What’s on the Menu: Nutrition in Public Health Striking A Balance – Weigh-In with Knowledge, Research,

Education and Practice Symposium30 September 2013

Speaking notes ofBill Jeffery, LLB, National Coordinator

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Our Motivation:Diet-related disease causes real, avoidable

deaths and economic loses, both on a grand scale. For example, in Canada…

• An average of nearly 5 years of healthy life expectancy is lost due to six diet-related risk factors. (See: World Health Organization, The World Health Report 2002, (Geneva: WHO, 2002). Esp. see Table 4 in the annex which shows that loss of healthy life expectancy due to all risk factors is 9.4 disability-adjusted-life-years averaged for Canadian men and women at http://www.who.int/whr/2002/en/whr2002_annex4.pdf) and Table 10 which shows that, in developed countries, 50% of all-risk-attributable Disability-Adjusted Life Years (DALYs) were lost due to blood pressure, cholesterol, overweight, low fruit and vegetable intake, and certain rare types of childhood and maternal undernutrition at http://www.who.int/whr/2002/en/whr2002_annex9_10.pdf). So, 50% of 9.4 years is 4.7 years.)

• And estimated 48,000 premature deaths annually are caused by diet-related disease due mainly to cardiovascular disease, diabetes, and certain cancers caused by excess sodium intake, risky blood cholesterol and glucose levels, inadequate fruit and vegetable intake, and excess abdominal body fat. World Health Organization. Global Health Risks: Mortality and burden of disease attributable to selected major risks. 2009. W.H.O. Geneva. See, esp. p. 17. Available at: http://www.who.int/healthinfo/global_burden_disease/GlobalHealthRisks_report_full.pdf Statistics Canada. Mortality, Summary List of Causes. 2008. Ottawa. Catalogue no. 84F0209X which indicates the total number of deaths in 2008 was 238,617, 20% of which is: 47,723. Available at: http://www.statcan.gc.ca/pub/84f0209x/84f0209x2008000-eng.pdf See, for example, the extrapolation from published figures in endnote 11 at: http://cspinet.org/canada/pdf/Eng_CSPI_Finance.pdf which, through crude, is also consistent on a per capita basis with the 365,000 annual US deaths attributed to poor diet and physical inactivity. (cf. Mokdad AH, et al, “Actual Causes of Death in the United States, 2000” 291(10) Journal of the American Medical Association 1238-1245, and 293(3) pp. 293-4, 298. See also, the Drummond Commission Report (2012), recommendation #5-85 at http://www.fin.gov.on.ca/en/reformcommission/chapters/ch5.html#ch5-o

• A total of $5-30 billion per year is lost from the Canadian economy as a whole (avoidable health care costs and lost productivity) Public Health Agency of Canada. Obesity in Canada. 2010. Ottawa at 28-29. Available at: http://www.phac-aspc.gc.ca/hp-ps/hl-mvs/oic-oac/assets/pdf/oic-oac-eng.pdf; Anis AH, Zhang W, et al. Obesity and overweight in Canada: An updated cost-of-illness study. Obesity Reviews. 2009;11(1):31-40; Behan DF, Cox SH, et al. Obesity and its Relation to Mortality and Morbidity Cost. December 2010. Committee on Life Insurance Research. Society of Actuaries. University of Manitoba. Winnipeg.

Overarching Disease Reduction Goal:

• WHA: NCD deaths 25% by 2025 or 48,000 fewer deaths annually – approx. 190,000 Canadian deaths annually due to NCDs; – approx. 100,000 due to alcohol+tobacco+diet; – Approx. 48,000 deaths due to poor nutrition.

• Probably requires taking all the measures CSPI advocates (plus stronger action on tobacco, alcohol control), e.g.

– halve sodium levels in food supply, – eliminate synthetic trans fats, – ban commercial ads targeting children, – improve nutrition labelling on the front of food packages,– reform food taxes to promote, not discourage healthy eating,– make Canada’s Food Guide more persuasive and more consistent with science,– Mandate sensible nutrition standards for school foods and subsidize school meals to a level

more in keeping with other OECD countries– spur other changes in procurement;– mandate calories, high-sodium notices on restaurant menus

Heart and Stroke Foundation’s Make the Last 10 Years Count

How we advocate public health nutrition law reforms

• Publish: Nutrition Action, policy reports, journal articles, op-eds, book chapters, briefing notes, technical briefs, news releases, etc.

• Testify: before legislative committees, esp. House of Commons Standing Cttee. on Health and the Codex Food Labelling Cttee (based on World Health Org., U.S. Institute of Medicine, United Nations, OECD, Supreme Court, etc., etc.)

• Media: interviews for print, and broadcast media • Participate: in formal advisory committees, e.g., the Trans Fat Task Force, Sodium

Working Group• Meet elected officials and government bureaucrats: esp. at Health Canada, Canada

Food Inspection Agency, and increasingly in provincial and municipal health authorities• Mobilize supporters: meet, call, and write NGOs, experts and grassroots supporters to:

– seek their advice (and share ours),– mobilize their support (and offer ours), and– (occasionally) enlist their financial support for our conferences

• Convene: conferences of experts, policy-makers and journalists

E.g. Campaign #1Conflicts of Interest Coalition/Network

159 groups and networks representing 2,000+ NGOs

E.g. Campaign #2:70 community leaders (w/ 8 millions Canadian members)

Bill C-460, Sodium Reduction Strategy for Canada Actfailed 147-122 vote May 8, 2013; the end of the beginning…incl.

a role for provinces

Mobilize Supporters:Sodium Reduction Bill

60+ NGO and expert supporters (w/ links to at least 2/3 of households)

E.g. Campaign #3Int’l standard-setting may lead the way

E.g., Campaign #4Trans Fat Regulations could…

Prevent 1,000+ deaths per yearAverage of $250 M-$450 M

E.g. Campaign #5 School Food Nutrition Standards

& Subsidies (4¢$1.30 but universal?)

Featured Campaign “A”: Federal Bill, C-430, to restrict advertising to children

(as Quebec legislature has done since 1980)

• Call for supporters• Debate and vote as early as

the conditions are right• How will Liberals vote?• How will 5 Quebec

Conservative MPs vote?

Undoing the harm of advertising to children:

Prevent gate-crashing? (Quebec approach)

-or- Skim worst junk food ads?

(UK approach)

Policy Context in Quebec

•Consumer Protection Act, R.S.Q., c. P-40.1 o Section 248. Subject to what is provided in the

regulations, no person may make use of commercial advertising directed at persons under thirteen years of age.

o Section 249. To determine whether or not an advertisement is directed at persons under thirteen years of age, account must be taken of the context of its presentation, and in particular of

(a) the nature and intended purpose of the goods advertised; (b) the manner of presenting such advertisement; (c) the time and place it is shown.

•Where children consist of 15% of the audience

• Sections 87–91 of the regulations (permitting magazines to carry certain advertisements provided they satisfy sixteen criteria designed to limit the exploitation of vulnerable children).

Quebec Approach:Bigger impact on Francophone kids?

• 4-fold as many TV food ads seen by minority English children in Quebec compared to French children

• Unclear from study what share of large number of ads seen in Quebec were examples of border leaking, law violations, or regulatory loopholes

Quebec Approach:

Dhar T and Baylis K, American Journal of Marketing. 2011

• Decrease in purchase propensity by 13% per week reduced fast-food consumption by US $88 million per year

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Quebec Approach: Data on health impact of the ban is scarce and speculative, but see:

Sarah Carr, Overweight in Canadian Children, Mapping the Geographic Variation (M.Sc. Thesis), London School of Hygiene and Tropical Medicine, 2004. Based on Data made

available to the author from Refreshments Canada and Statistics Canada (Catalogue 91-002, 91-210). Figure 25: Soft Drink Consumption (1978-2000)

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1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000

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More advertising overall in Canada outside Quebec?

• 1991-28% = food advertisements-4.9 food advertisements/hr-High in fat and alcohol, low fibre

• 2006-15% = food advertisements

-5.1 food advertisements /hr- High in fat, sodium, low fibre- Decrease in fruit and vegetables,

juices, other beverages, meats, spreads and chewing gum

- -Increases in milk, milk products, meals, restaurants

Adams et al.(2009). Changes in food advertisements during prime-time television from 1991 to 2006 in the U.K. and Canada. British Journal of Nutrition. 102, 584-593.

McDonald’s Ad: Ontario(from Monique Potvin Kent)

McDonald’s Advertisement- Quebec (French)

(from Monique Potvin Kent)

UK Approach:Proportion of food ads for High Fat Sugar and Salt

down from 4/5 to 3/5 (http://stakeholders.ofcom.org.uk/binaries/research/tv-research/hfss-review-final.pdf )

UK Approach: European Congress on Obesity Research,

Liverpool, May 2013

• The overall percentage of UK child-directed food advertisements decreased slightly, from 13% in 2008 to 11.7% in 2010, and there was less advertising of both core foods (25.5% to 19.1% of food advertising) and noncore foods (64.2% to 57.6%).

• Increases took place, however, in the proportion of ads promoting confectionery (8.8% to 10.7%), full-fat dairy products (3.9% to 8.7%), and high-fiber/low-sugar breakfast cereals (7% to 8%).

More disappointing news from the UK (WHO Regional Office for Europe. Marketing of foods high in fat, salt and sugar to children: update 2012–2013. 2013 at

22 and 24. Available at: http://www.euro.who.int/__data/assets/pdf_file/0019/191125/e96859.pdf )

WHO-Europe:• spending on HFSS ads

targeting children declined 2008-2012 in the UK, volume of exposures to advertising actually rose during that period.

Jurisprudence, scientific evidence & expert opinion

about the vulnerability of children to commercial advertising

Irwin Toy company challenge, 1980-1989(Attorney General of Québec v. Irwin Toy, Ltd., [1989] 1 S.C.R. 927.)

Official court report: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/443/1/document.do Searchable court report: http://www.canlii.org/en/ca/scc/doc/1989/1989canlii87/1989canlii87.html

Highlights:• “...advertising directed at young children is per se manipulative.

Such advertising aims to promote products by convincing those who will always believe.”

• Supreme Court of Canada accepted the following explanation of the objective of the legislation: “The concern is for the protection of a group which is particularly vulnerable to the techniques of seduction and manipulation abundant in advertising.” (p. 987).

• Ban is a permissible limit on commercial freedom of expression under the Charter of Rights and Freedoms (Irwin Toy, 1989, p. 1,000).

• The court relied heavily on the 1981 U.S. Federal Trade Commission’s report entitled Final Staff Report and Recommendation, In the Matter of Children’s Advertising. The report concluded that:

• – the specific cognitive abilities of young children lead to their inability to fully understand child-oriented

television advertising, even if they grasp some aspects of it. They place indiscriminate trust in the selling message. They do not correctly perceive persuasive bias in advertising, and their life experience is insufficient to help them counter-argue.… As a result, children are not able to evaluate adequately child-oriented advertising. (Irwin Toy, 1989, p. 988).

Reaffirmed in 2004 in Brian Wilcox, Task Force Chair, Report of the APA Task Force on Advertising and Children (Washington, DC: American Psychological Association, February 20, 2004) (http://www.apa.org/pi/cyf/advertisingandchildren.pdf )

Jeffery B. The Supreme Court of Canada's Appraisal of the 1980 Ban of Advertising to Children in Quebec:Implications for "Misleading" Advertising Elsewhere.” 39 Loyola of Los Angeles Law Review 237-276 (2006).

http://www.ftc.gov/os/comments/foodmktgtokids-pra/526194-00009.pdf

General Common Law (Attorney General of Québec v. Irwin Toy, 1989, p. 990).

The Supreme Court of Canada, in Irwin Toy, summarized the unique status of children in the common law as follows: – “viz. to protect a group that is most vulnerable to

commercial manipulation … [is] reflected in general contract doctrine.… Children are not as equipped as adults to evaluate the persuasive force of advertising and advertisements directed at children would take advantage of this”

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G. Hastings, Et Al., Review Of Research on the Effects of Food Promotion to Children, prepared for the UK Food Standards Authority, (London: UK FSA, and Glasgow, Scotland: Centre for Social Marketing, University of

Strathclyde, 2003), 19, 87-8, 138 at http://www.food.gov.uk/multimedia/pdfs/foodpromotiontochildren1.pdf

• Seminal systematic review of English literature on advertising directed at children concluded:

– foods marketed to children tend to be of very low nutritional value;

– that there is reasonably strong evidence of that food promotion affects both brand and category preferences, and evidence of a strong effect of food promotion on children’s purchasing and purchase-related behaviour

– at around age eight, children are just “beginning to respond to advertising in a more sophisticated way” and that children’s ability to retrieve and process information is still developing between the ages of eight and twelve (pp. 35–36).

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And another systematic analysis of 123 eligible studies: Inst. of Med. of the Nat’l Acads. of Sci., Food Marketing to Children and Youth: Threat or Opportunity

(J. Michael MgGinnis et al. eds., 2006) [in press] . See the exec. summ. at http://www.nap.edu/execsumm_pdf/11514.pdf

• Children begin to develop

cognitive skills at age 8 to ascertain commercial intent of advertising -- passively until age 11 (or older?);

• little research on children aged 12-18

• Recommend federal legislation for TV and cable ads if voluntary efforts to “shift away from high-calorie, low-nutrient foods” are unsuccessful.

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American Psychological Association2004 Report of the APA Task Force on Advertising and Children,

(Brian Wilcox, Task Force Chair). Washington, DC: APA. On the World Wide Web at http://www.apa.org/pi/cyf/advertisingandchildren.pdf

Children, because they are still maturing, have very poor cognitive defences against commercial advertisements (APA, 2004, pp. 6–7).

“the ability to recognize persuasive intent does not develop for most children before 8 years of age.… Even at that age … such capability tends to emerge in only rudimentary form” (APA, 2004, p. 9).

“Further investigation is needed to establish the upper age boundary of children who are uniquely vulnerable to televised commercial persuasion as a function of normative developmental limitations on their information-processing capabilities...[T]he evidence points directly to one fundamental concern: that advertising targeting children below the ages of 7–8 years is inherently unfair because it capitalizes on younger children's inability to attribute persuasive intent to advertising. As a result of this limitation, children below this age comprehend the information contained in television commercials uncritically, accepting most advertising claims and appeals as truthful, accurate, and unbiased.

Key, Relevant Canadian Federal Laws

Competition Act:• subsection 9(1) of the

Act, itself, requires citizens to be at least 18 years old to petition for an investigation of misleading/deceptive advertising.

Evidence Act:• s. 16 creates a

presumption that children under the age of fourteen are not reliable witnesses

• See also the Supreme Court of Canada ruling in Kendall v. The Queen (1962).

Justice for Children and Youth survey of Ontario and federal laws

(http://www.jfcy.org/PDFs/AgeBasedLawsJune2012.pdf )

• Of nearly 70 age-delimited legal milestones (rights and responsibilities), only 3 vest in children under age 12: – the statutory right then duty to attend school from

age 4 (or 5) then 6, respectively, – the authority to withhold consent to be adopted

at age 7

Age of Majority and Accountability Act, (Ontario) R.S.O. 1990, c. A.7

• the age of majority is 18 (down from 21, generally, in common law)

• five of the other nine provinces set it at 19 • United Nations International Convention on

the Rights of the Child = 18• minors may enter into binding (enforceable)

contracts for the “necessities of life”

(ONTARIO)Relevant provincial limits on misleading, deceptive advertising analogous

to the federal Competition Act Consumer Protection Act, S.O. 2002, C. 30False, misleading or deceptive representation14. (1) It is an unfair practice for a person to make a false, misleading or deceptive representation.

Unconscionable representation15. (1) It is an unfair practice to make an unconscionable representation. 2002, c. 30, Sched. A, s. 15 (1).(2) Without limiting the generality of what may be taken into account in determining whether a representation is unconscionable, there may be taken into account that the person

making the representation or the person's employer or principal knows or ought to know,(a) that the consumer is not reasonably able to protect his or her interests because of disability, ignorance, illiteracy, inability to understand the language of an agreement or similar

factors;…

Unfair practices prohibited17. (1) No person shall engage in an unfair practice. 2002, c. 30, Sched. A, s. 17 (1).Liability(12) Each person who engaged in an unfair practice is liable jointly and severally with the person who entered into the agreement with the consumer for any amount to which the

consumer is entitled under this section. 2002, c. 30, Sched. A, s. 18 (12).

Ministry receives complaints and makes inquiries105. The Ministry may,(a) receive complaints concerning conduct that may be in contravention of this Act, of other legislation for the protection of consumers or of any other prescribed Act, whether

the conduct constitutes an offence or not; and(b) make inquiries, gather information and attempt to mediate or resolve complaints, as appropriate, concerning any matter that comes to its attention that may be in

contravention of this Act, of other legislation for the protection of consumers or of any other prescribed Act, whether the matter constitutes an offence or not. 2002, c. 30, Sched. A, s. 105.

False, misleading or deceptive representation109. (1) If the Director believes on reasonable grounds that any person is making a false, misleading or deceptive representation in respect of any consumer transaction in an

advertisement, circular, pamphlet or material published by any means, the Director may,(a) order the person to cease making the representation; and(b) order the person to retract the representation or publish a correction of equal prominence to the original publication. 2002, c. 30, Sched. A, s. 109 (1).Penalties(5) An individual who is convicted of an offence under this Act is liable to a fine of not more than $50,000 or to imprisonment for a term of not more than two years less a day, or

both, and a corporation that is convicted of an offence under this Act is liable to a fine of not more than $250,000. 2002, c. 30, Sched. A, s. 116 (5).

McDonald’s

• In an effort to foil an effort to unionize employees, McDonald’s once argued that people lack of legal capacity to enter contracts (like contracts for the sale of food) should undermine the capacity of some of its teenage employees to sign hold union cards

(Wilson J, Wilson on Children and the Law, § 5.39, 3d ed. 1994).

Lessons learned from Canadian provincial appeal court rulings on

“misleading advertising” • ads targeting children must consider “misleading” from the

“objective” (not “subjective”) viewpoint of the ad’s intended target (i.e., not just by applying an adult’s logical literal analysis of claims), and

• as interpreted by persons of “average” abilities appropriate to the circumstances (not by well-informed or sophisticated persons) (R. v. Cunningham Drug Stores, 1973; R. v. Imperial Tobacco, 1971; R. v. International Vacations, 1980, p. 284; and R. v. Suntours Ltd., 1974, p. 181).

• THEREFORE To respect these appeal court rulings, it seems plain that courts should consider developmental psychology research demonstrating the unique vulnerability of children to commercial advertising.

And the foreseeable permeability of a nutrient-based limit on ads

Dec 2012 US Federal Trade Commission f/u report

ENORMOUS loopholes ($318 B/$534 B=60%) in nutrient based ad limits

(e.g., w/ brand promos , ads for diet drink, or restaurant venue/trophy foods)

ENORMOUS loopholes ($379 B/$613 B=62%)in nutrient based ad limits

(e.g., w/ brand promos , ads for diet drink, or restaurant venue/trophy foods)

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Who comprise Concerned Children’s Advertisers?(See: http://cca-kids.ca/about_who/members.html)

Food• Nestlé Canada Inc.• Pepsi-QTG Canada Inc.• Coca-Cola Ltd.• McDonald's Restaurants of Canada Limited• Cadbury Adams Canada Inc.• McCain Foods (Canada)• Campbell Company of Canada• Frito Lay Canada• General Mills Canada Corporation• Kellogg Canada Inc.• Kraft Canada Inc.• Unilever Canada• Weston Bakeries Limited

Media• TELETOON Canada Inc.• Buena Vista Home Entertainment (Disney)• Corus Entertainment (YTV & Treehouse)• CTV Television Inc.• Global Television Network

Toys• Mattel Canada Inc.• Mega Blocks Inc.• Zenith Optimedia Canada• Hasbro Canada Corporation

For Children's Healthy Active Living Program: • Hershey Canada Inc.• Canadian Sugar Institute• Confectionery Mfrs Assn. of Canada• Food and Consumer Products Canada

A conservative MP on media literacy for children (Oct 19, 2006, House of Commons Standing Committee on Health)

• Asking a young child to see through that with their x-ray eyes, to see that they're being targeted, is sort of like child-proofing your kid on the street. Rather than get the bad guys off the street, we'll just teach kids how to recognize the good guys and the bad guys.

• I have to say that I'm a little bit cynical about that kind of approach. Obviously there is a role here, and what we're doing doesn't seem to be effective.

Featured Campaign “B”: Sodium and calories on restaurant menus

Street intercept study of 8,000 New Yorkers visiting restaurants

Experts, Health and Citizens’ Groups Call on Governments to MandateNutrition Information on Menus at Outlets of Large Chain Restaurants

full text: http://cspinet.org/canada/pdf/expert_ngo.jointletter.menu-labelling.pdf

Supporters, over the years(70+ groups have supported various bills in the past)

NGOs• Alberta Public Health Association• Alliance for the Prevention of Chronic Disease

(Manitoba)• Canadian Diabetes Association• Canadian Public Health Association• Canadian Stroke Network• Canadian Women’s Health Network• Canadian Council of Cardiovascular Nurses• Centre for Science in the Public Interest• CancerCare Manitoba • Childhood Obesity Foundation• Coalition québécoise sur la problématique du poids• DAWN (DisAbled Women's Network) Ontario• Dietitians of Canada• Fitness Industry Council of Canada• Hypertension Canada• Ontario Home Economics Association• Physicians for a Smoke-Free Canada• Prevent Cancer Now Board

• Public Health Physicians of Canada• Québec en Forme• Sport Matters Group, Ottawa, ON• University of Ottawa Heart Institute

Experts• Dr. Yoni Freedhoff, MD CCFP Dip ABBM, Medical Director,

Bariatric Medical Institute• Leslie Beck, RD, Leslie Beck Nutrition Consulting Inc.• Dr. Kim Raine, PhD, RD CIHR/HSF Applied Public Health

Chair• Dr. Norm Campbell, HSFC CIHR Chair in Hypertension

Prevention and Control

Other Groups Backing Gelinas Bill

Ontario Medical Association Heart and Stroke Foundation (Ontario) Registered Nurses Association of Ontario Dr. David McKeown, Medical Officer of Health for Toronto

The Chorus in Torontoon April 29, 2013

City CampaignsIn Toronto

since June 2013

In Ottawa starting October 17th

Federal Government Consultation on Food Labelling

…but “out of focus”• nutrition labelling and health

claims requirements

• And, “The CFIA will introduce a web-based label verification tool that encourages consumers to bring validated concerns directly to companies and associations for resolution.”

2012 Federal Budget, Budget Plan. Available at:

http://www.budget.gc.ca/2012/plan/pdf/Plan2012-eng.pdf

What’s next for menu labelling?

• Menu labelling by-law proposal before Toronto City Council February 19-20, 2014

• Bill 59, Healthy Decisions for Health Eating Act, a debate and vote in Ontario legislature around February 18, 2013

• Ottawa City Council/Board of Health?• Health Canada led “Federal Provincial, Territial Task Force

on Nutrition Information in Restaurants and Foodservice Establishments” (unpublished TOR) to recommend in 2015

• CFIA food label modernization consultation concludes spring 2015

4th Biennial

Championing Public Health Nutrition Ottawa, November 2014

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Contact info:

Bill Jeffery

Centre for Science in the Public Interest

Suite 2701, CTTC Bldg.

1125 Colonel By Drive

Ottawa, Ontario K1S 5R1

bjeffery@cspinet.org

Tel.: 613-244-7337

www.cspinet.ca/