Health Committee on March 28th, 2023

[Laila Goodridge, Conservative, Fort McMurray—Cold Lake, AB]

I'm curious on this point now. Would something like ground beef be considered to be prescribed in excess and therefore unable to be marketed to children?

[David Lee]

Again, I think the policy goes by nutrient, so it's really looking at which foods contain a certain nutrient at a certain level. That's really what the regulations will get at. The regulations will say the levels of the ingredients, and there are the three ingredients here: sodium, sugar and saturated fat. Those are the ones we'll assess and then put a level on.

[Dr. Supriya Sharma]

Perhaps I'll add that it would just be focused on the “advertising primarily directed at children” part of that. It wouldn't affect any of these products' abilities to be sold or to be advertised to adults or in a variety of other places. It's really very narrowly focused on advertising of certain products directed towards children.

[The Chair, Liberal, Sean Casey]

We have Mr. Davies and then Dr. Ellis.

[Don Davies, NDP, Vancouver Kingsway, BC]

Thanks.

I see the pros and cons of both. The original text speaks broadly of foods and beverages that contribute to excess sugar. What I like about that is that it's very broad. I suppose it would be difficult for advertisers to know precisely what that is.

The new text has the advantage of being certain. A person could go to the regulations, and they'll see exactly what is prescribed that they can't advertise, but it will be narrower.

I guess the proof is in the pudding. Whether this act is effective or not is going to depend on how comprehensive and accurate the prescribed list is. Can you give us any comfort as to how broad that list will be?

The second part of that question is this: Could there not be a bit of catch-up in that, as industry develops new products that are not on the prescribed list? Will this be an endless attempt by government to catch up to clever advertisers who come up with a new product, and then you have to amend the regulations? Is there any concern about that?

[David Lee]

On the first part, we can't anticipate what the Governor in Council will say yes to, but certainly the department has been looking into the policy to make sure we give effect to the important prohibition, basically, because that's what this refines.

To your point, there may be some changes, but again, we're trying to focus on the nutrients, so if the food contains a certain amount of something, that really triggers us to say that the prohibition applies, and that's what the regulations will do.

[Dr. Supriya Sharma]

I'll perhaps add that this is at the legislative level, so broad is good in one respect. Vague and subject to interpretation can often be a bit problematic, so again, it's excess to how we're defining what a children's diet is. That's why it gets a bit more complicated.

Absolutely, I think what we've seen is that, when you put measures in place, industry shifts to move around them, but having the flexibility to make those changes in regulations is certainly much easier than having it be something that's wired into legislation.

[The Chair, Liberal, Sean Casey]

Go ahead, Dr. Ellis.

[Stephen Ellis, Conservative, Cumberland—Colchester, NS]

Thank you, Chair.

I guess I'll direct this to Dr. Sharma and Mr. Lee.

Am I confused here, or is this going to try to create an exhaustive list of foods? Is milk going to be a part of this?

I see you shaking your heads.

If we're not making a list of prescribed foods, why do we need that in there? Why can't this simply be based on sugars, fat or sodium? I don't understand why “prescribed foods” needs to be in there. As I said, eggs can form an important part of the diet of children. As we know, cow's milk does.

I guess my concern would be that this is going to certainly capture some foods unfairly. It seem duplicitous to put “foods”, and then talk about the levels of nutrients.

Could someone explain that to me, how that's going to work?

In this instance, to me it sounds like you're going to try to make a list of foods, and every sugary candy is going to be on this list. The chance of missing something is significant.

[David Lee]

What we're trying to get at here is not a list of foods. That would be very hard to enforce and keep up with.

It's really the level of nutrients that's going to be the first part of the policy discussion.

To your point, there may be some foods that can have a beneficial effect. That's what we need to see as the regulations go forward—I would turn to Dr. Sharma about that kind of discussion coming in—so that we're really focusing the advertising prohibition on the right set of foods.

We wouldn't be naming foods on a list. That's not the intention.

[The Chair, Liberal, Sean Casey]

Dr. Ellis.

[Stephen Ellis, Conservative, Cumberland—Colchester, NS]

I'm sorry, Mr. Lee, but if we're saying that some foods might be good for children, which I think we can agree upon, there's no way, in this particular piece of legislation, to capture those foods that might be good for children if they are over the recommended amount of fat, for instance.

You mentioned that briefly, but I don't understand how this legislation is going to capture those things that may be unduly prescribed to be on your list.

[David Lee]

If the design was just to say that these are the nutrients we're looking at and here are the levels, that might be true. Because we have “prescribed foods”, that gives us some work to do in the regulations about foods that may not be attracted here, but also the levels.

Those, again, will be the main activities in the regulations.

[Dr. Supriya Sharma]

I'll just add, that's part of the need to clarify the language.

For example, in the proposed language, if it says something “contributes to” increased sugars, that could be almost anything that has sugar in it.

The idea of being able to prescribe them, as Mr. Lee has said, is not that it's going to be a list of chocolate bars and things like that, but it's to put it into categories. Those categories are informed by the nutrition science and what should be in that category. Even beyond those categories, if products are unnecessarily scoped in, there are processes to do exemptions as well.

It's challenging to have the debate without seeing the regulations or the policy developed. That's the notion of having legislation that's enabling and then having a regulatory process that defines those.

Again, it has to speak to the intent of the legislation and the regulations. What you're intending to do in this case is to stop the marketing of products that could potentially contribute to unhealthy lifestyles in children.

[The Chair, Liberal, Sean Casey]

Dr. Ellis.

[Stephen Ellis, Conservative, Cumberland—Colchester, NS]

Thanks very much.

I guess part of it is that there's no definition that says there could possibly be exemptions to the list. That causes me to pause and to understand that maybe that needs to be better defined in the legislation, to say there is a process that's ongoing.

If we're going to talk about exemptions, then I think it really behooves the members of this committee to understand that there could possibly be exemptions to this and, if so, what the process for determining that is. Who's the arbiter thereof, to say there are exemptions? Is there going to be an opportunity for people such as the Dairy Farmers of Canada to make an application to the arbiters thereof?

I think the reason it's germane to bring this up and perhaps belabour something that seems to be small is that we all know that milk, historically, was a significant part of diets in school programs. We've seen that substance banned from certain schools, where it's said children shouldn't have it. However, we all know the protein in milk can form a very important part of a child's diet, even though the fat content may be a cause for concern—I don't know why the discontent or malcontent with milk came about.

I guess that is a modern-day example of what would give me pause. We know there are examples where this has occurred before. There's no mention of how to get an exemption and there's no mention of who the final arbiter and decision-maker is. To me, those are causes for concern.

Perhaps the legal experts will be able to say how we can better rectify that—or not.

[The Chair, Liberal, Sean Casey]

Is that one for the legislative counsel or for the officials?

Dr. Sharma or Mr. Lee can respond.

[David Lee]

In the act, there is a specific way to do exemptions. It's in paragraph 30(1)(j), which is our regulation-making powers. We can make an exemption, but that's always by regulation. The arbiter is always the Governor in Council on those.

With this language, I think it points to our also specifying in regulations which foods would be under the provisions. It wouldn't be a classic exemption, but it helps us sort through which foods would be appropriate.

[Dr. Supriya Sharma]

To add to that, that's the process that's been used for all the healthy eating strategy initiatives. Food labelling goes through that process. Front-of-pack labelling goes through that process.

Where there is a pathway to make those regulations, it's understood that there's then a pathway to potentially entertain exemptions from that, if that needs to happen.

[The Chair, Liberal, Sean Casey]

Dr. Powlowski, the floor is yours.

[Marcus Powlowski, Liberal, Thunder Bay—Rainy River, ON]

I think my question might get to the same source of confusion.

The legislation is the bones. The meat—the specifics—is in the regulations. However, here, within these amendments, there's no reference to the power of the minister to make certain regulations. That's in the Food and Drugs Act itself. Do you have that section? That may clarify some of these things.

The minister, in the act, has the power to make regulations with respect to paragraphs 30(1)(a), (b), (c), (d) and (e), and that's what they're going to use in making these regulations to fill in the substance of this act.

Do you have those sections to tell us what the minister may regulate, or is it a vast, long list?

[The Chair, Liberal, Sean Casey]

It's over to you, Mr. Lee and Dr. Sharma.

[David Lee]

There are several regulation-making powers in the act. Some of them are given to the minister, but it's usually for things like emergencies.

There's a list of Governor in Council regulations in section 30 of the act. That lists pretty exhaustively what the minister can prompt to make regulations about through the process of the Governor in Council.

The exemption power, as I mentioned, is in the Governor in Council. It's not something that the minister has the power to do. The minister can prompt that by making a proposal to the Governor in Council.

[The Chair, Liberal, Sean Casey]

On the speakers list, we have Ms. Goodridge next, and then Dr. Kitchen and Mr. Davies.

Go ahead, Ms. Goodridge, please.

[Laila Goodridge, Conservative, Fort McMurray—Cold Lake, AB]

Thank you, Mr. Chair.

I think that this has opened as many questions as it's answered.

I don't think this is the right time to do this, but I'd like to bring forward an amendment to have exclusions directly clarified, so that single-item food products could be excluded, like eggs or milk. Some of our produce could very clearly be excluded right off the hop, because I think that would clarify some things for our agricultural producers, which produce some of the best agriculture in the world right here. They direct to children.

It is healthy and it is important to signal that it's “all things in moderation”. I go back to what my grandma used to always tell us. Things in moderation are important. If you feed your child all eggs, that's not healthy. If you feed them all milk, that's not healthy. Eggs and milk contribute to a healthy diet for many children.

I think that's a piece. I'm sure the legal counsel is saying that it's not an appropriate time to bring forward this amendment.

I'm wondering if you could clarify whether something like that would be appropriate in this section of the bill.