This is pretty basic.

My question to you is the following: Should we not be targeting the ingredients, not the end product?

My third point — I’ll put them all out now and let you respond to them, if you could. Around my concerns about political promises, what we have done through the legislative front door with the word “unhealthy” we cannot truly undo through the regulatory back door. The system doesn’t work that way. What’s in the legislation is in the legislation. This is flawed. I don’t think we should be convinced that we can clarify and ameliorate the situation through regulation.

I’d just like your comments on those three things.

Senator R. Black [ + ]

Thank you, Senator Wallin. From my perspective, I agree with exactly what you’re saying, so thank you for sharing that.

With respect to the promises we’ve been given, that I’ve heard from Health Canada, we now know they will not use the word “unhealthy” in the regulations and guidance document. For that, I have to be at least a little pleased, because at one point, it was all throughout that, too.

You’re right: The legislation has the word “unhealthy” six times. I think we should all be concerned about that and watch that over the coming years as things are developed.

Hon. Douglas Black [ + ]

Senator, thank you very much for the tremendous amount of work you have done on this piece of legislation.

My question relates to an organization that you mentioned in your remarks, the Calgary Stampede, which, as everyone in this chamber knows, is the largest outdoor show in the world. This matters to the Calgary Stampede.

Can you give me any comfort, based on your research, that the stampede is going to be able to move forward with the types of activities and selling the types of products they have over the last 100 or 120 years?

Senator R. Black [ + ]

Thank you, Senator Black. It concerns me too. There are over 800 fairs and exhibitions across the country. It’s not just the Calgary Stampede; it’s all of them. With respect to the Calgary Stampede, as we’ve been assured by Health Canada during the meeting on December 6 and afterward, the marketing will not be able to take place if the Calgary Stampede has a children’s zone or area. General marketing can take place outside of that area, as long as they don’t target children under 13. That would mean dancing mascots, clowns or cartoons. But I’m generally assured that they can move forward.

The Hon. the Speaker pro tempore [ + ]

Senator Deacon would like to ask a question, but your time has run out.

Senator R. Black [ + ]

Could I ask for more time, please? Five minutes?

The Hon. the Speaker pro tempore [ + ]

Is it agreed, honourable senators?

Honourable senator, you’ve talked about Health Canada and a number of important groups you’ve been able to meet with. I want to come back to the monitoring and the review piece. To be very clear, what is it you’re looking for from organizations like Health Canada to make sure the interests and concerns you have indicated today are not lost in any kind of way, beyond word-changing and wordsmithing?

Senator R. Black [ + ]

I’ll be monitoring and the thing about which I will be asking the stakeholders I connect with is whether this legislation has negatively impacted the selling of primary products, domestically and internationally, as a result of this legislation. That’s the piece we’ll be looking and watching for. We will be watching that Health Canada doesn’t slip in the word “unhealthy” in various places.

Back to top