36-5: Food for Thought Archives

Encouraging Healthy Eating Through Legislation? The Case for Mandatory Menu Labels

May 1, 2012 By Nola M. Ries

Even if governments enact laws requiring food service establishments to post nutrition facts on menu labels, the onus is still on the consumer to use that information in a meaningful way.

How many calories in that snack?

Having a mid-morning energy slump? How about a quick visit to Starbucks for, say, a café latté and a blueberry scone to hold you over until lunch? Unfortunately, that energy slump can quickly turn to energy excess with a 700-calorie snack that amounts to more than a third of your daily energy needs.

An interested consumer can visit the Starbucks website to look up calorie details of a large café latté with 2% milk (240 calories) and the blueberry scone (460 calories, no butter or jam). In some locations, Starbucks and other major chains are posting calorie details on food displays and menu boards so customers may consider the caloric implications before they make a purchasing decision.

Menu labels

The growing public health problems of obesity and related chronic diseases, like diabetes, high blood pressure, heart disease, and some cancers, are compelling governments to find new ways to encourage people to eat a balanced diet and avoid unhealthy weight gain. Menu labeling – displaying calorie and other nutritional details on menus – is one tool that legislators hope could help influence consumer eating choices.

The United States is leading the way with menu labeling. The City of New York implemented mandatory menu labeling in 2008. A New York state restaurant industry association brought legal action to fight the menu disclosure rule, and according to the New York Times, the “lawsuit was litigated more ferociously than death penalty cases.” The legal battle concluded in the City’s favour, however, and several other U.S. cities and states have followed New York’s example. In 2010, the U.S. federal government enacted legislation mandating national chain restaurants (those with 20 or more locations) to display calorie information.

Menu labeling has also attracted government and industry attention in Canada. A Healthy Decisions for Healthy Eating Act was debated in Ontario’s Legislature in 2009/10 and in August 2011, the British Columbia government launched the Informed Dining Program, a voluntary menu labeling collaboration with the private food service sector. Under B.C.’s program, hospital-based food service businesses are required to post nutrition information on menus. The Canadian Restaurant and Foodservice Association contends that mandatory menu labeling legislation is unnecessary, arguing that some restaurant chains already supply nutrition information through websites and other means.

The theory and the reality of menu labeling

The theory behind menu labeling – whether compulsory or voluntary – is that making nutrition information easily available at the point of purchase will help diners make healthier food choices. But is this theory proven in practice? While many consumers are enthusiastic about menu labels, recent studies suggest that menu labels have minimal impact in shifting consumer choices.

More positively, some businesses have responded to health concerns by reformulating their product lines to offer lower-calorie and healthier options. Starbucks, for instance, replaced whole milk with 2% milk in its beverages and launched a selection of “petite”, lower-calorie baked goods. Many of the high-calorie options remain, however.

According to a consumer survey conducted shortly after the New York City menu labeling rule came into effect, 89% of respondents considered it a beneficial policy change. Nearly all diners were surprised by calorie counts, with 90% saying counts were higher than they expected. In Canada, a recent federal Public Health Agency survey found that 92% of Canadians support menu labeling. Studies demonstrate that diners, even health professionals like dietitians, consistently underestimate the number of calories in fast food and restaurant meals.

Despite their popularity in opinion polls, menu labels do not necessarily change consumer behaviour in practice. Researchers have visited fast food restaurants in locations where menu labeling is mandatory and collected data on consumers’ responses to the nutrition information. Some consumers claim the menu labels persuaded them to select lower-calorie items. After collecting customers’ receipts and tallying calorie content, the researchers discovered the diners had not, in fact, ordered fewer calories. Another study found that menu labels had no impact on teenagers’ fast food choices as they said taste, rather than calorie information, was most important to them. Diet-conscious consumers, women, and people of higher socio-economic status are more likely to use menu labels to select healthier options, though some consumers who feel virtuous after making a low-calorie choice for one meal may overcompensate by eating more calories later in the day. As another unintended outcome, consumers on a tight budget may use menu labels to make value-for-money judgments and conclude they are better off buying a higher calorie meal that costs the same amount as a lower calorie option.

Some research suggests menu labels are more effective when combined with additional information, such as educational statements about average recommended daily calorie intake, or visual cues like red or green stickers on higher or lower calorie options, respectively. Since implementing mandatory menu labeling, the City of New York has launched a public information campaign to promote the message that “2000 calories a day is all most adults should eat.” The campaign shows that foods that are commonly considered healthy can be deceptively high in calories. One poster, displaying an apple raisin muffin, shows that, at 470 calories, this hefty snack amounts to nearly a quarter of daily calories. Another poster points out that a nutritious looking chicken rice burrito provides nearly 1,200 calories and poses the question, “If this is lunch, is there room for dinner?”

The bigger picture of eating behavoir

Eating behaviour is complex and ongoing research is needed to determine the impacts of menu labels over the longer term, and also to consider what other policies or legislative measures may help encourage healthier choices. Even if governments enact laws requiring food service establishments to post nutrition facts on menu labels, the onus is still on the consumer to use that information in a meaningful way.

Indeed, a criticism of nutrition information measures, including labels on menus and packaged foods, and tools like the Canada Food Guide, is that they place responsibility for healthy behaviours primarily on individuals. Information provision policies are based on a premise that people simply need more facts to change their behaviour, but this approach disregards the

many economic, environmental, social and cultural factors that influence and constrain behaviour.

Food marketing that encourages high-calorie consumption may override the influence of menu labels or other information strategies. Price incentives are also important. For instance, Subway introduced a $5 foot-long sub that encouraged higher average calorie intake among Subway customers, even in U.S. locations where calorie counts were posted on menu boards. Instead of focusing on menu labels, some nutrition experts advocate for smaller portion sizes for fast food and restaurant meals. Interestingly, a recent study investigated whether consumers would accept an invitation to “downsize” their meal by receiving smaller portions of starchy side dishes at a Chinese restaurant. Up to 30% of diners accepted a reduced portion size, even without a discount on the price of the meal. In this study, menu labeling did not promote lower calorie intake.

It is unrealistic to expect that menu labeling, on its own, will make much difference in the ongoing public health effort to control rising obesity rates and lifestyle-related chronic diseases. Nonetheless, it is worth encouraging the food service industry to make calorie and nutrition information easily available to consumers at the point of purchase. Health-conscious consumers who are concerned about nutrition may use menu labels to inform their choices. While some information is likely better than no information in this context, informational strategies alone are not enough and other policy and legal tools, including tax measures and regulation of food marketing and content, may have a broader impact on altering the many obesogenic aspects of modern environments.

Growing Community Gardens

May 1, 2012 By Kyla Conner

For community gardens the law plays an important role in helping like-minded groups of people organize to grow fresh, local, healthy food in their communities.

Law isn’t something most people think about when planting seeds or planning a garden. Soil, sun, and the promised bounty of a late summer harvest aren’t often associated with incorporations, contracts, and municipal bylaws. While passion, community support, and hard work are the seeds and soil of any successful community garden, the law provides community gardens with overall structure. For community gardens the law plays an important role in helping like-minded groups of people organize to grow fresh, local, healthy food in their communities.

What is a Community Garden?

A community garden is a place where a group of people collectively garden a piece of land. Community gardens provide participants with fresh, local, and seasonal produce. They create a sense of community among members and preserve local green spaces. While the concept is simple – get a group of people together to garden a piece of land – implementing the concept can be time-consuming and difficult. Who should be involved? What land is available and suitable? Is gardening permitted? How should the garden be operated?

Gathering Gardeners

Once a group of like-minded gardeners decide to form a community garden, they need to formally organize and decide how they want their organization to operate. Many community gardens choose to incorporate as societies under the Alberta Societies Act which allows five or more people to incorporate for any “benevolent, philanthropic, charitable, provident, scientific, artistic, literary, social, educational, agricultural, sporting or other useful purpose, but not for the purpose of carrying on a trade or business”. While not necessary to run a community garden, incorporating allows the organization to own land, enter into contracts, and borrow money. Incorporating also limits the personal liability of the incorporating members, meaning they are not personally responsible for the debts and obligations of the community garden.

In order to apply for incorporation, a community garden must choose a name, state its purpose on the incorporation application form, and create bylaws that govern the society. The community garden’s name cannot be similar to any other society or corporation’s name in Alberta. The name must also include three elements: a distinctive element, a descriptive element, and a legal element. The descriptive element is a word that makes the name unique and sets it apart from other societies or corporations, the descriptive element describes what the society is or does, and the legal element must be one of a list of permitted endings. Once a name has been chosen, the community garden must obtain a NUANS (Newly Upgraded Automated Name Search) report comparing the community garden’s name with those of existing societies and corporations in Alberta. The search results are submitted with the bylaws and application form when applying to incorporate.

The second requirement for incorporation is a purpose statement. The statement should set out the organization’s object or purpose for incorporating. For example, a community garden may state that its purpose is to provide its members with fresh seasonal produce and to encourage more people to try gardening.

The third requirement for the community garden’s incorporating members is to draft a set of bylaws. The bylaws set out how the community garden will be organized and how it will operate. There are numerous issues that must be addressed in the incorporating bylaws, including: membership, meeting procedures, the appointment and responsibilities of directors and officers, and the borrowing power (if any) of the society.

If your community garden would like to incorporate or if you would like more information on societies in Alberta please visit Service Alberta for more information and links to application forms.

A Place to Grow

Now that the community garden has been incorporated, it needs to find a place to grow. There are numerous factors to consider when looking at prospective garden locations: location within the community, access to water, accessibility for members, and soil quality. Two important legal questions are: how is the land zoned and who owns it?

In Alberta, every municipality must pass a Land Use Bylaw (LUB). The LUB divides the municipality into districts and sets out permitted and discretionary uses of the land. One of the goals of land use planning is to group similar and compatible uses to reduce conflict. For example, playgrounds and daycares are often permitted on discretionary uses of land zoned for residential use whereas recycling depots and waste service operations are only permitted in lands zoned for industrial use. In some cases, a municipality may not permit a community garden because of concerns over increased traffic, noise, or impacts on neighbouring land. In other cases, certain aspects of the community garden may be prohibited such as composting, keeping bees, raising chickens, or selling the garden’s harvest commercially. As a result, it is important for community gardens to find out whether there are any limitations on gardening activities in their area. To find out more, contact your local municipality.

Assuming that community gardening is allowed, the next step is to determine who owns the land. Oftentimes gardening space is provided by municipalities, churches, schools, hospitals or other organizations, but sometimes a vacant lot is the perfect garden location. In order to identify the land owner, the community garden can perform a Land Title Search. In Alberta, private land owners are listed on title. Title information is public record and anyone can request a title search. In general, the legal land description is required but various private registry offices can perform an additional search using the municipal address.

If the landowner is identified and agrees to allow the community garden, both parties should enter into a written agreement setting out the terms of the arrangement. In general, the landowner will agree to lease his or her land to the community garden for a set period of time under certain conditions. The lease should include the location of the land to be leased, the use of the land, the duration of the lease, any renewal provisions, and the amount of rent and security deposits. The landowner will want to be waived of any liability that could arise from the community garden’s use of the land and will likely require that the organization obtain liability insurance. The landowner will also want the organization to agree to abide by any laws, including municipal bylaws.

Getting Ready to Plant

Once the community garden has incorporated, identified suitable land, and leased the land from the owner, the next step is to organize the community garden’s member gardeners. A community garden will usually enter into temporary individual lease agreements with each member and draft a set of garden rules that describe how the garden will be run and how members are expected to behave.

Gardening Agreements are contracts between the community garden society and the individual member. Individual gardeners do not contract directly with the landowner since the society has already leased the land. A gardening agreement provides individual gardeners with a temporary and non-transferable right to garden in exchange for waiving their right to sue and for agreeing to be bound by a set of garden rules.

Garden Rules help clarify what is expected of gardeners. A set of garden rules help address issues such as the upkeep of the property, participant safety, and work expectations. Having a set of rules helps resolve disputes amongst members, helps reduce conflict with neighbouring land users, and provides for a more enjoyable gardening experience.

Conclusion

Creating a community garden takes a lot of passion, dedication, and dirt. It also takes some planning and a legal know-how to make sure the garden is a welcome and productive part of the larger community. As the children’s song goes: “the more we get together, the happier we’ll be” planting peas under the beautiful Alberta sun. Happy gardening!

The land gives us more than food, but can the law give back?

May 1, 2012 By Adam Driedzic

Conservation

The supervision, management, and maintenance of natural resources. – (Black’s Law Dictionary)

The responsible preservation, management and care of our land and of our natural and cultural resources. – (Alberta Land Use Framework)

A state of harmony between men and land. – (Aldo Leopold)

Set foot on Ruzicka Sunrise Farm and something feels different. Whether it is the diversity of birds, the native prairie, or dugouts that test cleaner than some municipal water sources, Don and Marie Ruzicka are clearly deserving of the recognition they have received for environmental conservation. The Ruzickas raise poultry, hogs and beef using a pasture-based model. In contrast to industrial norms, their management practices pursue environmental and economic sustainability together.

I originally went to Sunrise Farm seeking a farmer’s opinion on government policies, but within minutes Don and I were talking human values. We are both followers of Aldo Leopold, the pioneering conservationist whose 125th birthday would have been this year. As a young government officer, Leopold’s job was to kill wild animals that killed livestock and game species. As he came to respect his prey, he theorized that humans would benefit by protecting natural diversity rather than dominating the living world. He urged public policy-makers and private landowners to promote wildlife habitat, not just produce species for human consumption. In his later years, he took to restoring degraded farmland as a form of recreation that could help the environment. Published posthumously in A Sand County Almanac (1949), Leopold’s “land ethic” offered ranchers and farmers a more relevant philosophy than wilderness ethics derived from distant peaks. In doing so, he empowered those who work the land to care for the environment, not just care about it.

How important are today’s Leopolds to a sustainable future? Crucial, if one considers the historic settlement of western North America. Despite its vastness, the West is a land of limited livable space. The original homesteads were established on farmable land near water sources, in warm valleys, or on snow-free prairies. Governments kept ownership of the less hospitable, but geopolitically important mountains and forests. Consequently, not much of the West is in private hands, but much of the ecologically important land is. Public parks and wilderness areas simply cannot provide for our full ecological needs. Food is one. Others include clean air, clean water, healthy wildlife, and healthy landscapes. Maintaining a viable habitat for humans and the species on which we depend will require private conservation. Fortunately, despite any ideological differences, environmentalists and agriculturalists often share a belief that they are serving the public good. The big challenges are more practical.

Why is it that conservation is so rarely practiced by those who must extract a living from the land? It is said to boil down, in the last analysis, to economic obstacles. – (Aldo Leopold)

Making laws that promote the agriculture-environment connection is challenging. We need to keep land in agricultural production but we need agricultural practices to be environmentally friendly. New regulations could scare the agricultural sector as it is already struggling financially. Add new costs and farmland becomes more economically valuable for other uses. Flat fields and open ranges get eyed for suburban sprawl or for extracting natural resources from underground. Furthermore, land use regulations are often perceived to be at odds with private property rights. This standoff is especially tense in the West, where owning a piece of the frontier once promised freedom to do as one pleases. The solution will need to be viable for farmers and respect the place of land ownership in western culture.

One attempt to address this challenge is Alberta’s Land Use Framework. This provincial government policy intends to rely on public and private lands in pursuit of ecological sustainability. The Land Use Framework will create regional plans to provide a vision for land use, development, and conservation for defined geographic areas. Once made, regional plans could have legal weight over official decisions like subdivision development or natural resource permitting. To assist in pursuing these visions, several conservation tools are provided by the Alberta Land Stewardship Act. These options range from ‘soft’ to ‘hard’. The softest option is to rely on voluntary management practices. Simply hope that more landowners do what the Ruzickas do. Further hope that they make enough of a living to keep on farming. At the hard end of the spectrum is command and control regulation. Government could protect the agricultural or environmental value of land through “conservation directives” that prohibit certain uses. This is the option most likely to trigger property rights claims. ALSA allows landowners to challenge regional plans and claim financial compensation if conservation directives cause lost property value.

The middle ground is a series of ‘market based’ conservation tools: financial incentives to develop land, or disincentives to develop it. ALSA could allow landowners to:

receive public funding for research and development of conservation projects;
sell offsets to counterbalance the impact that other land users have on the ecosystem; or,
sell their development opportunities to developers in less ecologically important areas.

Market-based regulation has its critics. As discovered with greenhouse gas offsets, there needs to be assurance of results. Financial deals to conserve private land will likely need to be sealed by conservation easements.

Conservation easements are legal agreements to restrict development while allowing traditional land uses to continue. Landowners give up their rights to develop their land to a legislatively qualified organization, usually a ‘land trust’. Conservation easements are governed by legislation. Under ALSA, conservation easements can be used for environmental or agricultural protection purposes. Creating a conservation easement is voluntary, but once in place it is legally enforceable. Conservation easements run with the land, not the landowner, so the land will stay protected even if it is sold.

Conservation easements can protect farmland from real estate development but they do not prohibit the extraction of oil, gas, or mineable minerals. This is because in Alberta, like many other places, legal ownership of underground minerals is separate from ownership of the surface. Hold that thought as we explore whether reliance on the market is enough to promote the public good.

The week I returned from Sunrise Farm, the Government of Alberta launched the Land Trust Grant Program, allocating 5 million dollars to conservation easements. The first ALSA tool to be attempted is a straight financial incentive. To qualify for funding, private projects must align with public policy objectives to conserve ecologically important lands. The screening process will consider whether the lands in question are vulnerable to competing land uses. This program is a good start for a new public policy initiative, but the real test will come when there are competing public goods. Alberta legislation requires that natural resource projects be in the “public interest” before they can be permitted (Energy Resources Conservation Act; Natural Resources Conservation Act). The public interest test requires that permitting agencies consider the social, economic, and environmental impacts of the project. When a project is proposed, landowners and easement holders have a right to a hearing because their own legal interests may be directly and adversely affected. This provides an opportunity to raise public concerns; for example, the fact that their area is ecologically significant or that they received public funding for a conservation easement. They can use the hearings to generate political attention, pressure the resource company to negotiate, leverage commitments to limit surface disturbance, or ask the permitting agency to deny the project. Someday, private conservationists might be able to argue that a regional plan prevails over the permitting process. Until that day, the permitting agency has no obligation to conclude that the landowner’s personal preference or conservation efforts represent the “public interest”. The project can be approved, after which the resource company can force entry onto the land. The landowner will receive, you guessed it: financial compensation.

It is hard to make a man, by pressure of law or money, do a thing which does not spring naturally from his own personal sense of right and wrong.

– Aldo Leopold

If one theme emerges from the above examples, it is that current law and policy are reducing private conservation to property rights, and property rights to money. This is a very narrow interpretation of the interests associated with living on and caring for the land. Unfortunately, this narrow interpretation could undermine the entire spectrum of regulatory tools. Command and control regulation might not occur if governments fear paying compensation. If governments must pay to infringe on property rights, they will do so to extract natural resources before they do so to pursue ecological goals. Perhaps of greater concern, voluntary measures will be hard to encourage if what one cares most about could be lost anyway. Conservation may involve a utilitarian balancing in some definitions, but by other definitions it is a moral act. If so, the best reward may be for government policies, plans, and regulations to uphold human efforts and human values. Where private land has public importance, the question becomes not what rights you have, but what you do with them. Until that question is raised, the “public interest” will remain a long way from the ‘public good’, and the Land Use Framework a long way from Aldo Leopold’s land ethic

As I sat down to my Thanksgiving dinner, delivered by Sunrise Farm, the last thing on my mind was government policy. I was making the agriculture-environment connection by supporting farmers who support the environment.

Food Safety in Canada – A Balancing Act?

May 1, 2012 By Carole Aippersbach

Many of the food-related policies and the information that we rely upon as consumers have come about through the work of the Food Directorate and the CFIA.

In 1967, Pierre Trudeau famously stated that the Canadian government has no place in the bedrooms of the nation. What he didn’t comment upon was whether the government had a place in our kitchens. It did – and it still does. Although most of us rarely think of the federal government when we sit down to eat a meal, the reality is that every food we consume has been touched by government regulation. And now, more than ever, the reach of that regulatory power is under debate.

The general process of food regulation begins with the Canadian Food and Drugs Act (FDA). The FDA is an Act of the Parliament of Canada that, amongst other things, governs the production, import, export, transport, and sale of food. It was first passed in 1920 and was most recently revised in 1985. It attempts to ensure that foods sold in Canada are safe, and that their ingredients are disclosed.

The FDA gives the federal Minister of Health the power to make additional regulations and polices pertaining to standards for the safety and nutritional quality of food sold in Canada (whether imported or domestic). Naturally, however, the Minister cannot complete all of this work herself/himself, so, as is the case with most governmental powers, the bulk of the work has fallen to the public service. In this case, the part of the public service in question is the Food Directorate (FD). The Food Directorate is the federal health authority responsible for establishing policies, setting standards and providing advice and information on the safety and nutritional value of food. It carries out its responsibilities under the authority of the FDA, the Food and Drug Regulations, and the Department of Health Act.

The FDA also gives the Minister of Health the power to administer the provisions of the FDA that relate to public health, safety and nutrition. Again, however, this work has fallen to the public service. This time, to the Canadian Food Inspection Agency (CFIA), a science-based regulatory agency, tasked with assessing risk and enforcing all health and safety standards under the Food and Drug Regulations. The result: Canada’s food safety standards are established by Health Canada (largely through the Food Directorate), but the CFIA responsible for their enforcement.

The CFIA was created in April 1997 by the Canadian Food Inspection Agency Act, for the purpose of combining and integrating the related inspection services of three separate federal government departments: Agriculture and Agri-Food Canada, Fisheries and Oceans Canada, and Health Canada. In other words, its formation consolidated the delivery of all federal food safety, animal health, and plant health regulatory programs. The CFIA is also responsible for the administration of non-health and safety regulations concerning food packaging, labeling and advertising. The responsibility for the CFIA now lies with the Minister of Agriculture and Agri-Food; however, the Minister of Health (or, more specifically, the Food Directorate) remains responsible for assessing the effectiveness of the CFIA’s activities related to food safety. Many of the food-related policies and the information that we rely upon as consumers have come about through the work of the Food Directorate and the CFIA. An example that many of us see on a daily basis is the standardized “Nutrition Facts” label (specifically governed by the Consumer Packaging and Labelling Act and its regulations). This label was first introduced in 2003, and it became mandatory for most pre-packaged food products on December 12, 2005 (and it became mandatory for all on December 12, 2007). This label gives pertinent information not only about the calories per serving, but about 13 core nutrients (including the percentage of these nutrients’ daily recommended values). Another example involves the recalls we sometimes hear about, like the one that resulted from the listeriosis outbreak in August of 2008 (when 22 people died after consuming deli meats from a federally-regulated meat plant). Then there are the examples that most of us don’t see, ever, let alone on a daily basis. We may not directly know about these safeguards, but they are there trying to protect us. They can be seen in all of the legislation administered by the CFIA, including: the Plant Protection Act, the Meat Inspection Act, the Seeds Act, the Plant Breeders’ Rights Act, the Health of Animals Act, the Feeds Act, the Fish Inspection Act, and the Fertilizers Act.

So wherein lies the debate that I mentioned earlier? Well, upon a careful reading of the above, or the legislation, or even just the CFIA website, you’ll note that the CFIA has a dual role: protecting the public and assessing risk within the agri-food industry. This can be also be seen in CFIA’s statement of values, which states that the CFIA is dedicated to the “safeguarding of food, animals, and plants, which enhance the health and well-being of Canada’s people, environment and economy” and that it “works to protect Canadians from preventable health risks and provide a fair and effective food, animal and plant regulatory regime that supports competitive domestic and international markets.” In other words, although the CFIA manages food safety, it also assesses risk based not only on food-related concerns, but on concerns for economic forces. These two items are at very different ends of the spectrum, and sometimes they collide head-on.

The collision of these various concerns (food safety vs. the economics of food) has been in the news in the past few years, and there is a raging debate as to how to reach the correct balance within the current model. Consider the five following examples:

In 2010, after many big chains began to make fat-related claims and to provide nutrition numbers for their standard menu items, the Canadian government launched a menu verification program for coffee shops and fast-food restaurants. According to monitoring tests conducted between 2007 and 2009, fat-related claims for 14 out 33 menu items offered at fast-food restaurants understated the fat content. Under the program, the federal government could, and did, test the nutritional claims and held the restaurants accountable if they were found to have provided false information. In mid-2011, this menu verification program was cancelled.
In January 2007, the government proposed revising food regulations to make it clear to consumers that “whole wheat” is not necessarily “whole grain”. The difference? “Whole wheat” effectively means that about 70% of the germ is typically removed, so regular whole wheat bread can be made with flour with a significant percentage of the germ missing (and in scientific studies, it is “whole grains”, not “whole wheat” that result in a lower risk of obesity, cardiovascular disease and diabetes). Now, in 2012, five years after unveiling a proposal to end this consumer confusion, Health Canada now says it has no plans to change the food-labelling rule.
In 2009, the federal government, after a two-year monitoring program showed that voluntary reduction targets were not working, began to plan a two-year phase-in period for regulations to limit the amounts of trans-fats in Canadian foods. Why does this matter? Trans-fats, created by pumping hydrogen into liquid oil at an elevated temperature, raise the levels of low-density lipoprotein (or “bad cholesterol”) and can lead to clogged arteries and heart disease. They are added by the food industry to give products longer shelf lives. Documents obtained by the Centre for Science in the Public Interest, showed that, by 2009, the government had gone so far as, amongst other things, to draft the regulations and associated press releases. On February 7, 2012, the government, indicating that that the proposed regulations would be a “burden” on the food industry, announced that it would not make the regulations and, instead, would continue to rely on voluntary reductions.
In December 2011, the federal government stopped testing grocery-store product labels for exaggerated nutrition claims and unproven health claims. This, despite the fact that, according to internal records released under access to information, test results from previous years showed widespread problems with such food labels. The CFIA is reported to have noted that the program was put on hold due to “budgetary constraints”. Inspectors will continue to follow up on consumer complaints.
As we all know, the CFIA announces recall orders. What many do not know, however, is that recalls are not necessarily always publicized. The CFIA does health-risk assessments and issues public recall notices based on the degree of danger that an item poses. This is the case in many other countries as well. The idea is that consumers would soon be overwhelmed by the sheer number of recalls, many of which would pose low risk (and might not yet even be in stores). For example, a 2009 study found that of 49 recalls related to bottled water, only 7 were made public.

As these examples demonstrate, food safety is quite the balancing act. There are laws, but how effective can these laws be if they are not enforced? Budgets are tight and belts must be tightened, but how much regulation is really too much? And how much is too little? Consumers may not want to be constantly alarmed, but the argument of “little risk” is arguably cold comfort to the few who are ultimately affected (especially if there is a death). For example, consumers with allergies or with Celiac Disease now, more than ever, cannot rely on labels. How much of a “burden” is too much for the companies profiting from the food business? How can Canadians make informed choices, if they are not informed?

These are all very difficult questions, and ones to which no clear answers are readily apparent. The roles of Health Canada and the CFIA are ever-evolving – they continue to revolve around globalization, societal changes and the advances of science and technology. No easy task – and not one for the faint of heart. Bedroom, shmedroom – the heat’s in the kitchen!

Do Canadians Have a Right to Adequate Food?

May 1, 2012 By Linda McKay-Panos

Individual Canadians generously contribute to food banks. What about the state’s obligation? Do Canadian governments (federal, provincial, municipal) have any legal obligations to address food insecurity?

It may come as a surprise, but in Canada we have significant numbers of people who suffer from food insecurity. According to Health Canada, in 2007 to 2008, 7.7% (961,000) of Canadian households were food insecure; this represents 1.92 million adults and children aged 12 to 17. Health Canada’s definition of food insecurity is households who are “uncertain of having, or unable to acquire, enough food to meet the needs of all their members because they ha[ve] insufficient money for food” (Health Canada, Household Food Insecurity in Canada in 2007-2008: Key Statistics and Graphics). It is important to note that these statistics do not include homeless individuals. According to the World Food Summit, 1996, “Food security exists when all people, at all times, have physical and economic access to sufficient, safe and nutritious food that meets their dietary needs and food preferences for a healthy and active life.” The World Health Organization notes that:

Food security is built on three pillars:

Food availability: sufficient quantities of food available on a consistent basis

Food access: having sufficient resources to obtain appropriate foods for a nutritious diet

Food use: appropriate use based on knowledge of basic nutrition and care, as well as adequate water and sanitation.

Why is food security an important issue for Canadians? There are physical and mental health implications of food insecurity; these are very significant for children. In addition to nutritional concerns, child and youth hunger can be associated with poor general health, chronic conditions and asthma (see Sharon Kirkpatrick, Lynn McIntyre, and Melissa Potestio “Child Hunger and Long-term Adverse Consequences for Health”(2010) Arch. Petrdiatr. Adolesc. Med. 164(8) pp 754-762).

Another effect of food insecurity is the increased use of food banks. In HungerCount 2011, the Alberta Food Bank Network Association reported that food bank use was 75% higher in March 2011 than in 2008. In addition, 44% of those food banks assisted were children and youth, and one third of the households helped had income from current or recent employment (HungerCount 2011 – Alberta Provincial Report)

Food Banks Canada has determined that either short or long-term low income is at the root for the continued need for food banks across Canada (HungerCount 2011, page 3). Food banks across Canada have become part of our social fabric. They are supported by charitable and food donations, and individuals must approach them for assistance. Food banks often have trouble keeping up with the demand for their services. Individual Canadians generously contribute to food banks. What about the state’s obligation? Do Canadian governments (federal, provincial, municipal) have any legal obligations to address food insecurity? While there may be moral and political obligations to provide for food security, I would like to focus on whether there are any remedies for food insecurity available under domestic or international law.

The right to food security may be seen as part of the body of economic, social and cultural rights as covered by the United Nations and other international legal instruments. The International Covenant on Economic, Social and Cultural Rights (acceded to by Canada in 1976) (“CESCR”) provides that states are obligated to protect economic and social rights, including the right to be free from hunger and to an adequate standard of living, including food (see Article 11). The Convention on the Rights of the Child (ratified in 1992) (“CRC”) provides that the state must ensure that children are provided with adequate nutritious food (Art. 24) and an adequate standard of living (Art. 27). In addition, the United Nations Committee on Economic Social and Cultural Rights released Comment 12 in 1999, to interpret the right to adequate food as set out in Article 11 of the CESCR.

According to Lorenzo Cotula and Margaret Vidar, writing for the Food and Agricultural Organization of the United Nations (The Right to Adequate Food in Emergencies, 2002 at page 25):

Under international law, States have both “progressive” and immediate obligations to realize the right to adequate food. State obligations may be classified in three categories: the obligation to respect, the obligation to protect and the obligation to fulfil. In turn, the obligation to fulfil includes an obligation to facilitate and an obligation to provide. This classification has been endorsed by the CESCR in its General Comment 12, as well as by a great number of scholars.

The obligation to respect means that governments must not violate the right to food; for example by evicting people from their farms. The obligation to protect means that government must protect citizens against violations by third parties; for example, by passing food safety regulations. The obligation to fulfil means that governments should facilitate the right to food by stimulating employment or enabling an environment where people can feed themselves, and as a last resort, act as provider where people cannot feed themselves because of reasons beyond their control.

Currently, the ability of individual Canadians (or civil society) to legally enforce these international obligations in the international sphere is limited. Once the federal government has ratified an international treaty, the government is obligated to comply with the provisions thereunder. However, failure to comply usually results in placing Canada in violation of its international obligations; a perhaps embarrassing political situation that may be without legal remedy in courts. In addition, ratification of international human rights treaties often brings with it the obligation for states to periodically report on their progress under the treaties. Canada does have reporting obligations under several human rights treaties, including the CRC and the CESCR. The United Nations will respond with recommendations for changes that, once again, are not legally binding on Canada, but perhaps politically embarrassing. The United Nations Human Rights Council has instituted a relatively new Universal Periodic Report system and Canada was among the first states to report and be scrutinized by its peers (other states) in 2009. Again, there were a number of comments and recommendations with respect to poverty and standard of living in Canada, particularly of new Canadians and Aboriginal peoples. However, there are no legal obligations on the part of the Government of Canada to abide by the recommendations, nor legal consequences for failure to fulfil them.

Some of the international treaties have Optional Protocols attached, which, in certain circumstances, (e.g., after all domestic remedies have been exhausted) permit individual Canadians to complain directly to the United Nations. Unfortunately, the most directly applicable Optional Protocol to the Covenant on Economic, Social and Cultural Rights has not been signed by Canada. Canadians do have the ability to complain to the United Nations under the Optional Protocol to the Convention on Civil and Political Rights, but will need to argue that food insecurity fits under an Article of that Convention in order to complain. And, once again, even if we can complain to and be heard by the United Nations, the resulting communications from the United Nations are not legally enforceable in Canada.

International human rights treaties have two roles in Canada’s domestic legal system. First, they may be implemented into Canadian domestic legislation. This means that Canadians would be able to obtain a legal remedy in a domestic court if such a right had been implemented into our legislation. Second, courts interpreting our Canadian Charter of Rights and Freedoms (“Charter”) will often turn to international human rights law for assistance. This often involves looking at either international treaties that Canada has ratified, or the body of customary international law (law that has arisen by custom over time rather than being written into a treaty).

Implementation of the right to food or the right to an adequate standard of living into Canada’s domestic law has been sketchy at best. The right to food is not explicitly written into Canadian statutes. We do have some food safety, agriculture, health, and welfare laws that may be seen to support the right. For example, Quebec has An Act to Combat Poverty and Social Exclusion, RSQ 2002, c l-7; Ontario passed the Poverty Reduction Act, SO 2009, c 10; Manitoba passed the Poverty Reduction Strategy Act, CCSM, 2011 c P-94.7; Nova Scotia has the Poverty Reduction Working Group Act SNS 2007, c 31. This legislation provides for the implementation of strategies to reduce poverty and promote social inclusion.

As for using international laws to assist in interpretation of the Charter, the Charter does not directly contain many social and economic rights; food banks were not prevalent when the Charter was drafted. While the Canadian government has stated internationally that the Charter as interpreted by the Supreme Court of Canada does protect internationally recognized economic, social and cultural rights (Graham Riches, “The Human Right to Adequate Food: Seeking Domestic Compliance with Canada’s International Obligations” Canadian Social Welfare Policy Conference, 2005 University of New Brunswick) Charter case law to date has not been as helpful as it could be. Charter sections 15(1) (equality provision) and 7 (right to life, liberty and security of the person) are the most likely sections to be used to argue for a right to food (or other economic, social and cultural rights that involve dignity, security and equality). The Supreme Court of Canada has stated Charter rights must be interpreted consistently with Canada’s international human rights obligations, including economic and social rights (see for example Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817). However, the United Nations Committee on Economic, Social and Cultural Rights has stated its concern that governments in Canada frequently argue in court that social and economic rights claims under the Charter are merely ‘policy objectives’ and should not be subject to judicial remedies (Bruce Porter, “Judging Poverty: Using International Human Rights Law to Refine the Scope of Charter Rights” (2000) 15 Journal of Law and Society Policy 117 at 139-40). Indeed, assertion of social and economic rights arguments have met with divided success. For example, in the 2002 Supreme Court of Canada case of Gosselin v Quebec (Attorney General), [2002] SCR 429, Gosselin argued that Quebec’s social assistance scheme, which provided differential welfare benefits to those under age 30, violated Charter sections 7 and 15(1). A majority of the Supreme Court of Canada held that Gosselin’s Charter rights were not violated.

As for other legislation, Canadian and provincial human rights codes protect from discrimination on the basis of source of income (Nunavut, B.C., Alberta, Manitoba, New Brunswick, Nova Scotia, P.E.I.) and/or social condition (Quebec, New Brunswick and Northwest Territories) but none of them directly provides for the right to food or an adequate standard of living.

It seems ironic that in order to exercise our well-protected civil and political rights, Canadians need to have food security and other economic, social and cultural rights protected. However, these protections under Canada’s current legal regime are inadequate. Which is more surprising: that in a rich country like Canada there are so many people who face food insecurity, or that there are so few direct legal provisions for the right to food?