Food & Beverage Law: An Emerging Species of the Admin Law Genus

Administrative law as a practice area sometimes gets a bad rap for being comprised of Byzantine rules of procedure (often completely unique to the specific tribunal in question), frustrating decision makers, and shifting standards of review. The name itself “admin law” is also guilty of being a little boring, and is not nearly as descriptive as other practice areas like “criminal law” or “immigration law”. To the uninitiated, administrative law is a practice area that can come across as broad, dry, and overly technical. For those that feel that way, the profession has done you a disservice.

In practice, admin law is about a lot more than just Dunsmuir and the Baker factors. Depending on your interests, and the needs of your clients, an admin law practice can be incredibly rewarding and as diverse or as niche as you like. The emerging practice area of food & beverage law is an excellent, concrete, example of the latter.

Over the last several years administrative law practitioners and academics across North America have slowly but steadily started identifying and shaping a coherent set of issues and subjects that make food law a bona fide species of the admin law genus. The evidence of this doctrinal evolution is ample and can be found at UCLA’s Resnick Program for Food Law and Policy, Michigan State University’s Institute for Food Laws and Regulations, and Harvard’s Food Law and Policy Clinic. In Canada ,Dalhousie’s Schulich School of Law recently hosted a food law & policy conference, and the University of Ottawa’s Faculty of Law will be doing the same this coming November.

Food & beverage law’s recognition as a distinct practice area is not limited to the halls of academia. The webpages of some of Canada’s largest national and international law firms identify food & beverage law as stand-alone areas of legal expertise.

Of course administrative law issues relating to food and alcohol, agriculture and labelling have always been alive and well in Canada. Every day Canadians look to health inspectors to ensure that the food we eat is safe, and assume that working behind the scenes are still other agencies ensuring the labels on packaged food are accurate and reliable. Put simply, the list of everyday assumptions that consumers make about the safety, quality, origin and composition of the food they eat is lengthy.

Until recently much of the work and research done in this area was attributed to other practice areas like “agriculture” or “consumer products”. To be certain these, and related issues, have always been captured under the auspices of administrative law, but only recently have the participants in these administrative law regimes started to identify themselves as working in a unique field where various statutes and policies overlap to form the discipline of food & beverage law.

Consider grains or livestock destined for the glass or the plate. A litany of federal, provincial and municipal laws and policies will impact how that plant or animal is grown or raised, processed, transported, sold, distributed, labelled (organic?), cooked or fermented, and eventually consumed by the end purchaser. Food & beverage law practitioners deal with these concepts, and the rules and regulations surrounding them, on a regular basis.

Anecdotally it seems like previous generations (or our younger selves) cared less about, or took for granted, how the food and beverages they consumed on a daily basis came to be. Today food safety, the treatment of animals, GMOs and pesticides, environmental sustainability, and even less definable concepts like “authenticity” are front of mind for the producers, retailers and consumers of food and beverage. Even fast food chains and behemoth retailers like Walmart are falling in line with Canadian society’s evolving demands on its food suppliers: Walmart recently announced that “every cut of beef” it sells is 100% Canadian AAA Angus, and Cara Foods, the owner of chain restaurants Harvey’s, Swiss Chalet, Kelsey’s and East Side Mario’s, will switch to cage-free eggs for its entire supply chain by 2036.

Similarly a “dumb decision”, like the one made by Earls in 2016 to cut ties with Canadian beef suppliers in favour of American suppliers, can make national news headlines.

Put simply Canadians are spending more time thinking about their food: where it comes from, how it is sourced, treated and graded. Moreover they want accountability, traceability and responsibility. These are not issues of concern limited to foodies or the overly-sensitive; these are everyday issues of concern to all Canadians. When consumers buy food sold as “organic”, “gluten free” or “kosher” they should be entitled to rely on that representation and its ethical, dietary or religious implications. At the very least when you buy sausage labelled “100% beef”, it should not contain off-label ingredients.

“Food fraud”, although not a new concept, is now frequently reported in the news and has become part of the mainstream discourse on food health and safety. From Mucci Farms selling Mexican tomatoes as Canadian tomatoes, to Creation Foods forging Kosher certificates, the incentive exists for different players in the supply-chain to cut corners and deceive customers. When these and other frauds are exposed, or when consumers see or experience something suspect in their day-to-day interaction with food and beverage they expect government to intervene. This is food law.

On the other end of the spectrum, well intentioned and hardworking entrepreneurs are sometimes stymied by inspectors or bureaucrats and prevented from getting their products to market, their brewery licensed, or their organic farm recognized as such. In these situations they may look to lawyers to assist them getting the licensing or certification that they need. This is food law.

And somewhere in between the “obvious” categories of food & beverage law is the unusual and important legal work being performed in new and emerging industries like breast milk food banks. This is food law.

Later this year the Supreme Court of Canada is scheduled to hear the appeal of R. v. Comeau. Although the facts of the case are limited to Gerard Comeau’s ill-fated trip home to New Brunswick after he filled his trunk with cheap beer from Quebec, the court’s decision could have has much larger implications for the supply-side management of poultry and dairy. This too is food law.

Food & beverage law is not going to be for everyone, but in the future there will be a greater need for lawyers, politicians and policy makers to understand Canada’s food and beverage regulatory regimes, not less. The same can be said for a lot of other niches within the administrative law genus that do not get the attention or respect they deserve. So the next time you start to drift off when a colleague launches into a tirade about “jurisdiction” in your presence, keep in mind that there is more to admin law than meets the eye.