Legal Violations of the Food Industry:

Western society, and social endeavours generally, revolve largely around food, meals, and consumption. We host luxurious family dinners for notable holidays, have business meetings over lunch, meet friends for weekend brunch, serve refreshments as incentive for participation, and go so far as to organize our entire days around where we will eat, who we will eat with, and what we will be eating. The food industry prioritizes speed and convenience, reinforcing its active participation in almost every aspect of our lives. Vending machines, convenience stores, fast food establishments on every street corner, and the ability to order dinner with just a few clicks or swipes at the palm of our hand ensure our next meal is never too far from our thoughts.

Drowning in the influence of the food industry, we all too often fail to consider the underlying aspects of what we’re subject to. The reaches of corporate crime are becoming more and more clear for those interested in paying attention… but how does the food industry fit into this schematic of despicable conduct? When the right argument is formulated, the answer is both civilly and criminally.

“Like many corporate or environmental harms,” writes Hazel Croall in a release from the Centre for Crime and Justice Studies, “those involving food involve looking beyond the confines of criminal law. Some activities are ambiguously criminal, while others lie in the ‘quasi criminal’ category of regulatory law.” In the same fashion that we can examine the way corporations foster an environment ripe for financial crimes, we can hone in on the food industry’s violations, which I will argue are predominantly divided into three distinct, yet largely overlapping, categories: misleading marketing and advertising techniques, harms to the environment, and harms to the individual.

MISLEADING MARKETING AND ADVERTISING TECHNIQUES

In Canada, the legislation that primarily governs our food industry’s advertising and marketing efforts is the Competition Act, which indicates that to promote, either directly or indirectly, the supply or use of a product in a way that is false or misleading in a material respect subjects said person or company to review. From the onset, it is important to keep in mind that advertising is an extension of contract law (as was clearly established in the monumental case of Carlill v Smoke Ball Company), and that the language contained within the Competition Act, and therefore the case law brought forth to the court on the basis of its violations, leans predominantly toward civil as opposed to criminal law. Unsurprisingly, “the onus is on advertisers to ensure that claims about the performance, efficacy, or length of life of their products have been substantiated by an ‘adequate and proper test.’ However, there is no clear definition for what an ‘adequate and proper test’ should entail – a short-sighting that the Competition Bureau indicates is intentional, so as to provide flexibility in a field that they see as “increasingly complex and highly technical.” An even deeper challenge is presented in the fact that there remains no clear definition for what “performance” or “efficacy” should or should not entail. What is the threshold? To provide some direction on this matter, we turn to Ontario’s Sale of Goods Act, which tells us that there is no quality or fitness guarantee implied when an item is sold except in specific circumstances, which include:

“1. Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skill or judgement, and the goods are of a description that it is in the course of the seller’s business to supply […].

We would be remiss to make the assumption that there are many – if any at all – circumstances under which a seller in the food industry (whether the seller be a food producer, manufacturer, or any form of supplier) is not presumed either expressly or by implication to have an authoritative understanding of the purpose of their product. Whether consciously or unconsciously, we’re led to believe that leading producers and retailers in the food industry must also be the leading experts on the most appropriate uses for the products they’re turning out to the public. Many in-store menus that consumers are presented with on a daily basis incorporate subtle suggestions about “healthier” choices; consider, for a brief moment, the last time you saw something suggesting specific options were lighter, calorie-conscious, or health-wise. Now, take into consideration the fact that a McDonald’s crispy chicken caesar salad not only has the same number of calories as a beloved Big Mac, but also slightly more fat and sodium.

Perhaps pointing to McDonald’s, which has landed a spot on the Fortune 500 list for 24 consecutive years , as a culprit for misleading consumers is somewhat facetious. There is an array of more disconcerting examples to examine. In 1999, the Heart and Stroke Foundation launched a program that many of us would still recognize the symbol for today: the Health Check program. When a product met the requirements outlined by the Heart and Stroke Foundation, it was awarded the Health Check symbol as a means of telling consumers the product was endorsed by the Heart and Stroke Foundation. Consumers shouldn’t have to question the validity of recommendations made by an organization like the Heart and Stroke Foundation, but the program came under heavy scrutiny for its questionable nutrition requirements. Yoni Freedhoff, an Ottawa-based medical doctor, professor of family medicine, and obesity expert, weighed in on the issue in 2012, shortly after an assortment of fast food chains (such as Harvey’s and Pizza Pizza) had been given the approval to label certain menu items with the valued Health Check symbol. “No self-respecting dietician or health organization would ever claim that encouraging eating out in restaurants, drinking juices containing 10.5 teaspoons of sugar per glass, and eating faux-fruit candies that contain more sugar than actual candy could possibly be good for living healthy lives,” Freedhoff wrote in his blog, going on to condemn the Heart and Stroke practice for abusing public trust and citing the Foundation’s own survey results that indicated 68% of respondents felt they could rely on Health Check to assist them in making healthy choices. The Health Check program was discontinued in 2014, at which point the program director reinforced how much pride surrounded the program’s accomplishments.

To further the conundrum and the confusion, organic labeling regulations cater to packaged foods. The Canadian Food Inspection Agency dictates how the industry is permitted to label foods. Under a section for permitted organic claims, the Agency encourages labelling products with 95-100% organic ingredients as organic, since “all products with 95% and over organic content may use this claim.” It doesn’t take much inspection to realize this allowance provides a bit of mercy for producers of packaged products, seeing as whole foods such as vegetables and fruits only ever contain a single ingredient, and thus are either 100% organic or completely inorganic.

In 2012, New Balance settled a class action lawsuit after consumers took issue over the company’s claim that a particular line of running shoes were constructed in a way that encouraged a higher percentage of calorie burn, and would result in targeted lower body toning. The settlement meant that, moving forward, New Balance wouldn’t be able to claim its shoes promoted health in any way without proof from clinical studies. Volkswagen faced a similar issue in 2016. Having advertised their vehicles as “Clean Diesel”, and claimed they’d developed technology that lowered harmful emissions, the company was thrown into a lawsuit when the claims were proven to be false. Federal Trade Commission Chairwoman Edith Ramirez said, “Our lawsuit seeks compensation for the consumers who bought affected cars based on Volkswagen’s deceptive and unfair practices.” Volkswagen also settled. I fail to see how the conduct of these companies varies in any substantial way from the conduct of our food industry and the organizations that regulate its conduct.

The public presentation of food is catastrophically misleading, as has been demonstrated above in specific relation to Canada, and it’s a practice that emanates hints of industry corruption. With misinformation bleeding from a variety of “reputable” sources and legislation that gives leeway in the less favourable direction, it’s nearly impossible to wade through the so-called facts. And this is only the beginning of the issue. Not only do these forms of misleading marketing and advertising leave a bitter taste of dishonest business, they are ultimately harmful to both the environment and to consumer health.

HARMS TO THE ENVIRONMENT

Despite a long history of denial and accusation of conspiracy, the reality of human-induced environmental harm is frequently framed as pressing and in need of urgent attention. Elementary school children are encouraged to recycle, turn off lights when they leave a room, unplug electronics when they’re not in use, and turn off the tap while they’re brushing their teeth. The contributions certain corporations make to environmental harm, often in the form of polluting, have been pinpointed as a form of corporate crime. Kramer encourages his readers to view corporations’ involvement with climate change through a criminological lens, arguing for the use of existing or the creation of new legal framework as a means of prosecuting said corporate players.

Stepping up to the challenge, some notable corporations in the food industry have begun backseat marketing on the basis of minimizing environmental harm, most often with an approach to reduce waste. Less facetiously now, allow me to revisit McDonald’s as an example. According to the corporate section of their website, their commitment to the environment is approached in two primary ways. First is reducing waste. In an eye-catching graphic, they display a ‘food waste hierarchy’, demonstrating a precise order of priorities that begins with avoiding creating food waste from the beginning. Succeeding points include giving to families in need, making animal feed, and recovering energy from food waste. The next major area of focus is recycling and the creation of packaging that is made from renewable, recycled, or certified materials. According to the company itself, “[their] customers tell [them] that their number one environmental concern is the environmental impact of McDonald’s restaurant packaging and waste.” They’ve vowed to ensure all of their packaging meets this requirement by the year 2025, and intend to increase the percentage of restaurants that recycle from 10% to 100%. These particular endeavours were publicized after renewed pressure to fast-food chains and supermarkets when media exposure reinforced the distinct environmental damage caused by packaging. Of course, McDonald’s has been partnered with the Environmental Defense Fund for 25 years , which, from my perspective, is enough to imply they’ve had the capacity to recognize this issue for quite some time (and likely should have reached their future goals at a point placed in the distant past).

The buck doesn’t stop there. Most recently, McDonald’s launched an advertising campaign centered around sustainable beef in Canada. Advertisements feature expanses of lush green pasture with cattle roaming free, family units of farmers with honest and relatable features, and reassurance that the negative environmental impact of cattle farming has been greatly reduced. Immediately upon seeing one of these ads for the first time, I was reminded of an interesting endeavour taken up by Kip Anderson in his 2014 documentary Cowspiracy: The Sustainability Secret. Visiting an independent duck farm for the purpose of researching the sustainability of small-scale, backyard farming, Anderson determined that even in terms of feeding a single family, the environmental input outweighed the output per animal that was consumed by humans.

“You can’t be an environmentalist and eat animal products. Period,” says Howard Lyman in the same film. The shocking truth about the environmental damage caused by our diet based heavily around animal products is accounted for throughout the film from many different perspectives. A more salient point includes the fact that even the United Nations’ Food and Agriculture Organization released information indicating that animal agriculture is responsible for more greenhouse gas emissions than the combined exhaust from transportation worldwide. Perhaps more disconcerting is the astonishing amount of water that goes into the production of animal products. Taking into account the fact that animals must be fed (with grain that is grown in water-intensive conditions) and watered, as well as the resources used in the process of production and packaging, the water waste for a single pound of beef is said to be, on average, 2500 gallons. It is estimated that by 2025, half of the world’s population will be living in areas where obtaining safe water for either consumption or external use will be a challenge. This goes without taking into account the amount of land necessary to raise livestock. The leading cause of rainforest deforestation is clearing land to provide room for cattle themselves or for the grain used to feed them. The land needed for a single person to eat a vegan diet for an entire year is just 1/6th of an acre. That increases to three times the amount of land, or a half acre, for a person living a vegetarian lifestyle, and to a disproportionate eighteen times (3 full acres) for an individual eating an omnivore diet. Yet we continue to wonder why more than three million children are dying annually from malnutrition.

McDonald’s is far from being the only, or even the primary, culprit. Burger King, as the world’s second largest burger chain, has outright denied requests made by civil society organizations for the company to commit to more responsible sourcing of their products. Supermarkets have also been targeted for their participation in this deplorable cycle of destruction. In Cowspiracy, Anderson at one point asks the President and CEO of the Animal Agriculture Alliance whether they supported or donated to environmental non-profits such as Greenpeace. The interviewee, sitting in the hotspot, declined to comment.

Let’s take an inventory on the issue at hand: The food industry (not just fast-food companies, either) produces significant waste that harms our environment; The public is under the impression that this waste is the most pressing aspect of harm committed to the environment by these corporations; Advertising and marketing campaigns are aimed at reinforcing this misconception; and the food industry is significantly responsible for forms of environmental harm that extend well beyond waste or recycling issues.

It’s inevitable that the average consumer is at fault for supporting the market in question, but the food-based corporations’ tendency to distract from the root of the issue paired with the lack of strict regulation on the food industry’s environmental impact contributes much more significantly to the problem. It is also believed that there are factors at play that have yet to even be fully uncovered.

I’ll borrow from Kramer’s observation that these sorts of large scale environmental harms could be equated to ‘public nuisances’. The history of Canadian cases on the basis of this argument is bleak. In a 1971 decision, Hickey v Electric Reduction Co. of Canada Ltd set the stage that determined there is no private right of action for a public nuisance. Despite Hickey’s (who was a fisherman) livelihood being jeopardized due to chemical output in the lake he caught his fish in, the judge ruled that there was no cause of action because the right to fish in public waters is a public right, and thus the action would have to be taken from a public institution or the public at large. In the 1983 case of Palmer v Nova Scotia Forest Industries , the court examined whether the actions of a defendant company whose chemical defoliants were intruding onto an individual land owner’s property could legally be framed as either trespass or nuisance. They found that, on account of the chemical in use posing no real threat, there were no grounds for either action; the defoliant was the very same as that commonly known as Agent Orange.

Both of these decisions remain viable precedent today.

Ultimately, I see very little distinction between these crimes and the crimes of individuals on property. Carrington writes about the dedicated group of teenagers in Oregon who have filed a suit against the US government for its failure to properly address global warming, thus depriving young people of constitutional rights such as personal security. The ideology behind said lawsuit is the sort that should be matched in the fight against the continuously careless actions of the food industry, and particularly the sectors of the market that deal with animal agriculture.

HARMS TO THE INDIVIDUAL

“Food production exploits workers, indigenous populations, non-human animals and the environment. Agriculture has the highest global toll of occupationally associated deaths,” Croall points out. The harms are innumerable and vast, but the one that we seem most content to ignore is the direct harm to human health that is caused by the distracting marketing techniques taken within the food industry and the industry’s strong governmental ties.

A CBC news interview revealed that historians believe that, when the Canadian Food Guide was initially brought into play in 1942, the recommendations it made were not necessarily intended to promote health or prevent disease, but rather to nurture physically strong soldiers and efficient workers. Yet the guide outright indicated that it was making “health-promotive” suggestions. The first update to the Guide took a step in the direction of encouraging higher consumption of domestically produced products – including more milk. The government’s investment in what foods make up the average Canadian’s plate have been rather blatant from the very beginning, it would seem. Only in the Food Guide’s most recent update were alternatives to animal products, such as soy beverages, tofu, and legumes added into the mix (and with very little emphasis).

These subtle changes likely only occurred because the mountain of evidence continues to grow: the consensus is gravitating toward a clear understanding that consuming fewer animal products generally results in fewer health problems. More than half of deaths in Canada are attributed to a trifecta made up of cancer, heart disease, and stroke. Meanwhile, the World Health Organization classified processed meats as a carcinogen in 2015. The National Cancer Institute of Maryland conducted a unprecedentedly large study that showed results linking both processed and unprocessed meats to not just heart disease, stroke, and Alzheimer’s, but a total of nine potentially fatal diseases. The links have been proven over and over and over again. In the United States, the USDA even disallows eggs from being labelled, marketed, or otherwise advertised as ‘healthy’, ‘nutritious’, ‘low-calorie’, or even as contributing nutritionally. Egg companies cannot even claim eggs are ‘safe’.

For those still hesitant to believe that there is a clear link between health problems and the consumption of animal products, surely there’s little room left to dispute the ill effects of a diet too high in sugar or salt. According to the 2012 documentary Hungry for Change, cigarette companies in the late 60’s and early 70’s were well aware of the addictive qualities of nicotine, so they chose to increase the amount of nicotine in their product. The food industry, understanding evolutionary processes at work on the palette that encourage the addictive qualities of sugars and unhealthy fats, have taken the exact same approach, keeping even consumers with a mind for healthfulness coming back for more.

With half a mind to argue for a case of criminal negligence causing death, I’ll spare my reader the dramatics and instead visit the recognized proximity principle established in the case of Donoghue v Stevenson. Building on the duty not to harm your neighbour, the court here established that one’s neighbour was considered to be anyone reasonably foreseeably harmed by one’s actions. The respondent in the case was a manufacturer in the food industry. The outlined cycle of baited addiction and support of a diet reliant on animal products must be, at the very least, the beginnings of a similar cause of action.

It could even be taken a step further if we allow for consideration of the disproportionate imbalance of power between food-related corporations, government actors, food industry regulators, and the average consumer. “Within the developed world the poorest have less knowledge about the dangers of food and fewer resources or opportunities to purchase and consume healthier foods.” This is, perhaps, the basis for a violation of fiduciary obligation.

Could we go so far as to boldly contend that the misleading marketing techniques of the food industry and its ties to political actors constitute a violation of our section 7 right to life, liberty and security of the person? Every food group on the Canadian Food Guide seems to have their own lobbyists, and for years the bread winners have been those who endorse foods of the lowest nutritional value. It seems only right to acknowledge that the dairy industry in Canada employs nearly a quarter million people. Perhaps some government involvement in the distortion of the food industry is altruistic or for the people. Our very own Doug Ford is a vocal supporter of the dairy industry. Croall frames the issue somewhat differently than altruism:

“Governments, despite the widespread recognition of the enormous cost of heart disease and obesity and their clear link with ‘junk food’ and diets, have largely opted for ‘soft’ regulatory policies. These involve stressing the responsibility of consumers to make informed choices and persuading food corporations to provide clearer information about the contents of food. ‘Hard’ strategies such as ‘fat taxes’ on sugary fatty foods, restrictions on advertising food for children or requirements for clearer, unambiguous food labels have met with fierce resistance and conflict with ideological opposition to greater regulation.”

Kramer, quoting Friedrichs, calls a government’s failure to act affirmatively in specific situations that result in the unnecessary and premature loss of life the most serious form of negligent state criminality. Job security cannot serve these employees, who are also consumers, very well if they end up too ill to actually work, or even deceased. We have been robbed of the capacity to make informed decisions about our own health, and there are few freedoms that are more pressing.

If the legal violations of the food industry were brought into our courtrooms, the actions would be both in public and private law, earning arguments under contract, tort, trust, and perhaps even criminal laws. If anything has been demonstrated through the readings assigned in this last semester, it is that corporate and individual greed often take priority over common welfare, but I remain personally hopeful that this is one area in which history will not repeat itself.

* Academic sources available upon request.