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Detailing genetic modification

With the pressure on to label bioengineered food, it’s unclear who will lead the charge
By Sandra Knowler and Becky Rock
September 02 2016 issue


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In the last few decades, the rate of global population growth has caused great concern about future access to reliable and sustainable food sources. Perhaps the most controversial response to these concerns is the increasingly common bioengineering of food to improve yield and resistance to disease, as well as reduce maturation time. These technological advances in genetically modified (GM) foods are undeniably impressive, but opponents nevertheless remain worried about the potential environmental and health effects.

The international response to GM foods has not been uniform — the European Union has consistently adopted a conservative approach, while North America was initially very accepting of GM foods but has begun to reflect the European attitude. This shift originates from the social movement toward increased health consciousness and support for the consumer’s “right to know,” a movement which has pressured industry and government alike to disclose more detailed information on product labels. Advocates for the equivalent treatment of GM foods and non-GM foods argue that there will be significant costs to businesses if such labelling requirements become mandatory and that such disclosure risks unduly stigmatizing GM products, but others have identified an opportunity for companies to become trailblazers in this growing market sector.

On July 1, the Vermont Genetically Engineered Food Labeling Act (Vermont Act) came into force, thereby imposing labelling requirements on all GM foods produced, licensed and distributed for sale in Vermont. Prior to the Vermont Act’s implementation, there was significant debate on the dangers of inconsistent labelling policies across the United States, so it is hardly surprising that a bipartisan agreement superseding the Vermont Act first proposed in late June 2016 was quickly passed and signed into law on July 29, (the U.S. law).

While the details of the U.S. law must still be ironed out by the Department of Agriculture, within two years, companies will be required to include a text statement, symbol, phone number, or scannable code on food labels which will provide consumers with bioengineering disclosure. This compromise has left many members of both camps unsatisfied, with some feeling that it may cause unnecessary fear of GM foods and others proclaiming the legislation falls far short of expectation, since it may not be possible to determine whether there are GM ingredients simply by looking at the package and certain products will not be captured.

Although the form and threshold of disclosure must be determined, it now appears inevitable that GM foods sold in the U.S. will be subject to labelling requirements. Since Canada’s labelling scheme is currently voluntary, it is unlikely that this change will go without response — the bilateral trading relationship enjoyed by these two countries is a vital part of the Canadian economy and if Canada does not keep pace, there will be de facto barriers to trade. As such, the question then becomes who will lead the Canadian labelling revolution.

A number of possible candidates exist, the first of which is industry itself. America’s superpower status and attractive marketplace give it the inherent ability to effectively force businesses in other jurisdictions to align their standards if they want access to American consumers. Since it would be expensive and administratively difficult for Canadian companies to comply with conflicting regulatory regimes, they may voluntarily adopt American labelling practices to retain their competitive status.

The second candidates are Health Canada and the Canadian Food Inspection Agency, which are responsible for Canadian food labelling policies under the federal Food and Drugs Act. These entities might take preventative action to ensure that Canada does not lose its market share across the border as a result of non-compliance.

Finally, there are the players in the “right to know” movement. These are the most likely pioneers as they were taking steps even before the U.S. law was passed — on June 14, NDP MP Pierre-Luc Dusseault introduced Bill C-291, an act that would amend the Food and Drugs Act to impose mandatory labelling of GM foods. Bill C-291 has yet to be debated in the House of Commons so it is too soon to say how it will be received, although when Dusseault asked whether the government would allow Canadians to make informed food choices, the minister of Agriculture and Agri-Food responded by saying that he had “asked the agriculture committee to explore what steps should be taken to best inform the public about new products involving genetically modified animals,” and emphasized that the government will continue to follow “a science-based strategy.”

While brief, these comments hint at the fact that a large-scale labelling reform would be a significant undertaking. Furthermore, if the discourse in the U.S. has taught us anything, it is that even if there is support for Bill C-291 in the House of Commons, the road to regulation is unlikely to be a smooth one.

Sandra Knowler ( is a partner and business law group co-ordinator and Becky Rock ( is an associate in McMillan LLP’s business law group. Temporary articling student Gavyn Backus helped with this article.

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