It's common knowledge that labelling and advertising of
foods must be "truthful and not misleading," but what
does this really mean, and what do companies have to do to comply?
Recently, this column looked at the due diligence defence available
to food companies in Canada. This defence needs to be carefully
considered, not only with respect to food safety, but also
labelling and advertising.
Making food claims that are not misleading to consumers can be a
difficult feat. This is especially true as marketers come up with
new claims to differentiate products and meet changing consumer
preferences, including expectations regarding food production and
social responsibility (for example, animal welfare).
While the Canadian Food Inspection Agency (CFIA) has published
some interpretative guidance for potentially misleading claims
under section 5(1) of the Food and Drugs Act and section
7(2) of the Consumer Packaging and Labelling Act, the onus
is on companies to ensure they are compliant. At minimum, this
should entail a two-step analysis of potential claims, taking
"reasonable care" to ensure claims are truthful and not
misleading, as required for a due diligence defence.
1. Is the claim true?
Depending on the supply chain from farm to table, ensuring
truthfulness can be complicated. For example, consider a claim for
The farmer who cares for the hens can be confident this claim is
true, but what about a food retailer? If the retailer buys directly
from the farmer, did they do an on-site visit to ensure cages
weren't being used? Do they have a contract in place with the
farmer that warrants the hens are, and always will be, housed
without cages? Is a third-party certification system being relied
If there is a grader or processor between the farmer and the
retailer, does the processor only process cage-free eggs? If not,
what system is in place to ensure the cage-free eggs aren't
co-mingled with other eggs? What contracts and/or verification
activities does the retailer have in place with the processor and
any other members of the supply chain to ensure the cage-free claim
is always true?
Ultimately, the company making the claim needs to consider what
action it has taken to ensure the claim is true, both before the
claim is made and on a going-forward basis, and whether that action
is sufficient to state that they have taken reasonable care. Case
law related to the due diligence defence is limited, but as
previously discussed in this column, it suggests that simply
relying on a supplier's assurance may not be enough.
2. What does the claim mean to consumers?
A true claim can still be misleading to consumers. For example,
CFIA guidance addresses "false uniqueness" claims. If a
product is preservative-free this may be a truthful claim; however,
if the type of product doesn't typically have preservatives,
the claim is misleading because it implies a benefit in comparison
to other similar products.
When developing claims, consider how consumers may interpret and
understand them. Continuing with the cage-free eggs example, what
does "cage-free" mean to consumers? Does this claim imply
the chickens are allowed to roam freely, or can they be confined in
an enclosure? Do consumers believe the laying hens have access to
It is risky for companies to simply assume consumers will
understand a claim in the intended manner. When it comes to due
diligence on potentially misleading claims, taking reasonable care
may include conducting focus groups or other market research on
what the claim means to consumers, and considering how to present
sufficient information to avoid a misleading impression about a
product's quality, value or merit.
Until further guidance or case law sheds light on what is
"reasonable care" with respect to false or misleading
food claims, it is up to companies to consider whether their
practices may be sufficient to found a due diligence defence.
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