Canadian Lawyer

34 A P R I L 2 0 1 9 w w w . c a n a d i a n l a w y e r m a g . c o m compliance help. "So, they're asking how can we help them develop a compliant label or how can we help them review their food to make sure that they're meeting Canadian regulatory requirements with respect to, for example, food additives. They're also looking for information on what formula changes they might need to make and how they can most efficiently plan their business moving forward." Glenford Jameson says that level of diversity is the reason food law is such a dynamic area. "The problems are just fascinating generally," says Jameson, principle at Toronto-based G.S. Jameson & Co., a private practice specializing in food law. "The things that come across my desk are quite varied week to week — a novel food application, an investigation into food additives or companies looking for test market authorization for products. They all have different components to them, and that's something that's really satisfying." He adds that because his clients each have different and sometimes competing goals, "you have to be sensitive and understand what they're looking for, what their concerns are, what their regulatory exposure is." What's cooking? In 2012, the federal government passed the highly anticipated Safe Food for Canadians Act, designed to make our food system safer and oversight more encompassing. That was followed this January by the Safe Food for Canadians Regulations, which again changes how Canadian food businesses operate. For the first time, many businesses are facing facility licensing, food safety compliance audits and the need for detailed traceability and recall plans. In addition, the new regulations are less prescriptive in some areas than in the past, leaving more room for interpretation in how food and beverage manufacturers reach compliance. Jameson says these changes will require more lawyers with in-depth knowledge of food regulations. "Moving toward an outcomes-based process does lead to more discretion on the part of the regulator to determine what's acceptable," he says. "When you start to do that, it's harder to reach the letter of the law, and it becomes a little subjective. That's when lawyers show up." Katrina Coughlin, an associate at Gowling WLG, who focus- es on commercial and regulatory law related to foods, natural health products and animal feeds, says the new regulations may mean more room for error. "I'm frankly interested to see if we will eventually get to a place where there's more litigation," she says. "We haven't seen a lot of litigation up to this point, and I think the new regulatory changes won't necessarily impact that trend, but we're certainly keeping a pulse on things to see if there are any developments in that sense." "The pot has been simmering for a while in terms of there being the potential for more litigation in Canada related to food law," says Catherine Bate, a partner in Miller Thomson's Toronto office and leader of the marketing, advertising and product compliance group. "Certainly, in the area in which I practise, there's been a lot more litigation in the U.S., right across the board. We see a lot of class actions arising in the U.S. on essentially misleading advertising but very specific to the food sector. I would imagine that we'll see more of that coming to Canada in time." Law firms working in the food space are already gearing up for more demand, as food and beverage companies scramble to keep up with the regulatory changes. "All the regulatory changes create a lot of uncertainty for companies, both as the government is introducing new legislation and then while waiting to see how it's actually implemented and what it will mean in a practical sense," adds Coughlin. "It creates a lot more questions than if we were operating in a steadier environment. And based on our experience as a team, there is a growing recognition among food and beverage companies of the role that food lawyers can play in terms of providing external guidance." Bate also supports Miller Thomson's agribusiness and food group. The "new regulations will require more lawyers with specific knowledge about the food system," she says. "Like any new regulatory development, and particularly ones such as this on the technical side, it's an area to really roll your sleeves up and dive in to really understand the intersection of the industry and the whole food chain. So, I think it's something that would be increasingly difficult for someone who touches a file from time to time in this area, as opposed to getting really immersed in the industry itself." A growing field The number of self-identifying food lawyers may jump in the next few years, as interest among law students about food- related issues grows. Last fall, professor Heather McLeod- Kilmurray and PhD candidate Angela Lee introduced two seminar classes in food law at the University of Ottawa's Faculty of Law, with great success. "Last year, we had about 18 students; this year, we have 23 registered," says Lee. "So, the fact that this is a brand new course and we're already seeing such enthusiasm "Food law is really the legislation, legal issues and policies that regulate production, trade and handling of food. And it involves a very broad spectrum of actors." Laura Weinrib, Blake Cassels & Graydon LLP

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