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Guest Post: A Lawyer Weighs In On Canada's Proposed Kid Ad Ban
Early last week there was a surprising piece in Blacklock's Reporter that suggested that Canada may be reconsidering its plans to ban the advertising of junk food to children (an election piece of Prime Minister Trudeau's and part of Health Minister Philpott's mandate letter). After seeing it, I contacted Canadian public health lawyer Jacob Shelley and asked him if he'd be so kind as to share his legal thoughts. He kindly agreed.
Restricting food and beverage marketing to children has long been identified as a necessary public health strategy to reduce diet-related chronic diseases, including obesity. It is a strategy endorsed by the World Health Organization and has been the focus of the Stop Marketing to Kids Coalition in Canada over the past few years (the Coalition has called for the implementation of its Ottawa Principles, which bans food advertising to youth and children under 16). Not surprisingly, there was considerable excitement in the public health community when Prime Minister Justin Trudeau identified “introducing new restrictions on the commercial marketing of unhealthy food and beverages to children, similar to those now in place in Quebec” as a top priority for protecting public health in his Minister of Health Mandate Letter.

Québec’s Consumer Protection Act prohibits, with some exceptions, all commercial advertising to children under thirteen years of age (s. 248). In 1989 the Supreme Court of Canada upheld the Québec ban as a constitutionally valid limitation on the freedom of expression, protected by section 2(b) of the Charter of Rights and Freedoms in the seminal case of Irwin Toy v Québec.

In Canada, expression is considered a “fundamental freedom”, and because of its importance, the courts have consistently held that section 2(b) requires a large and liberal interpretation. Commercial speech, which includes advertising, is among the types of expression that the Charter seeks to protect. The courts have held that commercial expression serves an important public interest, one that goes beyond its economic value, because it allows consumers to make informed choices. Even so, the government can impose restrictions on expression. A limitation on the freedom of expression can be justified if the government is able to demonstrate that it is reasonable, an assessment based on the Oakes test.

This is what occurred in Irwin Toy, where a majority of the Supreme Court found that the Québec ban was justified, even though it infringed on the freedom of expression. The Court was particularly concerned about the vulnerability of children to advertising. It held: “the evidence sustains the reasonableness of the legislature's conclusion that a ban on commercial advertising directed to children was the minimal impairment of free expression consistent with the pressing and substantial goal of protecting children against manipulation through such advertising.”

Since Irwin Toy, the Supreme Court has upheld other bans on commercial speech, most notably, commercial speech related to tobacco products. In Canada v JTI-MacDonald, the Court unanimously held that the restrictions placed on tobacco advertising and marketing were justified restrictions on the freedom of speech. Of particular note, the Court held, “when commercial expression is used for the purpose of inducing people to engage in harmful and addictive behaviour, its value becomes tenuous” (para 47).

Through Irwin Toy and JTI-MacDonald, the Canadian jurisprudence clearly establishes that (i) children are vulnerable and need to be protected from manipulative advertising and (ii) commercial expression that induces harmful behaviour(s) has tenuous value. It would seem apparent, then, that restricting advertising to unhealthy food products to children – the strategy the government appears to have adopted – is relatively low-hanging fruit. After all, the government could do more, as Irwin Toy involved restricting all advertising directed to children. While there may be some details to iron out – such as what age should the ban use and determining what constitutes unhealthy foods – the overall strategy seems to be in accordance with Canadian law.

Thus it was surprising to read that Health Canada may be backing away from meaningful restrictions on food advertising to children out of fear of industry lawsuits (note: this has not been confirmed or reported elsewhere).

UPDATE: Health Canada was kind enough to tweet a response after this article was posted. What is there to be afraid of, exactly? Certainly industry lawsuits were expected the moment PM Trudeau penned his mandate letter. It would be unrealistic to expect the food industry to accept any governmental oversight of advertising to children – kids are big business, after all, and restricting food advertising to children will have a discernable impact on the industry’s bottom line. The industry is not interested in any regulation.

To avoid regulatory interference, the industry has created its own self-regulatory framework that it frequently touts. It includes the Broadcast Code for Advertising to Children and the Canadian Children’s Food & Beverage Advertising Initiative (this is in addition to individual corporate promises). Such frameworks are often considered to be largely ineffective, lacking transparency and accountability. Recent research suggests that advertising of unhealthy foods to children has increased in recent years. Self-regulation, simply put, isn’t working.

If the industry does initiate a lawsuit, we can be sure that it will cloak its claim in Charter language, but this should not be mistaken as interest in protecting Canadian’s freedom of expression. Rather, it seeks an unbridled free market, one that allows it to continue to target vulnerable children in order to increase profits.

When PM Trudeau announced Canada would impose restrictions on the marketing of unhealthy foods and beverages to children, the world noticed. Canada now has the opportunity to become a global leader when it comes to restricting marketing to kids. It would be a shame if the fear of industry push-back impeded current efforts, especially when the courts have already made it abundantly clear that children are more important than commercial expression.

Have your say: Health Canada is currently seeking feedback on its approach to restricting marketing unhealthy food and beverages to children, and you can do so by visiting here.

Jacob Shelley is an Assistant Professor with the Faculty of Law and the School of Health Studies in the Faculty of Health Sciences at Western University. His primary area of research is the role of law in promoting public health and preventing chronic disease, with a focus on diet-related chronic diseases. Follow him on Twitter here.
Saturday Stories: Sham Surgeries, Plastic Mice Penises, and Gooplandia
Christie Aschwanden in Five Thirty Eight discusses the powers of sham surgery.

Ed Yong in The Atlantic with a story that begins with a plastic mouse penis.

Beth Skwarecki in Lifehacker details her strange trip to Gooplandia.
On Respecting Reality And Moving Forward
As anyone who has ever suddenly lost a loved one will tell you, there's a great deal of processing to be had to comprehend what's happened.

Having just come back from a hiking trip with my father in Italy's breathtaking Dolomites (we'd booked long before my mother's death and yes, that's a photo from our trip up above), and having had now 5 weeks to try to wrap my head around what seems still at times an impossibility, I'm feeling like it's time to get back at things.

Not sure I'll be fully up to speed for a while, but I'm at the point where I feel that I have enough mental real-estate to start writing again.

I didn't before. Our realities often precludes our best intentions, and it's important to respect that.

My newly darker reality before was such that my best efforts in life excluded all sorts of behaviours. From more regular exercising, to healthier eating, to more moderated drinking, to being more engaged with my loved ones, to writing this blog, and to so much more.

Spending time kicking yourself because you've fallen down will not likely accelerate your ability to get back up, and no doubt life ensures that at times, we all fall down.

The most important question to ask yourself when life isn't going according to plan or when your deck of cards is ugly is, "what can I do today that will help even a little"?

Truthfully, some days the answer may be little to nothing at all.

One day though, there'll be something more formative to do. And today (well yesterday really), mine was to type this out.

Our best efforts in life are dynamic, but that doesn't mean that they're not our bests, and the fact that our bests during difficult times might not be all that impressive when measured against our bests during easy times, doesn't make them any less worthy of pride.
One Last Tribute To My Trailblazing Mother Helen Freedhoff
The last week was an incredibly difficult one with our family reeling from the sudden and unexpected death of my mother.

During the course of the week I reached out to Hilda Bastian as I felt that as a fellow trailblazer for women in STEM, she might be interested in my mother's career.

After reading about her, Hilda offered a nearly unbelievable kindness - over the course of her own weekend, Hilda put together a Wikipedia entry for my mother (click here to read it) which I was able to share with my father before having to leave Toronto.

Through his many tears also came, "how lovely, how lovely", and "what a tribute!"

Were my mother still alive, an incredibly modest and private person, she'd have been embarrassed (maybe even mad at me for indirectly facilitating) and might have asked that the entry be removed, but since she's unable to complain, and as I and her family is intensely proud of her accomplishments, consider my sharing them my last opportunity as her son to shake her tree a bit (please also find our eulogies below).

With the shiva over I will slowly be returning to social media and blogging. Will be returning to Twitter and Facebook first, and blogging a touch later. With Jewish mourning, the first 30 days have a special significance and so I'm thinking I'll start blogging again (aside from this post of course) once they're complete part way through July.

[My deep and heartfelt thanks to Hilda for her compassionate kindness and generosity in putting my mother's Wikipedia page together.]

Remembering My Mother (And Why I Won't Be Around As Much For a While)
Dr. Helen Freedhoff January 9th, 1940 - June 10th, 2017
My mother was her own force of nature, and tragically, wholly unexpectedly, and thankfully without suffering, she died on Saturday. To say our family is in shock is an understatement. My mother lived life on her own terms, both for the better, and at times for the worse, but there was never an instant in my life where I didn't know how fiercely she loved me, nor where I didn't love her back.

A theoretical physicist who received her PhD from the University of Toronto she was a trailblazer for women in science. Her work in science is baffling to me. I read the titles of her papers, and while I understand some words here or there, they might as well be written in a foreign language - one of her students told me that this paper is one of which she was especially proud. She once explained to me how it was she went about choosing what to study. The gist was that she would look at experimental results that people could not explain, and then if she thought that the solution would be mathematically elegant, she'd get to work. And while I may not be telling that story perfectly accurately, that's how I remember it anyhow. We've no doubt, that had it not been for mandatory retirement (she missed its abolition by 2 years), she'd have still been teaching.

It was my mother who taught me, again for better or for worse, to always speak my mind and not to be shy, even with criticism. Below is the obituary we're placing in the papers - and I thought I'd share it here as well and let it fly out into the ether. Love you Ma, can't believe you're gone, and will always be proud to be your son.

Helen (Henchy) Sarah Freedhoff (nee Goodman)

Passed away suddenly on Saturday June 10, at the cottage she loved in Muskoka at the age of 77.

She was predeceased by her parents Sholom and Ethel Goodman (Kohl)

She will be dearly missed by her husband Stephen of 57 years, her daughter Michal (Michael Van Leeuwen), her son Yoni (Stacey Segal), her brother David Goodman, her grandchildren, Rena, Zahava, Talia, Sammy, Leah, Vivienne, and Yael who adored their Omi, and many nieces and nephews. Sister-in-law of Judith and Aubrey Golden,Sylvia Goodman (late brother Irving), and Doba Goodman.

Helen was born in Toronto and excelled in the sciences, having graduated from the University of Toronto with the highest marks and was awarded the Governor General’s Gold medal. She went on to obtain a PH.D in physics and was appointed an assistant professor at York University in 1967. At the time of her appointment, she believed she may have been the only woman in Canada teaching at the university level in her field.

She took a keen interest in her students and was responsible for many of them under her guidance continuing their careers in science. She was soft spoken, a voracious reader, had taken up piano again upon retirement, was an expert ken-ken solver, a weekly yoga practitioner, and maintained a meticulous household

Funeral service at Benjamin’s Park Memorial Chapel 1:30 Monday June 12.

Shiva at 38 Alexandra Wood. Morning services daily at 7:45 a.m. Evening services at 8:45 p.m. Shiva will conclude Sunday morning, June 18.

Donations in memory can be made to Associated Hebrew Schools, Ethel and Sholom Goodman Fund, (416) 494-7666
Saturday Stories: War Photography, White Washing, and Cancer
Photo by Nancy Borowick from her piece in NPR
Marie Brenner, in Vanity Fair back in 2014, with an amazing piece on World War II photographer Robert Capa.

Julie Lenarz in The Tower on the whitewashing of Linda Sarsour.

Nancy Borowick in NPR with her poignant and beautiful piece on her parents as they were both dying of cancer.
Former Mexican President Vicente Fox Is All Kinds of Hilarious
Honestly, today's Funny Friday bit, with Fox lecturing Trump about the wall, is just genius.

Don't miss it.

Have a great weekend!

Canadian Nutrition Society Calls 13 Daily Teaspoons of Added Sugar "Moderate"
To be fair, it wasn't the Canadian Nutrition Society (CNS) directly who told attendees of their recent annual scientific conference that consuming 13 daily teaspoons of added sugar represented a "moderate" amount, it was the handout they stuffed into all their conference swag bags that did.

That handout, available here, had this to say,
"In 2004 Canadian consumption of added sugars was about 11% of daily energy intake (53g or 13 tsp per day), according to an analysis of dietary intake data from the Canadian Community Health Survey. Average intake ranged from 9.9% of energy in adults aged 19 and above to 14.1% of energy in adolescents aged 9-18 years. This is generally considered to be a moderate amount"
Given it was authored by The Canadian Sugar Institute, it's wholly understandable that they're not lining up with the World Health Organization or Canada's Heart and Stroke Foundation in considering 12 teaspoons of added sugars per day a daily maximum, and 6 teaspoons of sugar per day a better goal. Less understandable though for the CNS.

According to the CNS, their aim is to,
"foster the next generation of skilled nutritionists, thereby building a better and healthier future for all Canadians"
I struggle to see how providing the food industry with the ability to influence and directly access the next generation of nutritionists would fit within that mandate.

(Thanks to the dietetic student attendee who sent me the handout, and for the record, I feel the same way about medical organizations providing pharma with the opportunity to stuff medical conferences' swag bags with their marketing materials)