Conference 2021 Panel Recap - "McCarthy Tétrault Updates in Canadian Food Law and Policy"
Photo by Dan Meyers on Unsplash
This panel, moderated by Jessica Cytryn, provided a thorough overview of recent changes and updates across the field of Canadian food law and policy.
Canadian Food Policy Advisory Council
Catherine Mah (Dalhousie University)
Catherine Mah spoke to the purpose of the Canadian Food Policy Advisory Council, her role within it, and the two meetings they have had thus far. She outlined five key things conference attendees should look out for in the near future. She encouraged us to observe how the Council itself may evolve due to public recommendations and how agri-food may change because of the Council’s existence. She reminded us of the unique position a federal food policy has and the impact it can have on citizen-engagement. Finally, she highlighted that the budget received little attention in 2021, and that diversity is the minimum starting point moving forward.
UN Food Systems Summit
Michael Fakhri (University of Oregon)
Michael Fakhri reports and investigates what is happening across the world regarding food issues and governance. He spoke about his involvement in the UN Food Systems Summit. The Summit is set to take place this fall and aims to push the world to transform food systems with a particular focus on decreasing hunger. Michael provided two critiques of the Summit, specifically that it lacks leaders that strive to bring people together with a real commitment to human rights. Secondly, he critiqued the use of the word “multi-stakeholderism” and argued that rights-based language is preferable.
Indigenous Law
Angela D’Elia Decembrini (First Peoples Law)
Angela D’Elia Decembrini provided an overview of the Mi'kmaq fishing rights dispute. At the heart of the dispute is a fundamental misunderstanding about the nature of Mi'kmaq fisheries and their rights as outlined in the 1999 Marshall decision. She clarified that the Mi’kmaq are operating fisheries made in accordance with their constitutional rights. She noted that the Federal Government's conservation arguments are unfounded and that any steps taken by the governments to deter buyers from purchasing is a direct threat to Mi'kmaq commercial fishing rights. Ultimately, the Federal Government continues to undermine Mi’kmaq commercial rights, rather than honouring the treaties.
Trade Law
Martha Harrison (McCarthy Tétrault)
Martha Harrison highlighted two major themes in international food systems that have developed over the past year: first, the increased importance of international regulatory compliance, and second, how digitization of international trade is becoming an important tool in facilitating food trade and regulatory compliance. Under the first theme Martha summarized a new chapter in the Canada-United States-Mexico Agreement (CUSMA), which outlines good regulatory practices. Under the second theme, Martha highlighted how affordable technology and digitization enables quick compliance and democratizes information. Specifically, Martha highlighted the usefulness of digital tools in getting food products from developing nations on the international market.
Workers’ Rights
Anelyse Weiler (University of Victoria)
Anelyse Weiler spoke to an overall government trend to create agri-food policies that favour large corporations over workers. She also summarized two current issues: firstly, the intensification of risks for migrant workers during COVID-19 and, secondly, public pressure for paid sick leave. She noted that in a post pandemic world, sustaining and leveraging for workers’ rights will depend on persistent organized pressure on multiple fronts. Conference attendees were left with the troubling fact that “sometimes putting profits above people has cost them their lives”.
Advertising, Labeling and Marketing
Glenford Jameson (G. S. Jameson & Company)
Glenford Jameson provided an overview on updates in his work since 2019. Firstly, he spoke to the role social media and e-commerce websites have had on the market, and specifically how food is advertised, sold, and purchased. Secondly, he provided a brief overview of regulatory changes in 2020, and ones on the horizon for 2021 and 2022. With recent changes by the Canadian Food Inspection Agency (CFIA), many businesses have been subject to a significant amount of regulation, and in the next year or so, there is expected to be additional changes in regulation for food businesses, including labelling updates.
Animal Law
Selina Lee-Andersen (McCarthy Tétrault)
Selina Lee-Anderson provided an update on animal law in Canada. Selina’s presentation highlighted the gaps and inconsistencies in Canada’s regulatory schemes for domestic, wild, and farmed animals, particularly due to the fact that animal laws are established at the provincial level, resulting in a patchwork approach. Despite these challenges, there have been positive changes to animal laws in the past two years, including an end to the captivity of whales and dolphins for entertainment, a ban on shark fin trade, amendments to bestiality laws under the Criminal Code, and the introduction into Parliament in November 2020 of the “Jane Goodall Act”, which is designed to protect great apes, elephants, and other animals in captivity. Selina finished her presentation by highlighting the introduction of “Ag Gag” laws in a number of provinces, which are seen as efforts to prevent whistleblowers, journalists, and animal advocates from exposing animal abuse, public health issues, and unsafe working conditions at farms and slaughterhouses. Ontario’s ag-gag law is currently being challenged by an animal rights group as being unconstitutional, infringing on freedom of expression
Intellectual Property Law
Marsha Cadogan (MSC Intellectual Property and Technology Law)
Marsha Cardogan began her presentation by summarizing trade secrets as commercially relevant information that is crucial to the success of a business, is known to be confidential, and is only disclosed to select individuals. Previously trade secrets were only recognized in Canada on a contextual, case-by-case analysis. However, this has changed in the past year due to CUSMA, which provides protection of trade secrets as a requirement of the agreement. This has led Canada to amend the Criminal Code, at section 391(1), to allow sanctions for the breach of trade secrets. Marsha encourages the audience to stay updated on how this section will be interpreted, and its impacts on intellectual property law in international food trade.
Temporary Exemptions to Interprovincial Trade
Ronald Doering (Gowling WLG)
Ronald Doering provided a summary on developments in interprovincial trade in light of Covid-19. Ronald explained that in response to the pandemic, the Canadian Food Inspection Agency allowed an exemption for meat not from federal plants to move interprovincially when a province can demonstrate a shortage of meat. While this exemption was never capitalized upon, it has led to the question of why interprovincial meat trade isn’t streamlined into a national system of inspection. Ronald answered this question by explaining that under the Constitution Act, 1867, provinces hold jurisdiction over the regulation of internal trade and commerce. This means that for meat to travel between provincial borders, it must comply with both the home province and the destination province’s regulatory schemes and this cannot be nationally streamlined without amending the constitution itself. While this may prove frustrating, the provincial jurisdiction over commerce and trade is unlikely to change anytime soon.
Conclusion
Finally, Jessica Cytryn, asked the panelists to conclude by speaking to changes they anticipate staying or developing in light of the pandemic. They left us with the following thoughts:
Michael Fakhri: “COVID-19 exasperated existing inequalities making working people in all parts of the food system more poor, sick, and hungry. Even though these dire effects will be felt for decades to come, what the pandemic has also shown is that the only thing that has helped people through these most difficult times has been cooperation and solidarity.”
Anelyse Weiler: “For researchers, it’s important to analyze how the pandemic has consolidated power within Canadian food industry and agribusiness; it’s also crucial to understand how civil society movements can pressure governments to enact policies that strengthen the rights of precarious workers across the food chain.”
Martha Harrison: “The movement toward rebuilding and securing robust supply chains and related digitization of trade will almost certainly become more important post-pandemic. The pandemic has revealed both strengths and weaknesses in the global supply of goods and services (including those relating to food), and since food producers, traders and distributors have (in some instances) been required to immediately shift supply chain strategies throughout the pandemic, many have taken this time to find and build logistic efficiencies. Now that global food distribution players have a better understanding of production supply, stock availability, and transportation conditions for foods, supply resiliency models can be created. Digitization of these models is particularly helpful and important for perishable food products, where trade delays are especially impactful. The concept of “smart contracts” for foods would allow instant contract amendments in the event that supply chains need to be diverted – these contracts will be top of mind in trade moving forward.”
Marsha Cadogan: “Technology’s role in food traceability and along the food supply chain in general has increased since the pandemic. The use of blockchain platforms and other emerging technology in the food supply chain is likely a long-term trend.”