At the Intersection of Food and Animal Law

By Abra Brynne. December 16, 2016

While attending the Future of Food Law & Policy in Canada conference in Halifax in early November, I had the opportunity to present on a panel entitled “At the Intersection of Food and Animal Law”.

The panel presentations were quite diverse and demonstrated the wide range of interests and expertise that exist, even in a sub-set of food law that focuses on animals.

The panel was launched by Jessica Eisen, with the Harvard Animal Law & Policy Program, who traced the evolution of food law and animal law. Her presentation made it clear that as a discipline or focus of practice, animal law predates food law. As early as 1995 the Animal Law Review was founded, reflecting the growing attention and legal practice focused on animals in the food supply chain, while the first journal devoted to Food Law was not launched for another ten years. As food activists, it is useful to understand that animal law and food law have developed from distinct drivers: care for the wellbeing of animals has been the predominant theme in animal law while food law has coalesced around the phenomenon of food businesses seeking legal advice and representation as they navigate the regulatory regimes within which they operate.

Next up were Marie-Claude Desjardins and Sabrina Tremblay-Huet from the University of Sherbrooke in Quebec. They highlighted the very real issues associated with labeling. Using eggs as a case in point, food labels that have no clear definition and may also suffer from poor translation between Canada’s two official languages contribute to confusion and undermine the efforts of well-intentioned and informed consumers. For example, free run and free range are both commonly translated into french as “en liberté”, though the terms in English convey distinctly different management practices. In 2012, the Supreme Court of Canada defined the average consumer as being both “credulous and inexperienced” (Richard v Time Inc., 2012 SCC 8). And under Quebec’s Consumer Protection Act, manufacturers may not fail to include “an important fact in any representation made to a consumer”, with important fact understood to be any information that, if conveyed to the consumer, would affect their purchase decision. If those credulous and inexperienced consumers also happen to be animal rights activists, whether or not the chickens actually do get to range outdoors and express their normal behaviour will be a key factor in their egg purchasing decision.

My presentation was on meat regulations from the perspective of the impact on the operators. I began with an overview of the history of the meat sector in North America and how its early days have contributed to the financial model that dominates and constrains the industry. I followed that with a brief overview of the impact in BC on the meat sector of changes in the meat regulation in 2007. The drive to harmonize meat regulations across Canada has meant that they are consistently pushed towards the more prescriptive and costly federal regulations, a distinct challenge for smaller scale enterprises in a sector that has a notoriously small profit margin at the best of times.

Our panel wrapped up with a provocative presentation by American food lawyer, Michael Tenenbaum. Michael reviewed the outcomes of a series of court cases in the USA that relate to animal welfare issues. His presentation demonstrated that concepts like “humane” are not actually all that clear and can be quite subjective, particularly in how they are made manifest in law. This can be further complicated by, for example, the fact that the Food & Drug Administration in the USA only has a mandate to address food safety, not animal welfare, in their oversight of food labeling. He wrapped up with a quote from “The A-Z Encyclopedia of Food Controversies and the Law” by Elizabeth M Williams and Stepanie J Carter that articulates the issue related to who is determining what is ethical food and driving regulation on behalf of a larger population. “These people might justify the use of force – here the force of law – because of their belief that they are morally right and that they are protecting those who do not eat properly from their own ignorance.” (pg xxv) As a long time food law activist, that has certainly given me something to think about.

I continue to be grateful for the opportunity to participate in The Future of Food Law and Policy in Canada Conference and hope that it is just the first of many. As Williams and Carter rightly point out: “Does the written law reflect society’s values and norms or influence them? The answer is it does both. Knowledge of the law of food allows a person to both recognize what is reflected from society and influence food law by putting pressure on legislative bodies, bringing lawsuits, and informing the public.” (xxix)