A History of Food Law in Canada Part V

The 1950s awoke to the dawn of the modern Canadian Food and Drugs Act (FDA), which, although it has sustained amendments and additions over time, remains the fundamental underpinnings of our current federal food legislation. The process of modernizing the earlier 1920 version of the FDA began in earnest in 1949. The new Act was given Royal assent in 1953 and came into force July 1, 1954. The current FDA (Chapter F-27, of Revised Statutes of Canada, 1985 – as amended) was part of a housecleaning effort by the federal government in the mid-1980s to reconsolidate the many amendments to federal statutes, a process that has occurred at least six times since confederation.

In 1961 the Guide for Food Manufacturers and Advertisers was first introduced, a precursor to our current 2003 Guide to Food Labelling Advertising. The guide was, and still is, an essential information resource for broadening the understanding of food regulations, and its need was a sign that food law was becoming more complex. It provides a platform for the interpretation of the regulations and related guidelines and can be updated as needed. Without it many regulations would exist only in skeletal form; the guide provides the meat on the bones that defines its character.
By 1969 the first human stepped on the moon and the Tang generation had arrived. Orange-flavoured Tang, first marketed in 1959, was popularized when used by the Gemini space program and by chance became the poster child for processed food. By this time however, processed foods were not the only thing “taking off” in the jet age. Instant coffee had been around since the early 1900s, freeze-dried coffee was invented in 1938, and TV dinners introduced in 1953. Processed foods were beginning to shape our nation like never before.

The advances in food processing, packaging technology and refrigeration, combined with the mass appeal for convenient packaged foods, were challenging food laws to keep pace. TV broadcast advertisements in particular, combined with limited information on food packages, created concerns related to misrepresentation and exaggerated claims, including price claims. In the mid-’60s the Consumer’s Association of Canada appealed to the federal government for the creation of a department that would look after the interests of consumers. The result was the creation of the Department of Consumer and Corporate Affairs (CCA) in 1967 under the Bureau of Consumer Affairs. Responsibility for reviewing broadcast advertisements was also transferred to the CCA from the Food and Drug Directorate of the Department of National Health and Welfare, which had conducted this since 1932. While the CCA was dismantled in a 1993 departmental overhaul, it did spawn an important piece of Canadian legislation, the Consumer Packaging and Labelling Act and Regulations (CPLA&R), which still exists today. Given Royal Assent in 1971 and coming into force in 1974, the act pulled together some 15 other statutes dealing with labelling, including net quantities, statement of identity, and dealer name and address. The regulations governing labelling of prepackaged foods came into force in 1976. The CPLA provided uniformity in labelling of consumer products, provided required label information so consumers could make informed choices, had a big anti-fraud element, included standard container sizes for certain food products and included provisions for bilingual labelling.

The CCA, which enforced certain provisions of the FDA&R, was involved in one of Canada’s most notable Supreme Court challenges. In 1979 the Supreme Court was asked to resolve two questions regarding light beer – whether Labatt Special Lite beer violated the standard of identity for “light beer” made under the Food and Drug Regulations (FDR), and whether provisions in the FDA to make such standards were constitutional. The court ruled, although not unanimously, that the provision in the Act in this regard is not constitutional, as Parliament had only a narrow authority under the British North America Act (known since 1982 as The Constitution Act, 1867) to make laws in respect of trade and commerce. The court’s judgment essentially affirmed that the government does not have competence in making “minute rules,” (light beer standard), “for regulating particular trades.” In other words, the federal government did not have the authority to make nit picky trade and commerce laws applicable to a single industry. This had enormous implications with regard to all similar standards. In 1987 the FDA was amended to correct this and preserve the government’s authority with regard to standards in the proper trade and commerce context. The FDR was also amended. As a result we now have extra light, light and regular beer standards.

Gary Gnirss is a partner and president of Legal Suites Inc., a Mansfield, Ont.-based firm specializing in regulatory software and services. E-mail: president@legalsuites.com