2019 CAFLP Annual Conference Panel Recap: “Food Fights: Litigation, Remediation and Compensation”
Have you ever wondered why some ice cream costs $10 and some costs $3?
The answer, at least in part, may lie within the world of tariff classification disputes, dumping practices, and a whole host of other contentious trade issues that make up a large part of Senior Associate at BLG Julia Webster’s practice.
Trade Disputes and Dumping
Webster, who grew up debating food policy with her father over dinner, offered a thorough and entertaining explanation of how Canada regulates food which crosses our borders -- and the legal disputes that may arise when food gets shipped around the globe.
Namely, the tariffs companies pay to import food into Canada vary according to trade deals, Canadian supply management, global politics. Walking through a grocery aisle will never be the same again now that I have seen the World Customs Organization’s Harmonized System, a list of over 5000 categories of commodity used by over 200 countries to determine appropriate tariff prices for the global food trade. When commodities get misclassified, or slapped with a high tariff, they may call Julia or another trade lawyer to help them navigate the Canadian Border Services Agency or World Trade Organization processes which govern our national and global food supplies.
Webster’s presentation was just one of three fascinating talks about how food issues get litigated, and what some of the emerging trends and patterns in these cases might teach us about the future of food law before the courts.
Trends in Food Class Actions
Longtime CAFLP member (and also a BLG Senior Associate) Amélie Gouin and McCarthy Tétrault partner Ayse Dalli were also in attendance to give attendees an update on the wide array of food-related class actions which have sprung up over the last year. These include:
● The Attar c. Redbull et al. settlement for $850,000 over misinformation related to the dangers of ingesting the energy drink as well as its superior effects;
● Bramante c. McDonald, a class action targetting McDonald’s marketing to children under 13 years old;
● The ongoing “bread cartel” class action against Loblaws et al.; and
● Bourdeau c. SAQ, a class action contending that SAQ misled consumers about the origins of wine, their blending of wine, the value of products, and incomplete labelling
...just to name a few. Gouin and Dalli also highlighted some clear trends; the first being that Canadian class actions often take their inspiration south of the border. “We see a lot of copycat lawsuits,” said Dalli - especially in class-action heavy states like California and New York. In Canada, Quebec continues to be one of the most consumer-friendly provinces for class actions.
What are people suing about these days? The largest target remains food producers whose labels may be false and misleading (especially using words like “all natural” and “pure”), and snack foods are the biggest category of foods fending off lawsuits. Suits that target “slack fill”, AKA the amount of space manufacturers leave in a bag or box, are on the decline, as courts have issued sharp judgements against this kind of lawsuit.
Legal Recourse for Foodborne Illness
Last, but certainly not least important, Amy Hétu of Université de Sherbrooke shared her research on consumers’ lawsuits for foodborne illness, many of which are not successful for several reasons, including the fact that they often go to small claims court where litigants are self-represented against strong defenses from companies.
Hétu recommends that litigants looking to win a lawsuit about a foodborne illness rely more heavily on medical and scientific evidence, do their legal research carefully so they meet the tests required, and be prepared before they go to court.
For defendants, Hétu suggests good food hygiene protocols, a careful examination of how consumers are preparing their food, and the use of expert reports or advice -- depending on the source of a foodborne illness (which are notoriously hard to pinpoint) an expert might be able to explain that the defendant’s product could not have been at fault.
She also looks forward to seeing technology advance what it can do to prevent foodborne illness (sensors that indicate when milk has gone bad are just one example) as well as improvements to warnings and consumer education.
Whatever comes next, it seems that for those interested in litigation and the food space, there is no shortage of food fights to keep an eye on -- or join, if you are eager to roll up your sleeves!