2019 CAFLP Annual Conference Panel Recap: “Informing Consumer Choice: Rethinking Advertising”
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The November 9th “Informing Consumer Choice: Rethinking Advertising” panel discussed the prohibition of marketing unhealthy food and beverages to consumers, and the potential problems with food labelling and brand restrictions.
Lin Jawhar, a PhD candidate at the University of Western Ontario, discussed advertising to children, and the failed attempt by the Canadian government to follow suit of the Quebec Ban. In 2016, Bill S-228 was proposed to amend the Food and Drugs Act in Canada by prohibiting food and beverage marketing directed at children, 12 years of age and under. Though there was overwhelming public support and the bill successfully passed through the Senate and House of Commons, the bill was ultimately not passed. It is unclear why the bill died, but Lin notes that preliminary issues such as the division of powers, and the s.2(b) Charter right to freedom of expression may be of importance in this matter.
Lorraine Fleck, lawyer, trademark agent, and founder of Fleck Innovation Law, discussed the use of brand restrictions, and the problems that they pose to public health and safety. Brand restrictions are prohibitions on the use of trademarks and other brand indicia on products. These restrictions originated in Australia in their attempt to take away the appeal of tobacco products by modifying their packaging. Though similar restrictions are being implemented across other jurisdictions with the aim of protecting consumers and the public health, Lorraine notes that this approach may be working counterintuitively. Counterfeit products in the marketplace are becoming increasingly difficult to distinguish. In 2018, Interpol reported a global operation that dismantled 50 criminal networks in counterfeit food and drink in 67 countries. And in Vietnam, cases of alcohol poisoning were reported and found to be the result of consumption of counterfeit alcohol products. Lorraine concludes that changes to packaging may not be effective solutions in promoting public health, as the plainer the packaging, the harder it is for the consumer to determine whether the product is legitimate or not.
John Unman-Beech, an SJD candidate at the University of Toronto, closed the panel by questioning the ultimate purpose of food labelling. Though the use of food labelling may help consumers make better contracts, John believes that food labelling does not necessarily fit within the contractual model. The idea of freedom to contract, and the notion that parties are responsible for their own contracting, may be interfered with by food labelling laws. For instance, even if the consumer is at fault for having carelessly misinterpreted something on a label, the seller may still be liable for any harm caused to the consumer; this result runs counter to our typical notion of contracting. John thinks that food labelling law could be instead looked at in a framework of distributing social responsibility among actors in a market. He believes that labelling is not necessarily about giving consumers responsibility to look into the products that they are buying; rather it is about creating a system of trust, so that consumers do not need to invest time and effort into obtaining this information themselves.