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Message from the House of Commons on Bill S-228, An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children)

Message from the House of Commons on Bill S-228, An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children)

Message from the House of Commons on Bill S-228, An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children)

Hon. Terry M. Mercer (Deputy Leader of the Senate Liberals): 

Honourable senators, it is my pleasure to rise today to speak to a message from the House of Commons on Bill S-228, An Act to amend the Food and Drugs Act (prohibiting food and beverage marketing directed at children).

The bill sponsored by our now-retired colleague, Senator Nancy Greene Raine, started back in September 2016, and we received the message from the other place in September 2018. It has taken two years to go through both houses, and it was amended in the Senate and the House of Commons.

I have ushered two private bills through Parliament, National Blood Donor Week and National Philanthropy Day, so I know how hard it is to get a private member’s bill through both houses. The purpose of those bills was to recognize a certain week and a certain day. It sounds simple, but the process is far from it. This bill is different. Such a seemingly small bill will have lasting consequences over the very food we eat, and the food we and our children and grandchildren will be exposed to.

I think it is worthwhile to have a look at it again, especially for the benefit of some of the new faces around this chamber. I think we can all agree with the evidence that obesity rates are too high and that obesity is affecting our children’s futures.

The Standing Senate Committee on Social Affairs, Science and Technology, ably chaired by our former colleague Senator Art Eggleton, did tremendous work on these topics which resulted in the bill that former Senator Nancy Greene Raine proposed.

Canada ranks sixth among industrialized countries in respect of its percentage of children who are obese. I think we all agree that number is far too high and far too dangerous.

This bill amends the Food and Drugs Act to prohibit food and beverage marketing directed at persons under 13 years of age, as originally proposed. You should note that the Social Affairs Committee amended the bill, including an amendment changing the age to under 17 years of age.

As former Senator Nancy Greene Raine told us in her speech at committee report stage, Bill S-228, as originally tabled, prohibited the marketing of food to children under 13 years of age because that is the age limit in Quebec legislation, since passing the Consumer Protection Act in 1980.

That law was caught up in a legal battle and couldn’t officially be declared constitutional by the Supreme Court until 1989. Welcome to Canada. She said:

. . . I now believe that we need to include teenagers in the protection offered by Bill S-228. I will therefore propose an amendment at clause-by-clause consideration of the bill to change the definition of “children” up to age 16.

Based on the new research that confirmed that the way adolescents process advertising is also very problematic. She also stated that she:

. . . learned that amending the Food and Drugs Act, as proposed by Bill S-228, is a long and arduous process. I now realize that the legislation should include the general intent and framework, but that the details should be better left to be dealt with by regulations which can be more easily changed to react to new ways of marketing.

For this reason, I will propose to amend the legislation at clause-by-clause consideration of the bill to limit the prohibition on advertising to children to “unhealthy” food.

The Senate passed the bill as amended and sent it to the other place. Concerns were raised about the effect the bill would have on the sponsorship of community sporting events. Mr. Larry Miller, Conservative MP for Bruce—Grey—Owen Sound, on debate in second reading, said:

While the intent of the bill is something we should all support, and I certainly do, more than one member has talked about its unintended consequences. I met today with members of Canada Soccer and Sports Matters, who are very concerned about programs. Everyone is very aware of the Timbits hockey and soccer programs and a number of others. These could be in severe jeopardy of not complying with this bill if the regulations are not done right. That is a concern.

I, too, share these concerns. These community activities support active living for Canadian children. Isn’t that contradictory to what the bill is trying to achieve, which is lowering obesity rates?

Physical activity is very important for a healthy lifestyle, but it can also be very expensive, which makes these community initiatives very important. Having been on the executive of a number of sports organizations when my son was young, I can attest to that.

Other concerns were raised in the other place about the vague definition of “unhealthy foods.” Honourable senators, what is an unhealthy food? You may say potato chips and French fries, ice cream and the like. However, what about a baked potato or a glass of milk? Are they unhealthy? Is cheese unhealthy because it could be high in sodium and saturated fat, or is it actually healthy because it is a good source of protein and calcium? Is there really such a thing as healthy or unhealthy foods, or should we consider it in terms of healthy and unhealthy diet as opposed to food alone? What does unhealthy even mean?

In an article from National Newswatch just yesterday, I found it interesting that the Canadian Chamber of Commerce added its voice to the food industry’s opposition to the proposed new Health Canada food labels, so-called front-of-package labelling, calling it a costly job-killing move. Chamber President Perrin Beatty and Denise Allen, President and CEO of Food Processors of Canada, sent a joint letter to Prime Minister Justin Trudeau, outlining their objections to the front-of-package labelling — FOPL — initiative of Health Canada:

We are concerned that Health Canada is pressing ahead on FOPL policy in a manner that falls short of your commitment to ensure that government policy is evidence-based.

It went on to say:

The result may be a less effective strategy that also causes inadvertent damage to the very economic growth your government is otherwise working so hard to support.

Again, the government is trying to help us, the consumers, decide what is healthy and unhealthy, but is it actually accurate and will it help? Front-of-package labelling may also not accomplish what it is intended to achieve. Will that initiative, like this bill perhaps, harm the economic engines we need to grow?

Other concerns were raised about the age of limitation to under 17 as opposed to under 13, as was originally proposed, which was then amended to under 17 by the Senate.

Doug Eyolfson, Liberal MP for Charleswood—St. James—Assiniboia—Headingley, in the other place said in committee, while he was moving an amendment to revert it back to 13 as originally proposed by the bill when it started in the Senate:

I’ll simply respond that although I agree that in principle it would be most suitable to have the age of 17, again, there are concerns that this would be subject to a charter challenge, and therefore, the entire bill could be rendered invalid and struck down.

As mentioned, Quebec set a strong precedent for defining children as being under 13 years of age, so the other place changed it back to save the bill.

Concerns were raised over these issues and more, and I happen to agree with them.

Witnesses at committee had a lot to say as well. Mr. Ronald Lund, President and Chief Executive Officer of the Association of Canadian Advertisers, said:

As has already been committed to, amend the age to define children as under 13. Replace all references to “unhealthy food” with the term “foods high in” as a determination by which foods can or cannot be marketed to children under 13. Right now under Bill S-228, positively regarded food products such as apple juice, cheese, and yogurt would be branded as unhealthy. In fact, defining foods as unhealthy is contrary to the current policy and practice. The Food and Drugs Act does not define “healthy”.

Others have suggested that these measures will be outlined in the regulations. This government seems to love things through regulations, like the air passenger bill of rights.

The legislative regime Bill S-228 intends is not fully explained in the bill. Instead, broad discretionary powers are given to the bureaucrats instead of the legislators. The government appears to want to use this Senate bill to meet one of its objectives outlined in the Minister of Health’s mandate letter. However, the actual commitment was to match the Quebec law. As drafted, this bill allows the potential regulatory framework to go much further.

Another witness, Ms. Erica Wiebe, an Olympic gold medallist in wrestling, with the Sport Matters Group, says:

Bill S-228 as currently drafted would mean a substantial drop in private sector contributions to sport at every level, from grassroots to high performance. This in turn would mean cutting off support programs to thousands of children and youth right across the country, and it would substantially marginalize the financial sustainability of an already underfunded Canadian sports system.

That should concern us all greatly.

So the House of Commons amended the bill essentially to change the age back to 13 and added a review clause for five years after Royal Assent to allow the Senate and the house, or both committees, to study the effects of the changes. I am generally supportive of review clauses.

Do we support these amendments that were passed in the other place? We sent the bill to the other place, and they changed it. Do we agree with the changes? Ask yourselves if you know enough about the changes to make a decision on how to vote on this. Consider that there could be unintended consequences of the bill, like the sponsorship of sports. Consider that there could be unintended consequences of letting the bureaucrats run away with the regulations rather than us debating them out.

We are talking about thousands of jobs and hundreds of millions of dollars in investment.

Groups like the Dairy Farmers of Canada, the Western Canadian Wheat Growers Association, the Canadian Meat Council, the Grain Growers of Canada, et cetera, have tremendous concerns about what the unintended consequences of the bill will do the economy. We all realize that the health of children and, indeed, all Canadians is of the utmost importance. But after two years, since this bill was started, things have changed, and these concerns from industry are very alarming.

I do not believe that this bill will actually accomplish what it is intended to do, even after two rounds of amendments in both houses.

While senators may or may not have taken an interest in the bill before, if we are now concerned about the changes the other place has made and even now in the bill itself, ask yourselves if we should at least take the time to study the changes once more to make sure.

I will leave you with that question and my comments. Thank you, honourable senators, for your attention.