2019 CAFLP Annual Conference Panel Recap: “Regulating Public Health: the Role of the State in Addressing (Over-)Consumption”

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The diversified nature of the ways in which the speakers approached the topic testifies to the intersectionality that characterises the field of food law and policy. The conversation began with University of Western Ontario's Professor, Jacob Shelley. He pleaded for the recognition of the existence of a duty to inform consumers of the risks stemming from the overconsumption of foods items. As he explained, product liability law provides that goods can be deemed defective when the prejudices provoked by their use could have been reduced or avoided with reasonable instructions or warnings. Indeed, some warnings, while they could be qualified as futile since portraying obvious risks, actually need to be communicated in certain circumstances. It is the case when prejudices could result from foreseeable misuses of products. Professor Shelley presented the compelling example of Imperial Tobacco Canada ltée c Conseil québécois sur le tabac et la santé (2019 QCCA 358), where Quebec’s Court of Appeal upheld the decision granting $15 billion to consumers who argued that the manufacturers had the obligation to warn consumers about the foreseeable risks associated with smoking. Shelley proposed to transpose those principles to the overconsumption of food that is currently promoted by manufacturers despite the evidence demonstrating the detriments this practise has on consumers. As he put it, “creating a scientific controversy cannot act as a shield”. Furthermore, he argued that for the categories of foods that are most susceptible of being overconsumed and where a foreseeable misuse thus exists, manufacturers should protect consumers by warning them of those risks.

Then, it was Melissa Card-Abela’s turn to discuss the nutritional labeling of food in Canada. The law professor at Michigan State University shed light upon the obstacles interfering with allowing the nutritional labeling on food from being informative to consumers in an optimal way. First of all, she identified that the way in which advertising is currently being done is problematic. Indeed, design strategies or symbols can be deceptive and lead consumers to believe that products are healthier than they truly are. She also mentioned the use of inadequately conducted studies to support claims and consumers' tendency to reduce the products they consume to those claims. Finally, she identified the lack of food literacy as being a major culprit as well. Card-Abela nonetheless concluded her exposé with some solutions. She stressed the importance of offering health literacy classes to the population and explained being in favour of the removal of health claims on products.

C’est la doctorante Josiane Rioux Collin qui a conclu la réflexion avec sa thèse à l'effet que certaines interventions actuelles de l’État s’avèrent stigmatisantes pour les personnes présentant un surplus de poids. Elle a proposé que les programmes de promotion de la santé publique résultent parfois en être plus contreproductifs que bénéfiques. Elle a plaidé en faveur d’une promotion de saines habitudes de vie sans distinction entre démographies distinctes et pour des mesures législatives apportant un appui symbolique aux personnes marginalisées dans la société. Elle a également proposé d’instaurer des incitatifs fiscaux pour promouvoir l’activité physique et d’effectuer des interventions sur l’environnement alimentaire des individus.