2019 CAFLP Annual Conference Panel Recap: “What’s on the Box? Rethinking Labeling and Certifications”
"Certified Organic Sticker on Bananas" by Tony Webster is licensed under CC BY-SA 2.0
The experts on this panel zoomed in on a particular corner of food labels: certification marks. Under Canada’s Trademarks Act, a certification mark is type of trademark that is used to identify goods or services that are of a defined standard with respect to either quality, production conductions, class of supplier, or geographic origin (s. 2).
Alexandra Mogyoros, a DPhil candidate in law at the University of Oxford whose doctoral research is focused in trademark law, opened the discussion by identifying the two major functions served by certification marks in the food industry: first, certification marks empower consumers to make informed purchasing decisions, and second, certification marks play an important role in private governance by encouraging companies to go beyond government mandated standards. However, as Mogoyros puts it, the market has surpassed its carrying capacity for certification marks. The huge number of certification marks results in a loss of the meaning of these marks to consumers. Trademark law imposes an upper limit on this proliferation because it requires marks to be sufficiently distinctive. However, Mogoyros suggests that this limit is not enough to prevent dilution of the certification marks market. In addition to trademark law reform, we need institutional and journalistic support to hold certifying bodies accountable for upholding the integrity of their own certifying marks.
Richard Rabkin, Managing Director of Canada’s largest kosher certifier, the Kashruth Council of Canada (COR), represented the perspective of a certifying body. Rabkin emphasized that a certifying mark is only as valuable as the trust that it garners from consumers who rely on it, and thus the enforcement of the proper use of the mark is a critical function of a certifying body. When a Jewish summer camp received cheese that had a fraudulent COR certification, COR informed the Canadian Food Inspection Agency, which proceeded to charge the supplier, Creation Foods, who pleaded guilty and paid a fine of $25,000. COR also successfully brought a civil case against Adee Flour Mills after non-kosher cake mixes were labelled with the COR symbol. The court found that Adee was liable to pay $20,000 in damages for breach of contract and $5,000 in punitive damages, in part on the grounds that the COR label could foreseeably result in “spiritual trauma”.
Glenford Jameson of G.S. Jameson & Company drew on his experience advising certifying bodies to identify the critical design elements of a good certifying body. Jameson emphasized that new entrants to the certification market ought to have standard-setting as their sole mission and ought to be well-equipped to surveil and enforce these standards. For existing certifying bodies, Jameson highlighted the importance of a code of conduct that allows for clear identification of a breach of the standards, a quality manual for certificate holders that gets revised frequently, and a transparency policy that makes all of this information easily accessible by the public.
In summary, certification marks can empower consumers to support causes and adhere to standards that they care about in their daily purchasing decisions. However, in order to retain the integrity of the certification mark both on an individual level and as a category of trademark, it is important that the certifying bodies clearly define and communicate the content of their certification and stringently enforce the certifications that they grant.