Think of the Children! Advertising to Preteens in QuebecMarch 22nd, 2017
By Adam Allouba, Partner, Lawyer
Among the many business practices regulated by Quebec’s Consumer Protection Act (the Act) is commercial advertising directed at children under the age of 13. In fact, except as specifically authorized under the Act, such advertising is prohibited. As a result, any business that is considering marketing its products or services to that demographic needs a proper understanding of the prohibition and its exceptions to ensure that it is compliant with the Act. This concern is even more pressing on the internet, where a child’s ability to browse websites at their leisure means that businesses may have even less control over who sees their promotional material online than they would in print or on television.
Under the Act, to determine whether an ad is directed at underage children it is necessary to consider the nature and intended purpose of the goods advertised, the manner of presenting the advertisement, and the time and place it is shown. For example, an animated commercial for a sugary breakfast cereal with a superhero mascot on a website designed to entertain small children would certainly be offside. The Act also specifies that the fact that an ad appears in media intended for people thirteen or over does not create a presumption that it is directed at such people. In other words, the fact that an ad appears on a website targeted to adults does not, by itself, establish that it is not aimed at children.
As mentioned, there are exceptions to the blanket prohibition. In general, an ad may be directed at children if it complies with certain restrictions on its content and presentation so as to avoid misleading or unduly enticing them, and it falls into one of the following categories:
- it advertises a program or a show directed at children;
- it appears in a store window or display, or on a container or label;
it meets all three of the following criteria:
it appears in a magazine or insert directed at children;
- the magazine or insert is for sale or inserted in a publication which is for sale; and
- the magazine or insert is published at intervals of not more than 3 months.
To better flesh out the requirements of the Act, the Consumer Protection Office (the CPO) has published a guide (available in French only) that sets out their position on what constitutes lawful and unlawful advertising directed at children. It is important to note that the CPO’s positions are not binding, can be changed at any time without notice, and do not have force of law. As a result, it is essential to obtain tailored legal advice to confirm whether an ad or a proposed ad complies with the Act.
In the guide, the CPO sets out three questions that help determine whether an ad is permitted:
- To whom is the good or service targeted; is it attractive to children?
- Is the ad designed to attract the attention of children?
- Are children targeted by the message or exposed to it?
In the CPO’s view, the answer to the first question guides the rest of the analysis. In the case of a good or service primarily directed at children, such as a toy, the ad cannot have a design that is attractive to children or appear in any medium to which children might be exposed. If the good or service is attractive to those both above and below thirteen years of age, such as a video game console, the ad cannot have been designed to be attractive to children or appear in a context where it is particularly likely that children will be exposed to it (such as a children’s TV show or a children’s magazine). If the good or service is of no particular interest to children, such as a financial product, then the ad is unlikely to be problematic but, even in such cases, if the business offers children’s products then it must take care to ensure that the ad is not designed to be attractive to children and appear in a context in which they are likely to be present.
Under the Act, a legal person can be fined between $2,000 and $100,000 for any breach of the prohibition on advertising aimed at children. Over the years, the CPO has fined several business amounts in the tens of thousands of dollars. Perhaps worse, the CPO is liable to publicize any cases of non-compliance and there are non-profit organizations that make it their business to identify purported violations of the Act, report them to the CPO and publicize the complaints that they have filed. In addition to the obvious legal risk, there is therefore a meaningful reputational risk to the business if the media picks up the story, which has occurred in several cases.
It’s worth noting that the ban on advertising to children was unsuccessfully challenged before the Supreme Court of Canada in 1989. A majority of the court ruled that while the rule constitutes a limit on freedom of expression, such limits are reasonable and constitutional on the grounds that they purport to protect children from commercial manipulation. While it is possible that almost 30 years later a new challenge might prevail, as the law currently stands the prohibition is allowed.
If you are running or considering an advertising campaign in the Province of Quebec, it is essential to obtain expert consumer protection law advice. Non-compliance with the Act’s requirements can pose significant risks, both legal and non-legal, to your business. For comprehensive and practical advice on consumer protection law matters, contact a member of our strategic internet team.