Law Times

Page 4 March 26, 2018 • Law TiMes www.lawtimesnews.com NEWS NEWS NEWS Junk food ad bill raises big trademark law questions BY DALE SMITH For Law Times A Senate bill to limit ad- vertising on junk food to children is now at committee in the House of Commons and has the support of the government. Intellectual property lawyers are concerned that the bill lacks details about how unhealthy foods are defined and how they will be restricted, depending on regulations that have not yet been drafted, and it could have grave implications to rights holders with the uncertainty contained in the bill. Clients face up to two years of uncertainty around what will be allowed until the bill is due to come into force, lawyers say. Bill S-228, short-titled the Child Health Protection Act, was drafted by Conservative Senator Nancy Greene Raine, but it has since gained the ap- proval of the federal Liberal gov- ernment as it has embarked on a broader reform of nutritional guidelines and food labelling in Canada. "There's considerable uncer- tainty at the moment in terms of the scope of these proposed regulations," says Susan Beaubi- en, a lawyer with Macera & Jarzyna LLP in Ottawa, who specializes in intellectual prop- erty as well as federal regulation with food and drugs. "It's concerning that, as pres- ently framed, it looks as if there will be considerable discretion given to Health Canada to make determinations as to whether a food is considered to be 'healthy' versus 'unhealthy' and how the advertisement is considered to be directed to children or not," says Beaubien. She says the bill will be of great concern to marketing and advertising lawyers, trade- mark lawyers and trade lawyers, given that it could also become a NAFTA issue, as the American government is already pushing back against labelling require- ments from other countries af- fecting U.S. products. While the bill's preamble is lengthy, setting out the intent of the bill, the text itself is a mere six clauses, mean- ing that the actual contents will come by way of regulation over a period of two years. Sara Zborovski, partner with Norton Rose Fulbright Canada LLP in Toronto, says Health Canada began consulting on restricting unhealthy food and beverage marketing to children last summer. The federal department's "Consultation Report: Restrict- ing Marketing of Unhealthy Food and Beverages to Chil- dren in Canada" gives a bit more guidance to what could be in the regulations, she says. "In their report, Health Can- ada proposed a certain defin- ition about child-directed ad- vertising," says Zborovski. She says she suspects there will be a similar approach for junk food advertising as was taken with tobacco advertising, for which there is a lot of case law, but Zborovski adds that there is little case law around advertising food products, com- pared with tobacco products. Beaubien says the bill is odd in the way in which it uses the Food and Drugs Act, adding that the advertising prohibition to a section of the act related to the unsanitary manufacture of food. As well, that act is a penal bill with criminal penalties, which may be seen as overbroad for ad- vertising violations. "The regulations will be extremely important," says Beaubien. "Right now, it is unknown whether the scope of the legis- lation will be limited to 'junk food' or whether any food can be designated as 'unhealthy' by Health Canada." Beaubien points to conf lict- ing studies about the benefits or harms of certain foods, adding that, currently, there is no indi- cation as to what the criteria will be for a food to be deemed un- healthy or not. Zborovski says the unhealthy food guidelines will probably re- volve around salt, sugar and sat- urated fats, though there may be pushback when it gets to issues regarding processing or serving sizes, which can be more sub- jective. She also notes that the act already has a broad defin- ition around advertising that is already overseen by Health Canada, which gives a certain amount of jurisdiction to third- party self-regulating industry bodies such as Advertising Stan- dards Canada. "They authorize ASC to give clearance opinions and to over- see advertising for television, but Health Canada retains ultimate jurisdiction," says Zborovski. She adds that this bill will be difficult for industry to push back against, as it could paint those companies as being un- concerned about childhood obesity. "I would not recommend a client taking on and waving that f lag, and the clients that I work with support the initiative in a general sense," she says. "I think it's going to be, for the next five years, industry and their counsel balancing risks and opportunities in a very un- certain environment." Cynthia Rowden, counsel with Bereskin & Parr LLP in To- ronto, says the bill as originally introduced contained more de- tail but that comments made by groups including the Intellectual Property Institute of Canada and the International Trade- mark Association suggested it was too far-reaching. "It had much more of a refer- ence to trademarks that should or should not be permitted to be on products, and all of those details came out when the bill was given third reading in the Senate," says Rowden. LT Sara Zborovski says there is little case law around advertising food products, com- pared with tobacco products. © 2018 Thomson Reuters Canada Limited 00251BY-92340-CE GET ALL YOUR CPD WITH THE TORONTO LAWYERS ASSOCIATION Register now at tlaonline.ca Litigation Funding for Commercial Claims in Canada Nutshell followed by a Wine & Cheese Soirée WHEN Tuesday, April 17 Seminar 5:15 – 7:00 p.m. Soirée 7:00 – 8:00 p.m. SPEAKERS Naomi Loewith Bentham IMF Capital Lauren Tomasich Osler Margaret Waddell Waddell Phillips Fostering Women Leadership in the Legal Profession Nutshell followed by a Wine & Cheese Soirée WHEN Thursday, May 10 Seminar 5:30 – 6:30 p.m. Soirée 6:30 – 7:30 p.m. SPEAKERS Fernando Garcia GC, Nissan Canada Arleen Huggins Koskie Minsky LLP Kerry O'Reilly Wilks Vale Leola Pon GC Toronto District School Board Untitled-5 1 2018-03-20 1:43 PM

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