Companies in the food, beverage and health supplement industries are facing a host of new challenges in an era of heightened consumer awareness and increased demand for safety and accountability. Just as consumers are insisting on complete and accurate information about the foods they eat, legislators are imposing increasingly strict regulatory regimes and granting progressively broad powers to inspection agencies. Emerging trends south of the border suggest that food products are quickly becoming the next big target in product liability litigation. Consumers are challenging claims such as “all natural” and “organic” and demanding meaningful disclosure of ingredients and processes. Plaintiffs are also commencing claims in respect of ingredients that scientific studies have identified as posing potential health risks.
Osler’s Food Products team works with a wide variety of clients in the food, beverage, pharmaceutical and natural health product sectors to identify and mitigate potential risks and, when necessary, defend against claims. A multidisciplinary team – comprising members of Osler’s Class Action, Product Liability, Food and Drug Regulation, Corporate and Competition/Antitrust groups – develops procedures to reduce risk and exposure, engage with regulators and vigorously defend claims in an increasingly litigious consumer market.
The mere allegation of adverse health effects or misrepresentation about the content of a product can severely affect a company or brand reputation, even if the allegations are not ultimately proven. We work with many clients in the food, beverage and health supplement industries to design and implement proactive, business-oriented, risk-management programs with a view to preventing problems before they occur. We regularly counsel clients on the design of consumer instructions, warnings and labelling to limit future liability and improve brand perception.
We structure supplier contracts and other commercial agreements (including research, raw material procurement, private label manufacturing, licensing and distribution arrangements) to minimize exposure if issues arise. We advise on the development of best practices and protocols for testing, incident reporting and monitoring procedures, effective compliance training programs, physical and electronic document-retention policies and litigation readiness.
We learn about your products and systems so that we can give comprehensive but efficient advice on compliance with the latest regulatory restrictions and approvals, packaging and labelling standards, advertising and promotion, Hazard Analysis Critical Control Point (HACCP) implementation, and product recall procedure and implementation.
In addition to analyzing and advising on the impact of regulatory changes, we also develop protocols for responding to regulatory investigations and inspections. Our lawyers interface with regulators, including Health Canada, the Health Products and Food Branch and its directorates, the Health Products and Food Branch Inspectorate, as well as the Canadian Food Inspection Agency (CFIA) and the Department of Agriculture and Agri-food.
Crisis Management and Recalls
The possibility of becoming involved in a recall is a risk that affects all players in the food, beverage and health supplement industries. Our clients rely on our experience to prepare effective recall plans that enhance public safety, mitigate litigation risks and minimize reputational damage. We also advise on the risks and benefits of voluntary recalls, and we serve as “go to” advisors on best practices in implementing a recall plan.
Litigation and Class Action Defence
Osler is well known for its leading and innovative class action defence practice. Our Class Actions Practice Group has successfully defended clients in leading and complex product liability class action cases. We have an excellent track record in defeating class certification and winning early dismissals, and we regularly advise on the relative merits of preliminary motions and certification defences in view of each client’s overall business objectives and legal risks. Our rapid response approach quickly mobilizes the best team to assess a claim and its attendant risks, implement process and document management protocols, and oversee crisis communications.
Class proceedings can involve multiple jurisdictions within Canada and across borders. Our lawyers are highly experienced in acting as lead counsel and coordinating multiple suits across the country and internationally, including those filed under the civil law regime of Québec. Our team is backed by the expertise of our Research Department, which provides sophisticated research support, and our Discovery Management specialists, who deliver cost-effective discovery solutions in complex multijurisdictional class actions.