Canadian Lawyer InHouse

MAY 2015 20 INHOUSE on its label and in any marketing campaign. "It doesn't mean you can't be creative, but truth in advertising is never a bad thing. You don't want to make claims you can't back up," says Theall, especially if there is any scientifi c or medical benefi t put forward. That view is echoed by Lockwood at Osler. If there is a health benefi t claimed, "it should be substantiated by the science," he says. As well, regulatory compliance will obviously reduce the litigation risk. "You may still be exposed but at least you have a defence," says Lockwood. Another area where potential problems may arise is the fact that many of the food products sold in Canada, originated in the U.S. It is not just a question of designing a la- bel in both offi cial languages, says Reinertson. "The regulatory scheme here is very different. You can't simply Canadianize labels at the last minute," she says, adding that it is important to review labels regularly. "The statements made on labels are higher risk than advertising," explains Reinertson, because not all consumers may have seen the marketing campaign. Reliance on any claims on labels will impact the damages, if a case proceeds to that stage. The potential for food product litigation can also capture outside parties and even non-profi t organizations. In 2013, a class action in the U.S. was initiated against Campbell soups and the American Heart Association over health endorsements provided as part of its "heart check" program. The Heart & Stroke Foundation announced last June that it was phasing out its health check program in Canada, which had faced allegations it was endorsing food products that were not healthy (the non- profi t group declined to comment about its decision, when contacted by Canadian Lawyer InHouse). With most food product cases brought in the form of a class action, the legal battle is often whether it is the appropriate forum to hear the dispute. It is rarely about the merits of the claim or the marketing standards that will apply. Lawyers in other provinces point to Quebec as the one jurisdiction where class actions in this area have a better chance of success, in part because of its consumer protection legislation. David Assor, a Montreal lawyer who represented the plaintiffs in the Danone class action, agrees that other provinces are more strict about requiring reliance on what is claimed on the label. "But the courts [in Quebec] are by no means rubber stamping motions for authorization," says Assor, a partner at Lex Group Inc., which specializes in class actions. "You still have to show misleading or false representations," he says. If a claim is "just a marketing tool," it is more susceptible to litigation, states Assor. In the area of food product liability, what has not been resolved in the courts is what kind of onus is on the consumer to assess the claims being made by manufacturers and then make a common sense decision on whether or not to make a purchase. In part, this may be because of how few cases are decided on the merits. The most noteworthy ruling involving the standard for consumers is the Supreme Court of Canada's 2012 decision in Richard v. Time Inc. CANADIAN LAW LIST 2015 KEEPING PACE WITH THE CHANGING LEGAL COMMUNITY FOR OVER 130 YEARS This is more than a phone book. It is your instant connection to Canada's legal network. With Canadian Law List 2015 you have access to: ȕ an up-to-date alphabetical listing of more than 86,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges across Canada ȕ all contact information supplied for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown Corporations ȕ legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid and other important law-related offices )BSECPVOEȕ1VCMJTIFE'FCSVBSZ FBDIZFBSȕ- ȕOOTVCTDSJQUJPO ȕOOFUJNFQVSDIBTF MVMUJQMFDPQZEJTDPVOUTBWBJMBCMF 1MVTTIJQQJOHIBOEMJOH BOEBQQMJDBCMFUBYFT ORDER YOUR COPY TODAY! Call 1.800.387.5164 or visit www.carswell.com Untitled-1 1 2015-04-07 3:08 PM

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