Upsetting the Apple Cart: Certifying Class Actions for Food Labelling Reform

AuthorMichela V Fiorido
Michela V Fiorido
Abstract: This essay explores the potential of class actions
as a vehicle for Canadian consumers to activate change in
the area of food and beverage labelling. Misleading and de-
ceptive food labels negatively affect large numbers of people
f‌inancially, physically, and emotionally. The cost, complexity,
and privacy of individual actions combined with the pros-
pect of low compensatory dam ages render them unfavour-
able both in obtaining justice for consumers and in creating
substantial change. The use of class actions to rectify mis-
leading, tortious, and ant icompetitive conduct, among other
transgressions, would largely satisfy t he three major goals of
class proceedings: access to justice, behav iour modif‌ication,
and judicial economy. Furthermore, clas s actions can be used
more effectively in lieu of traditional avenues of legislative
reform to bring about much-needed regulator y change. This
paper strives to be of w ide relevance and is written w ith the
intention of being both interesting and accessible to the legal
community and to lay consumers alike. In examining differ-
ent strategies for plainti ffs, particularly wit h regard to getting
over the certif‌icat ion hurdle, this paper w ill demonstrate that
class actions a re a viable way for consumers to lead the trans -
formation toward labelling transparency against a defective
regulatory regi me as well as the exag gerated and sometimes
outright deceitful labelling tactics of powerful members of
the food indust ry.
CCAR 11-1.indb 93 10/19/2015 11:49:47 AM
CCAR 11-1.indb 94 10/19/2015 11:49:47 AM
Michela V Fiorido*
There is perhaps nothing more political, or more personal, in a person’s
day than the act of food and beverage consumption. For the majority of
Canadian s, maintaining good health has been t he most inf‌luential fac-
tor in the consumption choices they m ake,1 with food labels ser ving as
the most com mon source of nutr itional inform ation.2 However, just as the
label is the principal means of conveying in formation, it is also t he prin-
cipal means of selling a product.3 Consequently, consumers are bom-
barded with a sur feit of labels competing for their attention. Many labels
feature unregulated claims such as “100% Natural” or “Wholesome,” as
well as indications t hat their products have health benef‌its — all while
omitting reference to ingred ients or processes that some consumers con-
sider to be damaging to health.
While some food labelling may be dismissed as “mere puffery,”4 there
are many questionable lab els that truly compromise the intende d choices
of Canadian consumers. Although the current reg ulatory scheme aims
to fulf‌ill leg itimate policy objectives regarding consumer health and
safety, it is also informed by corporate and market interests. Therefore,
* Michela V Fiorido, BA, M A, JD, is an associate at Har ris & Company LLP in
Vancouver, where she has recently complete d her articles after gr aduating
from the Universit y of British Columbia. While at H arris, she hopes to car ve
out a niche defending cl ass action employment lawsuit s. Special thank s are
due to Luciana Bra sil of Branch MacMaster L LP for her encouragement and
guidance in t he writing of this p aper.
1 See Canadi an Council of Food and Nutrition, Tracking Nutrition Trends: A 20-
Year History (Mississ auga, ON: CCFN/CCAN, 2009) at 19, online: Can adian
Foundation for Dietetic R esearch aring/Tracki ng-Nutrition-
Trends -(TNT).a spx.
2 See ibid at 25.
3 See Michael Hunt, “Ma nufacturers’ Needs” in J Ra lph Blanchf‌ield, ed, Food
Labelling (Cambr idge: Woodhead Publishing, 200 0) 13 at 13.
4 Mere puffs are in sincere sales claim s not meant to be taken seriously or t o
have legal conse quences: see Carlill v Carbolic Smoke Ba ll Co, [1893] 1 QB 256
(CA) .
CCAR 11-1.indb 95 10/19/2015 11:49:47 AM

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