Food as a Dangerous Product: The Promise of Private Law for Public Health

Obesity and diet-related chronic diseases are a critical public health problem facing Canadians. Interventions aimed at improving diet and the overall food environment have had limited success, and as a consequence, many have suggested an increased use of legal tools, including litigation. This project examines the potential of the duty to warn, part of product liability law, as a strategy for addressing obesity and other diet-related chronic diseases. To this end, the project proceeds in two parts. Part one project examines the potential of tort law to be used to address public health problems. It begins by establishing the congruence between tort law and public health, and suggests that there are potential benefits of public health litigation for obesity prevention. This sets the foundation for part two, which argues that Canadian jurisprudence clearly establishes that food manufacturers have a duty to warn consumers about the risks associated with consuming food products. Part two examines key aspects of a tort claim based on a failure to warn, namely, the duty of care, standard of care, and factual causation. It sets out an approach to failure to warn cases that is consistent with general principles of negligence law, but that is sensitive to the particularities of a failure to warn case. This project establishes that food manufactures are required to provide warnings that are consistent with the standards of adequacy as set out by the Ontario Court of Appeal decision in Buchan v Ortho Pharmaceutical. Buchan, which has been affirmed by the Supreme Court of Canada, sets out explicit criteria for determining adequacy, including prohibitions against collateral efforts to negate or neutralize warnings. It is clear that food manufacturers are neither fulfilling their obligation to provide warnings nor adhering to the Buchan standard. This project concludes that food manufacturers should be held accountable for this failure.S.J.D