GM Food Law

GM FOOD LAW, INTEREST GROUPS, AND HEALTH AND CLIMATE RISKS
Alberto R. Salazar V.1
ABSTRACT
Interest groups may influence the making and enforcement of consumer protection law. Food laws are not an
exception. Interest groups may shape food consumer protection policies, which may have a negative impact on
consumers’ health, food choices, diet, and climate change. Food labelling laws can be an instance of such
problem. This work provides some evidence from Canada. It discusses the development of GM food labelling
legislation in Canada and the extent to which interest groups shape both the making of such legislation and the
social construction of GM food risk. While this problem is well recognized, it has not been examined nor
documented in the context of the law-making process. It is argued that some interest groups have played a
critical role in the defeat of mandatory GM food labelling legislation for over 20 years in Canada. The views
and interests of the biotechnology industry and political elites seem to have prevailed in the defeat of GM food
labelling legislation and the establishment of a voluntary GM food labelling regime and an increasingly
unreliable pre-marketing safety assessment system. It thus appears that low-risk bearing business and political
elites have dictated the risk that high-risk bearing citizen-consumers must bear and have shaped food choices
by positioning GM food in Canadians’ diet in the last 20 years while jeopardizing the environment. This is
termed ‘authoritarian paternalism’. This work provides some preliminary empirical evidence focusing on the
visible attempts to introduce GM food labelling legislation and the role of competing interest groups. The
potential for labelling to increase commercialization cost and reduce GM food consumption worries the
biotechnology industry of Canada, the world’s 4th largest producer of GMO crops. On the other hand, labelling
is demanded by citizen-consumers seeking to gain some knowledge and exercise their free choices as their
concerns over the risk of GM food to human health and the environment intensify. GM crops usually require
huge amounts of herbicides and are often tolerant to them. Glyphosate, the world’s most used herbicide, has
been found in foods available on Canadian markets. These concerns have been reinvigorated by the 2015
finding of the World Health Organization’s International Agency for Research on Cancer (IARC) that
glyphosate is probably a human carcinogen; Bayer’s approximately 11-billion settlement with more than
100,000 U.S. plaintiffs over claims that its glyphosate-based Roundup causes cancer; the European
Commission’s ongoing assessment of whether to ban glyphosate; and the United States’ 2018 release of the
final regulation of the 2016 National Bioengineered Food Disclosure Standard which came into effect in
January 2022, joining 64 countries that have adopted mandatory GM food labelling.
INTRODUCTION
1
Associate Professor, Department of Law, Carleton University (Ottawa, Canada). PhD (Osgoode Hall Law School,
York University, Toronto, Canada), MacArthur Fellow (University of Oxford, UK), CAPORDE fellow (University
of Cambridge, UK), email: Alberto.Salazar@carleton.ca. The views expressed here, along with any mistakes, are of
my own responsibility. Some ideas of this paper were inspired by my introductory discussion of this topic in an earlier
work. See Sasha Baglay and Alberto Salazar, “Law and Policy in Theory and Practice” in Laurence Olivo,
ed., Introduction to Law in Canada, 2nd ed (Captus Press, 2011), revised and being published as “Law and Policy-
Making in Context” in Laurence Olivo, ed., Introduction to Law in Canada, 3rd ed (Captus Press, 2021)
Electronic copy available at: https://ssrn.com/abstract=4139459

Interest groups may influence the making and enforcement of consumer protection law. Business
groups, consumer associations, civil society organizations, and political groups may seek to shape
consumer law and policies to have their interests represented or prevailed in the legal framework.2
Toward that end, they may launch public campaigns including the dissemination of opinions,
engage in court litigation, or lobby and capture legislatures and regulatory agencies.3 As interest
groups advocate their interests, they compete and conflict with other groups and may ultimately
shape consumer law and consumer choices. The outcome can be consumer policies that do not
necessarily serve consumers’ interests. In fact, in some cases, it can jeopardize consumers’ well-
2
See e.g. Coban, M.K. Diffuse interest groups and regulatory policy change: financial consumer protection in
Turkey, Int Groups Adv 9, 220–243 (2020) (examining the emergence of regulation on retail banking fees,
commissions, and charges in Turkey and the role of consumer groups’ presssures and the government, it argues that
“the regulatory policy change was a product of a policy regime change with the Ministry [of Customs and Trade]
emerging as a veto player … and imposed its preferences and its stricter policy approach. As such, the article
contributes to our understanding of the conditions of how diffuse interest groups can trigger regulatory policy change,
but more importantly policy regime change.”). See also more generally e.g. Binderkrantz, A.S., Pedersen, H.H. The
lobbying success of citizen and economic groups in Denmark and the UK. Acta Polit 54, 75–103 (2019) (noting that
“[e]conomic groups have been described as engaging more in “insider” politics affecting public policy decisions,
whereas citizen groups engage more in “outsider” politics affecting agenda setting. …The analyses show that citizen
and economic groups influence politics in different ways due to their choice of strategies and their different types of
resources. Thus, group type has a direct as well as an indirect effect on lobbying success. This relationship is present
in both pluralist UK and corporatist Denmark”); Maloney, W.A., G. Jordan, and A.M. McLaughlin. 1994. Interest
Groups and Public Policy: The Insider/outsider Model Revisited. Journal of Public Policy 14 (1): 17–38; Gary S.
Becker, A Theory of Competition Among Pressure Groups for Political Influence, The Quarterly Journal of
Economics, Volume 98, Issue 3, August 1983, Pages 371–400 (arguing that “governments correct market failures
with the view that they favor the politically powerful: both are produced by the competition for political favors”);
Schuck, P.H. 1977. Public Interest Groups and the Policy Process. Public Administration Review 37 (2): 132–140;
Stigler, G.J. 1971. The Theory of Economic Regulation. Bell Journal of Economics and Management Science 2 (1):
3–21
3
See e.g. Binderkrantz, A.S., P.M. Christiansen, and H.H. Pedersen. 2015. Interest Group Access to the Bureaucracy,
Parliament, and the Media. Governance 28 (1): 95–112; Gordon, S.C., and C. Hafer. 2014. Conditional Forbearance
as an Alternative to Capture. In Preventing Regulatory Capture: Special Interest Influence and How to Limit It, ed.
D. Carpenter and D.A. Moss, 208–238. Cambridge, MA: Cambridge University Press; Binderkrantz, A.S. 2005.
Interest Group Strategies: Navigating Between Privileged Access and Strategies of Pressure. Political Studies 53 (4):
694–715 (noting that “[a]n analysis of four distinct strategies – an administrative, a parliamentary, a media and a
mobilization strategy – finds interesting variations in the factors that affect the pursuance of the various strategies of
influence. Groups with a privileged position vis-à-vis decision makers have high levels of activities targeting these
decision makers, but the lack of a privileged position does not lead groups to pursue indirect strategies….”); Kollman,
K. 1998. Outside Lobbying: Public Opinion and Interest Group Strategies. Princeton, NJ: Princeton University Press;
Laffont, J., and J. Tirole. 1991. The Politics of Government Decision-Making: A Theory of Regulatory Capture. The
Quarterly Journal of Economics 106 (4): 1089–1127.

being and harm the public interest. This problem may occur in several consumer sectors and may
involve specific consumer protection laws.
Food laws are not an exception. Interest groups may shape food consumer protection policies,
which may result in both harming consumers’ health and the environment and molding food
choices and diet.4 Food labelling laws can be an instance of such problem.5 This work provides
some evidence from Canada. It discusses the development of GM food labelling legislation in that
country and the extent to which interest groups shape the making of such legislation.
4
See e.g. Shmuel I. Becher et. al., Hungry for Change: The Law and Policy of Food Health Labeling, 54 Wake Forest
L. Rev. 1305, 1352–53 (2019) (noting that “[t]he food industry in general--and firms that produce unhealthy foods in
particular--are well organized. They have years of experience collaborating, objecting to consumer protection
initiatives, and pressuring policymakers. Unsurprisingly, the food industry has powerful interest groups that have
been fighting for the industry's interests on various fronts. As a matter of fact, this pressure contributed to the decision
to reject the MTL system in Australia and New Zealand and to adopt the HSR system with its multiple flaws.”);
Lassen, Jesper. Listened to, but not heard! The failure to represent the public in genetically modified food policies,
Public Understanding of Science 27.8 (2018): 923-936 (Using parliamentary debates in Denmark in 2002 and 2015,
argues that “core public concerns raising fundamental questions about genetically modified foods, and in particular
their perceived unnaturalness, were not considered in the parliamentary debates. It is suggested that the failure of the
parliament to represent the public may undermine the legitimacy of politicians and lead to disillusionment with
parliamentary government”); Marion Nestle, Food Politics: How the Food Industry Influences Nutrition and
Health (2013); Karl Weber, Food Inc. (2009) (noting that large corporations influence the food supply chain). See
also Lawrence O. Gostin, “Big Food” Is Making America Sick, 94 Milbank Q. 480, 481, 483 (2016); Food Industry
Tactics Shape Public Food Policies, U. Auckland (Jan. 24, 2017), https://www.auckland.ac.nz/en/about/news-events-
and-notices/news/news-2017/01/food-industry-tactics-shape-public-food-policies.html; Steve Johnson, The Politics
of Meat, PBS, https://www.pbs.org/wgbh/pages/frontline/shows/meat/politics/; Anahad O'Connor, Got Almond Milk?
Dairy Farms Protest Milk Label on Nondairy Drinks, N.Y. Times (Feb. 13, 2017),
https://www.nytimes.com/2017/02/13/well/eat/got-almond-milk-dairy-farms-protest-milk-label-on-nondairy-
drinks.html; Diane Bartz, U.S. Food Lobby Fighting Hard to Defend Kid Ads, Reuters (Nov. 7, 2011),
https://www.reuters.com/article/us-advertising-children/u-s-food-lobby-fighting-hard-to-defend-kid-ads-
idUSTRE7A66OA20111107; Melissa Davey, Sugar Tax: Why Health Experts Want It but Politicians and Industry
Are Resisting, The Guardian (Jan. 9, 2018), https://www.theguardian.com/australia-news/2018/jan/10/sugar-tax-why-
health-experts-want-it-but-politicians-and-industry-are-resisting; Martin Hickman, Food Companies in Massive
Lobbying to Block Colour-Coded Warnings, Independent (June 15, 2010), https://www.independent.co.uk/life-
style/food-and-drink/news/food-companies-in-massive-lobby-to-block-colour-coded-warnings-2000523.html.
5
See e.g. Shmuel I. Becher et. al., Hungry for Change: The Law and Policy of Food Health Labeling, 54 Wake Forest
L. Rev. 1305, 1353 (2019) (noting that “the lobbying by the food industry influenced European Union food labeling
regulation and prevented the adoption of a mandatory front-of-package health labeling in the European Union”);
Monique Goyens, Using Behavioural Economics for Rather than Against Consumers - A Practitioner's Perspective,
53 Intereconomics 12, 14 (2018) (claiming that “compulsory display [of front-of-pack food health labeling] was
intensely (and successfully) opposed by food industry lobbyists during the adoption of the 2011 Food Information to
Consumers Regulation”).

The production and consumption of genetically modified food (GM food) have expanded
dramatically. Everything that we find in supermarkets and stores, from bread to tomatoes, corn
and soya oil are produced from genetically modified organisms. The controversy over the risk of
GM food to public health and the environment has also escalated while science continues to make
progress on the knowledge of GM food. To respond to those concerns, governments have
established pre-marketing assessments of the safety of GM food and/or labelling, among the most
important interventions. However, these regulatory frameworks are not completely effective in
protecting consumers’ safety as regulatory agencies are not necessarily competent, GM food
science is still limited, and the pressures of business, political and consumer groups have an impact
on the regulatory process. Thus, concerns over the risk that GM food poses remain on the agendas
of citizen-consumers, regulators, environmental groups, and the food industry.
An important regulatory intervention to address those concerns has been mandatory GM food
labelling. The latter may indicate whether any food product is genetically modified and as such
will enable consumers to freely choose GM foods and bear the risk as they wish. However, the
biotechnology industry often questions the necessity of GM food labelling as it imposes a
significant cost on GM food production and marketing and creates an unnecessary disincentive for
GM food consumption, thereby hindering the competitiveness of the agro-sector. Similarly, some
governments prefer to rely on a strict pre-marketing assessment of GM food safety as a way to
balance consumers’ interest in safety, on the one hand, and food companies’ concern over the
competitiveness of the food industry, on the other. Yet, citizen-consumers and environmental
groups are skeptical about such pre-marketing systems and even question the effectiveness of GM
food labelling. These interest groups’ conflicting views on GM food labelling regulation are real

and have persisted over time.6 This can be observed in Canada where competing interest groups
and views seek to maintain or change its current voluntary GM food labelling regime.
This work discusses the development of GM food labelling legislation in Canada and the influence
of interest groups. It specifically examines the extent to which interest groups shape both the
making of such legislation and the social construction of GM food risk. While this problem is
fairly known, it has not been examined nor documented in the context of the Canadian legal
process. It is argued that some interest groups have played a critical role in the defeat of mandatory
GM food labelling legislation for over 20 years in Canada. The views and interests of the
biotechnology industry and political elites seem to have prevailed in the defeat of GM food
labelling legislation and the establishment of a voluntary GM food labelling regime and a
questionable pre-marketing safety assessment system. Consequently, low-risk bearing business
and political elites appear to have determined the risk that high-risk bearing citizen-consumers
must bear for more than 20 years in Canada. This has to a significant extent molded food choices
and diet and may have added further risk to human health and the environment. This can be termed
‘authoritarian paternalism’, meaning that business and political leaders have consistently opposed
6
See e.g. Angela Foster, Genetically Modified Food-Truth or Fiction?, N.J. Law., August 2017, at 28, 30 (noting that
“[i]n 2000, plaintiffs consisting of public interest groups, a religious congregation and numerous individuals, brought
suit against the federal government challenging the FDA's regulatory policies concerning GE foods. The group alleged
the FDA's determination that a GE food component was safe was arbitrary and capricious and required a
special food label. The district court granted the government's motion for summary judgment and dismissed the case.
Deferring to the FDA's interpretation, the court reasoned that special labeling for GE foods is not required under
Section 201(n) of the Federal Food, Drug & Cosmetic Act if the sole justification for such a requirement
is consumer demand. Through the years, consumers have continued to challenge food chains for misleading and/or
mislabeling their products as ‘all natural’ or ‘GMO-free,’ alleging the terms are false”); Frederick H. Degnan, The
Food Label and the Right-to-Know, 52 Food & Drug L.J. 49, 55 (1997) (discussing the FDA’s approach to GM food
labelling, noted that “[c]onsumer and public interest groups disagreed with the agency's approach, and argued that
labeling should be required to distinguish genetically engineered foods, food ingredients, and additives from other
products.”).

GM food labelling and favored GM food consumption on the belief that they know what is best
for consumes and the economy even though consumers and other groups may disagree. This work
provides some preliminary empirical evidence to substantiate those claims focusing on visible
attempts to introduce GM food labelling legislation in Canada.
The argument is developed as follows. The first section provides a quick review of the current
legal regime for GM food labelling in Canada. The second section is central and presents some
preliminary empirical evidence of the role of interest groups in the defeat of proposed mandatory
GM food labelling legislation in Canada. This part briefly reviews the several attempts to introduce
such legislation and analyzes interest groups’ relevant public statements and opinions as found in
legal and social science databases and the media. The next section highlights the impact of the
current GM food regime on human health and the environment. The last section briefly reflects on
some theoretical implications of the findings of this work and calls for a rethinking of the theory
and practice of consumer law and policy.
GMO FOOD LABELLING LAW IN CANADA 7
Canada currently has a voluntary GM food labelling regime. The Government of Canada officially
adopted voluntary labelling for GM food in 2004. Companies may voluntarily label GM food, but
they are not legally required to indicate that the food is a product of genetic engineering. In order
to regulate this regime, a Canadian standard for voluntary labelling of genetically engineered (GE)
foods, entitled Voluntary Labelling and Advertising of Foods That Are and Are Not Products of
7
This section is based on a small portion of a chapter that I have co-authored. See Sasha Baglay and Alberto Salazar,
“Law and Policy-Making in Context” in Laurence Olivo, ed., Introduction to Law in Canada, 3rd ed (Captus Press,
2021)

Genetic Engineering, was published as a National Standard of Canada in April 2004 and
reaffirmed in 2016.8 This Standard is not intended to address health and safety concerns. Rather,
this voluntary labelling standard provides guidance to manufacturers on making clear and truthful
claims about the use or non-use of genetic engineering in their products.9
It is important to note that GM food labelling is concerned with information about the genetic
modification of a food product and must be distinguished from the current mandatory labelling
that is required for any food that poses a risk due to general health and safety concerns other than
genetic modification.10 For example, if the nutritional value or composition of the food has been
changed, or if there is an allergen present in the food, genetically modified or not, the food must
be labelled as such.11 While there are several regulatory solutions, labelling may mitigate such a
risk by informing or alerting consumers about the risk. This required labelling applies to all foods,
including GM foods.12
THE DEFEAT OF MANDATORY GMO FOOD LABELLING LEGISLATION,
INTEREST GROUPS, AND THE SOCIAL CONSTRUCTION OF RISK IN CANADA
8
Health Canada, “Labelling genetically modified (GM) foods”, <https://www.canada.ca/en/health-
canada/services/food-nutrition/genetically-modified-foods-other-novel-foods/labelling.html>
9
10
11
12

The pressures of interest groups and the influence of business and political elites on determining
GM food risk and its regulation have been evident in the past attempts to introduce a mandatory
GM food labelling legislation in Canada. A free vote in Parliament on October 17, 2001 defeated
a Liberal MP Charles Caccia’s GM food labelling Bill by vote of 126-91,13 four years after the
first genetically modified organisms were introduced in Canada in 1996.14 His private member’s
bill, C-287 would have required mandatory labelling of genetically altered foods. Interestingly, a
year later, in August 2002, the Canadian Biotechnology Advisory Committee, often criticized for
its close ties to the biotechnology companies, issued a report recommending the adoption of
voluntary labelling of GM food, which in fact was officially adopted in 2004:
We note that the mandatory labelling of GM foods is already required for health and safety
reasons. CBAC recommends that the federal government adopt a voluntary system for
labelling GM foods for matters other than health and safety. The majority of CBAC
members believe that Canada should begin with a voluntary labelling system for GM
foods to allow time for testing the system’s adequacy and efficiency and to develop an
accepted international standard; to provide consumers who wish to purchase GM-free
products with the ability to identify them; to limit costs; and to avoid trade action where
a mandatory labelling scheme would contravene trade agreements. ...
We recommend:…
7.3 That the voluntary system be widely promulgated and promoted.15
In April 2004, CropLife Canada, representing biotechnology companies including Bayer and
Monsanto, openly supported a voluntary GM food labelling in Canada. It stated that “CropLife
13
Canadian Biotechnology Action Network, “Labelling”, https://cban.ca/gmos/issues/labelling/ (noting that in “2001,
a bill for mandatory labelling was defeated (126 to 91) in the House of Commons after an intense grassroots
campaign”)
14
“GMOs are in our food, but we aren’t being told about them” CBC Docs,
https://www.cbc.ca/cbcdocspov/features/gmos-are-in-our-food-but-we-arent-being-told-about-them (noting that
GMOs were introduced in 1996 in Canada)
15
The Canadian Biotechnology Advisory Committee, Improving the Regulation of Genetically Modified Foods
and Other Novel Foods in Canada (Report to the Government of Canada, Biotechnology Ministerial Coordinating
Committee, Ottawa, August 2002), xi and xviii, online: Government of Canada Publications website, <http://www.
publications.gc.ca/collections/Collection/C2-589-2001-1E.pdf>.

Canada joins fellow committee members in applauding consensus reached on the voluntary
labelling of foods obtained, or not obtained, through genetic engineering”.16 Previously, in
January, 2004, CropLife Canada expressed skepticism about Quebec’s intention to introduce
mandatory GM food labelling.17 Later in 2008, Bill C-517 introduced by Gilles-A. Perron of Bloc
Québécois that sought to label genetically engineered foods was defeated in the House of
Commons.18
One of the most serious attempts to introduce a mandatory GM food labelling legislation in Canada
took place in 2016 and 2017. A Private Member’s Bill C-291, An Act to Amend the Food and
Drugs Act (genetically modified food), was sponsored by NDP MP Pierre-Luc Dusseault on June
14, 2016, the date of the Bill’s introduction and First Reading in the House of Commons. 19 Bill C-
291 would require the mandatory labelling of genetically modified food in Canada. The Bill
proposed to amend the Food and Drugs Act as follows:
1 The Food and Drugs Act is amended by adding the following after section 5:
Genetically modified food
5.1 No person shall sell any food that is genetically modified unless its label contains the
information prescribed under paragraph 30 (1) (b.2).
2 Subsection 30(1) of the Act is amended by adding the following after paragraph (b):
(b.1) defining the expression “genetically modified”;
16
CropLife, “CropLife Canada Supports Voluntary Labelling of Foods”, April 15, 2004,
https://croplife.ca/news_releases/croplife-canada-supports-voluntary-labelling-of-foods/
17
CropLife Canada, “New Challenges, Issues -- What's at Stake in the area of Food Safety in Quebec? CropLife
Canada’s Response to the consultations by the Commission on Agriculture, Food and Fisheries, Quebec National
Assembly”, January, 2004, at 20, https://croplife.ca/wp-content/uploads/2004_Labelling_QuebecFoodSecurity.pdf
(recommending that “before there is any further move to introduce mandatory labelling or a comprehensive
traceability system, the Committee and the Government of Quebec initiate a thorough study examining the impacts of
mandatory labelling…”)
18
Canadian Biotechnology Action Network, “Labelling”, https://cban.ca/gmos/issues/labelling/ (accessed June 13,
2022). See also Mr. Pierre-Luc Dusseault (Sherbrooke, NDP) Sponsor’s Speech at Second Reading, Bill C-291, March
10, 2017, https://www.ourcommons.ca/DocumentViewer/en/42-1/house/sitting-152/hansard#9426191 (stating that
his Bill is “a very simple bill, which has already been debated in the House a few times in the past. Almost 10 years
have passed since this issue was raised in the House, but I believe it is the right time to do so.”)
19
Parliament of Canada, https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=8348744&View=0

(b.2) respecting the labelling of genetically modified food, to prevent the purchaser or
the consumer of the food from being deceived or misled in respect of its composition;20
Interestingly, while Bill C-291 was being discussed in the Canadian Parliament in 2016, the US
President Barack Obama was signing into law the National Bioengineered Food Disclosure
Standard (NBFDS) on July 29, 2016, which requires the mandatory labelling of GM food and
whose final regulation was released in December 2018.21 Meanwhile, the Government of Canada
reaffirmed the 2004 Voluntary Labelling and Advertising of Foods That Are and Are Not Products
of Genetic Engineering standard in 2016.22 In early 2016, Health Canada also hired a Toronto-
based consulting firm, The Strategic Counsel, to assess Canadians’ views on genetically modified
(GM) foods and make recommendations for improving the public perception of GM foods.23 Such
assessment was conducted a year after the World Health Organization’s International Agency for
Research on Cancer (IARC) identified glyphosate, the world’s most commonly used herbicide, as
a probable human carcinogen in 2015.24 Several Canadian groups brought such concerns over
glyphosate to the attention of the government in 2015,25 which apparently did not change the
government’s policy to support GM food consumption.
20
Bill C-291, House of Commons of Canada, First Reading, June 14, 2016, https://parl.ca/DocumentViewer/en/42-
1/bill/C-291/first-reading.
21
Pub. L. No. 114-216, 130 Stat. 834; National Bioengineered Food Disclosure Standard, 7 U.S.C. §1639b (2016);
Bioengineered Disclosure, UDSA, https://www.ams.usda.gov/rules-regulations/be
22
23
The Strategic Counsel, “Report on Consumer Views of Genetically Modified Foods.” FINAL Report (June 24,
2016), at 3, https://epe.lac-bac.gc.ca/100/200/301/pwgsc-tpsgc/por-ef/health/2016/042-15-e/report.pdf (stating that
this “report presents the findings from a comprehensive research program which was undertaken on behalf of Health
Canada in March 2016 to gauge Canadians’ views on genetically modified (GM) foods and issues related to the
application of science and technology in food production and manufacturing”)
24
World Health Organization, International Agency for Research on Cancer, “IARC Monographs Volume 112:
evaluation of five organophosphate insecticides and herbicides” 20 March 2015, https://www.iarc.fr/wp-
content/uploads/2018/07/MonographVolume112-1.pdf
25
See e.g. “Label genetically modified foods, Yukon farmer urges Trudeau”, CBC News, Dec 15, 2015
https://www.cbc.ca/news/canada/north/yukon-farmer-petitions-for-gmo-food-labelling-1.3362851
10

The Bill was defeated on May 17, 2017 at second reading in the House of Commons by a vote of
216-67.26 Interestingly, approximately two months prior on March 28, 2017, the California
Environmental Protection Agency decided to add glyphosate to Proposition 65 list of chemicals
known to cause cancer.27 Prior to the defeat, in April 2017, the Canadian Food Inspection Agency
(CFIA) published the results of its testing of foods for glyphosate residues during the 2015-2016
period finding glyphosate in foods, but concluded that it did not pose risk to human health.28 This
defeat under the Liberal government of Prime Minister Justin Trudeau once again occurred in the
midst of pressures from the biotechnology industry and consumer and environmental groups. For
instance, the managing director of science and regulatory affairs of CropLife Canada, the
association of plant biotechnology and crop protection companies, opposed the mandatory GMO
labelling Bill.29 CropLife noted that GMO foods are safe and well approved by Health Canada and
the Canadian Food Inspection Agency and claimed that a mandatory labelling may create
(reporting on a Yukon farmer’s call for GM food labelling. The farmer, Barbara Drury, stated that “[g]enetic
modification usually requires a tremendous amount of herbicide called Roundup. And the active ingredient in
Roundup is glyphosate and glyphosate is an extremely harmful chemical that is uptaken in our bodies, mimicking an
amino acid”)
26
Parliament of Canada, https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=8348744&View=0
27
California Office of Environmental Health Hazard Assessment, “Glyphosate to be added to Proposition 65 list of
chemicals”, Mar 28, 2017, https://oehha.ca.gov/public-information/press-release/press-release-proposition-
65/glyphosate-be-added-proposition-6. As explained later, this decision was challenged by Monsanto in court and
ultimately the court decided in favour of the company in 2018 after concluding that there was not conclusive scientific
evidence to support California’s decision. However, the U.S. Department of Health and Human Services is now
suggesting that glyphosate may have a negative impact on human health. See U.S. Department of Health and Human
Services, Agency for Toxic Substances and Disease Registry, “Toxicological Profile for Glyphosate”, August 2020,
at 3, https://www.atsdr.cdc.gov/toxprofiles/tp214.pdf.
28
Canada Food Inspection Agency, “Safeguarding with Science: Glyphosate Testing in 2015-2016”, CFIA- Science
Branch Survey Report, Food Safety Science Directorate, http://static.producer.com/wp-
content/uploads/2017/04/CFIA_ACIA-9123346-v1-FSSD-FSSS-Glyphosate-Final-Report-15-
16_0184101.pdf#_ga=1.196489061.892407858.1492107204
29
Susan Mann, “Canadian plant biotech industry weighs in on GMO labelling bill” June 25, 2016,
https://www.betterfarming.com/online-news/canadian-plant-biotech-industry-weighs-gmo-labeling-bill-61480
11

confusion among consumers.30 In May 2016, CropLife Canada, representing the biggest
biotechnology companies in the country including Bayer and Corteva, defended Canada’s GM
food regime including its pre-marketing safety assessment of GM food and called for moving
beyond the GM food labelling debate:
... Canada’s world-class regulatory system ensures all new biotech crops are just as safe as
the non-GM varieties. And there are probably few other foods in the history of humankind
that have a track record of safety as good GMOs. There have been trillions of meals
consumed containing GM ingredients over the last two decades without a single credible
case of harm. ...So, while it might be a surprise to some, GMOs actually have a good green
story to tell. They are part of a sustainable agricultural system that is well positioned to
feed the world while safeguarding the environment for future generations. While we all
debate whether GMOs should be labeled, we shouldn’t lose sight of the incredible
sustainability story behind them.31
30
Susan Mann, “Canadian plant biotech industry weighs in on GMO labelling bill” June 25, 2016,
https://www.betterfarming.com/online-news/canadian-plant-biotech-industry-weighs-gmo-labeling-bill-61480
31
CropLife, “Beyond the labeling debate: biotech crops contribute to sustainable agriculture”, May 9, 2016,
https://croplife.ca/beyond-the-labelling-debate-biotech-crops-contribute-to-sustainable-agriculture/. CropLife
Canada has a history of opposing mandatory GM food labelling in Canada. See CropLife Canada, “CropLife Canada
letter re Codex Committee on Food Labelling_2011”, posted on February 27, 2012, https://croplife.ca/wp-
content/uploads/CropLife-Canada-letter-re-Codex-Committee-on-Food-Labelling_2011.pdf
(stating “[l]abelling these products would not provide information to consumers on health or nutrition, and may even
be viewed as a warning. For these reasons, we do not support mandatory labelling of GM products. … The discussions
have gone on long enough and CropLife Canada recommends the discontinuation of discussions on this issue.”);
CropLife Canada, “Letter to CCFL re 38th Session Codex Committee on Food Labelling 2010”, April 9, 2010, posted
on February 27, 2012,
https://croplife.ca/wp-content/uploads/Letter-to-CCFL-re-38th-Session-Codex-Committee-on-Food-
Labelling_2010.pdf. This letter stated that:
CropLife Canada observes that the nearly two decades of discussion through the Codex Committee on Food
Labelling has not delivered any form of consensus on the future direction of a Codex standard for labelling
of foods derived through biotechnology. As such, CropLife Canada continues to support the
discontinuation of discussions on this matter.
We believe that the lack of consensus as well as the many different approaches to labelling are symptomatic
of the very politicized nature of the discussion on labelling and the inherent difficulties of implementation of
a labelling scheme that is truthful, verifiable, consistent and cost effective. The discussions at CCFL have
acknowledged that any standard for labelling of foods derived through biotechnology does not serve to add
protection to consumers. Food safety is ensured through the appropriate safety assessment and regulatory
oversight conducted prior to any consideration of labelling and product commercialization.
CropLife Canada continues to support the Government of Canada’s voluntary approach to the labelling of
foods with genetically modified ingredients. This approach for Canada allows for truthful, verifiable and not
misleading labelling statements, and encourages consumer choice without imposing significant costs on the
agri-food value chain. In addition, CropLife Canada supports the science- based regulatory system used by
Canadian regulators that considers health, safety and environment prior to the commercialization of new GM
events. We believe that establishing a labelling standard for foods derived from modern biotechnology within
the CODEX process will lead to creating a benchmark that CODEX member countries will be bound to
follow and would undermine Canada’s long-standing policy of voluntary labelling. (emphasis in original)
12

It is important to note that CropLife Canada’s members own most of GM crops in Canada. There
are reportedly 33 GM herbicide-tolerant crops approved for growing in Canada that could be on
the market. 22 GM crops are owned by Bayer (and Monsanto), 6 GM crops by Corteva
(DowDupont), and 3 GM crops by Syngenta (ChemChina).32 A proposed mandatory GMO food
labelling and its potential for reducing GM food consumption were probably seen as obstacles to
the growth of the biotechnology industry in Canada.
Parliamentary debates on the 2016-2017 Bill raised concerns that resembled biotechnology
companies’ view. Some members argued that GM food labelling will create an alarmist consumer
response against GM foods, which can then be deemed as unsafe for consumption despite Health
Canada’s safety assessment. 33

GM food labelling was feared to discourage consumption and
Canadian consumers’ increasing concerns over GM food probably fueled that fear. They also
claimed that GM food labelling may be unenforceable as determining what qualifies as GM foods
is extremely complicated.34 This latter problem appears to relate to the fact that around 75% of
processed foods on supermarket shelves contain genetically engineered ingredients from soda to
32
Canadian Biotechnology Action Network, “In-Depth Update: Glyphosate and Other Pesticides, and Genetically
Engineered Crops”, CBAN, E-News, May 23, 2019, https://cban.ca/?na=v&nk=4-2d22868b3a&id=124
33
Rebecca Rock and Rosie Schlagintweit, “Canada’s House of Commons rejects Mandatory Labeling of Genetically
Modified Foods”, McMillan LLP Business Law Bulletin, May 2017, https://www.mcmillan.ca/Canadas-House-of-
Commons-Rejects-Mandatory-Labeling-of-Genetically-Modified-Foods. Similar concerns about the potential
misleading effects of GM food labelling on consumers have been raised in other contexts. See e.g. Sarah Berger, GMO
Labeling, INT’L BUS. TIMES (Feb. 26, 2016), https://www.ibtimes.com/gmo-labeling-should-food-packaging-
identify-genetically-modified- organisms-2323657.
34
Rebecca Rock and Rosie Schlagintweit, “Canada’s House of Commons rejects Mandatory Labeling of Genetically
Modified Foods”, McMillan LLP Business Law Bulletin, May 2017, https://www.mcmillan.ca/Canadas-House-of-
Commons-Rejects-Mandatory-Labeling-of-Genetically-Modified-Foods. Similar concerns about the potential
misleading effects of GM food labelling on consumers have been raised in other contexts. See e.g. Sarah Berger, GMO
Labeling, INT’L BUS. TIMES (Feb. 26, 2016), https://www.ibtimes.com/gmo-labeling-should-food-packaging-
identify-genetically-modified- organisms-2323657.
13

soup, crackers to condiments.35 Also, genetically modified crops are used for animal feed, which
enter the food system through meat, dairy, and egg products.36
As in previous years, consumers massively expressed concerns about the impact of GM food on
human health and the environment around the time of the 2016 introduction and the 2017 defeat
of Bill C-291. The Bill reflected Canadians’ sentiment about the need for GM food labelling at
that time. As mentioned above, in 2016, Health Canada hired a Toronto-based consulting firm,
The Strategic Counsel, to gauge Canadians’ views on genetically modified (GM) foods.37 This
study was conducted in March 2016 and the final report was issued on June 24, 2016. 38 This
Canada-wide qualitative and quantitative study found that there was a strong consensus among
Canadians from all regions and demographic groups about their skepticism on GMOs.39 Only
“26% of respondents indicated they would be comfortable eating foods that have been genetically
modified, and just 22% support the development and sale of GM foods in Canada”. 40 This finding
confirmed that the growing movement against GM food. In November 2015, a public petition was
initiated to call on the Canadian government to require the labelling of GM food. The petition
35
Center for Food Safety, “About Genetically Engineered Food”, https://www.centerforfoodsafety.org/issues/311/ge-
foods/about-ge-foods; “GMOs are in our food, but we aren’t being told about them” CBC Docs,
“GMOs are also found in almost 75 percent of our processed foods, in everything from chips to soda”)
36
https://www.cbc.ca/cbcdocspov/features/gmos-are-in-our-food-but-we-arent-being-told-about-them
37
2016), at 3, https://epe.lac-bac.gc.ca/100/200/301/pwgsc-tpsgc/por-ef/health/2016/042-15-e/report.pdf (stating that
this “report presents the findings from a comprehensive research program which was undertaken on behalf of Health
Canada in March 2016 to gauge Canadians’ views on genetically modified (GM) foods and issues related to the
application of science and technology in food production and manufacturing”)
38
2016), at 3, https://epe.lac-bac.gc.ca/100/200/301/pwgsc-tpsgc/por-ef/health/2016/042-15-e/report.pdf
39
40
14

attracted the support of 33,540 citizens as noted at the time of closure.41 Despite Canadians’ widely
known concerns about GM food and strong support for mandatory GM food labelling,42 the
biotechnology industry opposed, and most political leaders voted against, Bill C-291.
Public interest groups such as the Canadian Biotechnology Action Network (CBAN) and
Vigilance OGM supported Bill C-291 and expressed disappointment at the defeat.43 CBAN is a
coalition of 16 groups of farmer associations, environmental and social justice organizations, and
regional coalitions of grassroots groups, including Greenpeace Canada, dedicated to research and
raise awareness about the impact of genetic engineering on food and farming.44 These groups
advocated for a mandatory labelling of GM food believing that it will help Canadians make
informed consumer choices and protect the safety of food and the sustainability of the
environment.
The most recent effort to establish mandatory GM food labelling occurred in March 2020 through
an official electronic Petition e-2416 (Health). It was initiated by Veronique Audette from
Hamilton, Ontario in the House of Commons and was opened for signatures on March 6, 2020 and
41
“Label GMO's (genetically modified organisms) in food in Canada”, https://www.change.org/p/justin-trudeau-
label-gmo-s-genetically-modified-organisms-in-food-in-canada (noting that Barbara Drury started this petition to
Justin Trudeau, Primer Minister of Canada); “Label genetically modified foods, Yukon farmer urges Trudeau”, CBC
News, Dec 15, 2015
https://www.cbc.ca/news/canada/north/yukon-farmer-petitions-for-gmo-food-labelling-1.3362851(reporting on the
same petition)
42
Other studies have noticed the same correlation between GM food skepticism and mandatory GM food labelling.
See e.g. Evans, Halie M. "A New Age of Evolution: Protecting the Consumer's Moral and Legal Right to Know
through the Clear and Transparent Labeling of All Genetically Modified Foods" (2019) 33:1 JL & Health 17, 4
(claiming that “[t]he close relationship between genetically modified crops, high toxicity levels, and human and
environmental health may be one reason why many citizens favor the labeling of GMOs”).
43
Canadian Biotechnology Action Network, “Groups Call on Grocery Stores to Reject GM Fish and Produce as
Parliament Votes Down Mandatory Labelling for GM Foods”, Ottawa, May 17, 2017, https://cban.ca/groups-call-on-
grocery-stores-to-reject-gm-fish-and-produce-as-parliament-votes-down-mandatory-labelling-for-gm-foods/
44
Canadian Biotechnology Action Network, https://cban.ca/about-us/
15

closed for signatures on July 4, 2020 with 919 signatures from across Canada. 45 This petition
apparently went unnoticed and did not attract significant attention from the biotechnology industry
and government amid the COVID-19 pandemic. Interestingly, while the Petition was unfolding in
Canada, Bayer struck a 11-billion settlement with approximately 125,000 U.S. plaintiffs in June
2020 over claims that its glyphosate-based Roundup, a widely used GM crop herbicide, causes
cancer.46 The Petition e-2416 read as follows:
Petition to the Government of Canada

Whereas:
● Genetically modified (GMO, GM or genetically engineered) foods are not labeled
in Canada;
● Polls consistently show that over 80% of Canadians want mandatory labelling of
GM foods; and
● The World Health Organization’s International Agency for Research on Cancer has
declared GM Crop herbicides – glyphosate – a “probable human carcinogen”. Its
use has increased sharply with the development of genetically modified glyphosate-
resistant crop varieties.
We, the undersigned, residents of Canada, call upon the Government of Canada to
establish mandatory labelling of all genetically modified foods.47
This 2020 petition has been the latest initiative in a long history of Canadians’ demands for
mandatory GM food labelling for over 20 years. Canadian consumers have consistently been
concerned about GM foods and their impact on human health and the environment. Approximately
80% of Canadians have favoured the mandatory labelling of GM foods for the past 20 years.48 For
45
Parliament of Canada, House of Commons, Petition e-2416 (Health),
https://petitions.ourcommons.ca/en/Petition/Details?Petition=e-2416
46
“Bayer Takes €9.25 Billion ($10.8 Billion) Writedown in Q3 on Impairments in Agriculture Business”, 2020
WLNR 31341285, Equities.com, Reuters, November 4, 2020; “Bayer takes over-$10 bln writedown”, Reuters US
Business News, November 3, 2020.
47
Parliament of Canada, House of Commons, Petition e-2416 (Health),
https://petitions.ourcommons.ca/en/Petition/Details?Petition=e-2416
48
See e.g. Borges Bárbara Juliana Pinheiro, Arantes Olivia Márcia Nagy, Fernandes Antonio Alberto Ribeiro, Broach
James R. Fernandes and Patricia Machado Bueno, “Genetically Modified Labeling Policies: Moving Forward or
Backward?” (2018) 6 Frontiers in Bioengineering and Biotechnology,
https://www.frontiersin.org/articles/10.3389/fbioe.2018.00181/full (noting that in “Canada, public opinion has been
16

example, a 2018 survey found that 88.6% of Canadians say all genetically modified
foods/ingredients should be clearly labelled as such on food packages. 49
The long-standing competing views of GM food risk and the influence of interest groups, including
the biotechnology industry and consumer groups, can also be observed in Health Canada’s pre-
market assessment of GM foods.50 Health Canada has been perceived as being more responsive to
the needs of the biotechnology industry when assessing the safety of GM food.51 It should not be
surprising that consumer groups have questioned the independence of regulators and continue to
dispute the accuracy of the safety assessment of Health Canada. For instance, the National Farmers
Union has called on the Canadian public to sign a petition asking Health Canada to disallow
glyphosate use for “harvest management benefit” or desiccation. The petition has been signed by
analyzed through surveys conducted in the last years by diverse organizations and the results confirmed that citizens
support mandatory labeling of GMF. The most recent studies found that, in 2012, 91% of Canadians wanted mandatory
labeling (Leger Marketing, 2012). In 2015, the number was 88% of Canadians (Ipsos Reid, 2015) and reached 78%
of Canadians pro mandatory labeling in 2016 (The Strategic Counsel, 2016)”); Canadian Biotechnology Action
Network, “Labelling”, https://cban.ca/gmos/issues/labelling/; “GMOs are in our food, but we aren’t being told about
them” CBC Docs, https://www.cbc.ca/cbcdocspov/features/gmos-are-in-our-food-but-we-arent-being-told-about-
them (claiming that “Canada is the 4th largest producer of GMO crops, and 88% of us want our foods labelled”);
Sarah Staples, “Public Wants GM Food Labelled: Poll Finds Majority Willing to Pay More to Clearly Identify
Modified Products”, Ottawa Citizen (June 12, 2002) A1; The Canadian Biotechnology Advisory Committee,
Improving the Regulation of Genetically Modified Foods and Other Novel Foods in Canada (Report to the
Government of Canada, Biotechnology Ministerial Coordinating Committee, Ottawa, August 2002), xi, online:
Government of Canada Publications website, (http://www. publications.gc.ca/collections/Collection/C2-589-2001-
1E.pdf (noting that “[t]he dissenting member, Anne Mitchell, is strongly in favour of proceeding directly to mandatory
labelling, and notes that a majority of respondents to our Interim Report urged a mandatory system.”)
49
Sylvain Charlebois, Caitlin Cunningham, Janet Music and Simon Somogyi, “Biotechnology in Food: Canadian
Attitudes towards Genetic Engineering in both Plant- and Animal-based Foods”, Dalhousie University, May 24,
2018
50
Health Canada,“The safety of genetically modified (GM) foods”, September 30, 2020,
https://www.canada.ca/en/health-canada/services/food-nutrition/genetically-modified-foods-other-novel-
foods/safety.html
51
See e.g. Anna Poliszot, “Food for Thought: Improving the Canadian Genetically Modified Food Safety Assessment
Process by Integrating the Precautionary Principle as A Guiding Framework, 7 Wm. & Mary Pol'y Rev. 1 (2016)
(claiming that “Health Canada appears to interpret the precautionary principle to respond to the needs of the
biotechnology industry”).
17

5,213 supporters at the time of writing this work.52 In February 2019, Safe Food Matters Inc., a
Toronto-based group, filed an application in federal court to challenge the re-registration of
glyphosate, the active ingredient in Roundup herbicide.53
The above review shows that proposed mandatory GM food labelling legislation has consistently
been defeated in Canada for the past 20 years. Interest groups, especially the biotechnology
industry and political elites, have been influential in the defeat of proposed GM food labelling
legislation. GM food policies, particularly labelling, have clearly developed in the midst of
competing interest groups seeking to advance their discourses about risk and its regulation within
the legal and political systems.54 On the one hand, the government, the biotechnology industry and
political elites have emphasized the value of science-based food safety and the contribution of GM
food and crops to improving the competitiveness and profitability of the Canadian agro-export
sector.55 In that context, mandatory GM food labelling is perceived as both increasing the cost of
the commercialization of genetically modified food and reducing its consumption as consumers
may deem the labelling as dissuasive warnings. Thus, the government and the food industry have
52
“Ask Health Canada to disallow glyphosate use for "harvest management benefit".”,
https://www.change.org/p/hon-ginette-petitpas-taylor-minister-of-health-ask-health-canada-to-disallow-glyphosate-
use-for-harvest-management-benefit-ca90d297-e13a-470a-b725-
583cbba21607?recruiter=960474680&utm_source=share_petition&utm_medium=facebook&utm_campaign=share_
petition&utm_term=share_petition&recruited_by_id=e2113b80-7667-11e9-805c-3926a6381355&utm_content=fht-
15507060-en-ca%3Av2%20
53
“SAFE FOOD MATTERS Going to Court Over Roundup/Glyphosate”, Safe Food Matters, Toronto, February
12, 2019, https://safefoodmatters.org/2019/02/13/going-to-court/
54
Similar conclusions have been reached by other studies. See e.g. David Zilberman, Scott Kaplan and Ben Gordon,
“The Political Economy of Labeling” 78 Food Policy 6 (2018) (noting that “[m]andatory labeling of products
like genetically-modified organisms (GMOs) is subject to controversy and political debate. The exact outcome
depends on the specific public decision-making process (direct vote by the public vs. voting by representatives), the
political power distribution among groups, and the workings of legislative and regulatory processes”)
55
Grace Skogstad, Internationalization and Canadian Agriculture: Policy and Governing Paradigms
(Toronto: University of Toronto Press, 2008)
18

instead favoured a pre-marketing assessment of GM food as a better mechanism to protect
consumers and balance competing interests.
This consistent opposition to mandatory GM food labelling legislation for more than 20 years is
apparently associated with the interest in protecting a multi-million dollar biotechnology industry.
Canada has ranked as the world’s top fourth country with the largest area of genetically modified
crops in 2018, below the United States, Brazil and Argentina.56 In terms of acreage, the most
commonly genetically modified crops worldwide are soybeans, corn, cotton, and rapeseed as of
2017.57 Canada has 12.7 million hectares dedicated to genetically modified crops.58
On the other hand, consumer, environmental, and health groups have often raised concerns about
the public health and environmental impact of GM food. Yet, it appears that the views of the
biotechnology industry against mandatory GM food labelling have prevailed in the end. The views
of the government and biotechnology companies have been dominant in the debate about GM food
labelling despite significant public opposition. Their approach has overshadowed the views of
consumers and even GM food scientists. The Canadian institutional framework and in particular
the GM food labelling regime have been more sensitive to the interests of biotechnology plant
developers and users and less responsive to critics of the technology and the regulatory approach.59
56
M. Shahbandeh, “Global genetically modified crops by countries 2018, based on acreage” Statista, Aug 17, 2020,
https://www.statista.com/statistics/271897/leading-countries-by-acreage-of-genetically-modified-crops/; “GMOs are
in our food, but we aren’t being told about them” CBC Docs, https://www.cbc.ca/cbcdocspov/features/gmos-are-in-
our-food-but-we-arent-being-told-about-them (noting that “Canada is the 4th largest producer of GMO crops”)
57
https://www.statista.com/statistics/271897/leading-countries-by-acreage-of-genetically-modified-crops/
58
https://www.statista.com/statistics/271897/leading-countries-by-acreage-of-genetically-modified-crops/
59
See, generally, e.g. Grace Skogstad, Internationalization and Canadian Agriculture: Policy and Governing
Paradigms (Toronto: University of Toronto Press, 2008) at 211.
19

The Canadian government’s favourable position toward agricultural biotechnology has certainly
played a critical role in creating that imbalance.60
The growing global consensus over mandatory GM food labelling further exposes Canada’s
controversial view of GM food risk and its regulation. Canada’s voluntary GM food labelling
policies persist even though the old international consensus, that held that there were no
fundamental differences between GM and non-GM products, has evaporated. In fact,
disparate regulatory frameworks of GM food developed in North America and Europe after 1997,61
evidencing the existence of regulatory options and the lack of consensus over the risks associated
with GM food and the importance of consumer choice. While the biotechnology industry and some
governments and scientists continue to endorse GM foods,62 most countries are legally requiring
the labelling of GM foods embracing consumers’ right to know and a precautionary approach.
Contrary to Canada’s GM food labelling policy, there are currently 65 countries that require the
labelling of GM foods in the world including the United States, United Kingdom, Europe. China,
60
See e.g. Tourangeau, W. (2017) “GMO doublespeak: An analysis of power and discourse in Canadian debates over
agricultural biotechnology”, Canadian Food Studies / La Revue canadienne des études sur l’alimentation, 4(1), pp.
108-138 (arguing that “the Canadian state’s overall positive position toward agricultural biotechnology provides
leverage to pro-biotech public relations, while delimiting the direction of anti-biotech campaigns”)
61
Grace Skogstad, Internationalization and Canadian Agriculture: Policy and Governing Paradigms
(Toronto: University of Toronto Press, 2008) at 210.
62
See e.g. Fernbach, P.M., Light, N., Scott, S.E. et al. “Extreme opponents of genetically modified foods know the
least but think they know the most.” Nat Hum Behav 3, 251–256 (2019) (claiming that “[t]here is widespread
agreement among scientists that genetically modified foods are safe to consume and have the potential to provide
substantial benefits to humankind”); “Laureates Letter Supporting Precision Agriculture (GMOs)”, June 29th 2016,
https://www.supportprecisionagriculture.org/nobel-laureate-gmo-letter_rjr.html (more than one hundred Nobel
Laureates expressed their support for GM foods and the Golden Rice in particular to alleviate poverty and hunger in
the developing world. They urged “Greenpeace and its supporters to re-examine the experience of farmers and
consumers worldwide with crops and foods improved through biotechnology, recognize the findings of authoritative
scientific bodies and regulatory agencies, and abandon their campaign against "GMOs" in general and Golden Rice
in particular. …WE CALL UPON GOVERNMENTS OF THE WORLD to reject Greenpeace's campaign against
Golden Rice specifically, and crops and foods improved through biotechnology in general; and to do everything in
their power to oppose Greenpeace's actions and accelerate the access of farmers to all the tools of modern biology,
especially seeds improved through biotechnology. Opposition based on emotion and dogma contradicted by data must
be stopped. How many poor people in the world must die before we consider this a "crime against humanity"?”)
20

Japan, India, Russia, and Brazil.63 In the United States, on July 29, 2016, President Barack Obama
signed into law the National Bioengineered Food Disclosure Standard (NBFDS), and, on
December 20, 2018, the USDA released the final regulations for the NBFDS detailing the
obligations of food manufactures, importers, and certain retailers to disclose bioengineered foods
to consumers.64 On January 1, 2022, the NBFDS came into effect and is now of mandatory
compliance. Regulated entities may disclose via texts, symbols, electronic or digital links, web
address, or phone number.65 Like Canada, GM food labelling is not mandatory in Mexico,
Argentina, Chile, Pakistan, and most of Africa.66
It should not be surprising, then, that public criticism of Canada’s voluntary GM food labelling
policies continues to grow amid the increasing global consensus to the contrary. Ultimately, this
63
“How are GMOs labeled around the world”, GENETIC LITERACY PROJECT,
https://geneticliteracyproject.org/gmo-faq/how-are-gmos-labeled-around-the-world/; Mariana Piton Hakim, Luis
D'Avoglio Zanetta, Julicristie Machado de Oliveira and Diogo Thimoteo da Cunha, “The mandatory labeling of
genetically modified foods in Brazil: Consumer’s knowledge, trust, and risk perception” vol 132 Food Research
International, 2020 (noting that “[s]ince 2003, Brazilian-specific legislation has stipulated that foods containing more
than 1% of genetically modified (GM) ingredients must provide information regarding their origin with an
identification symbol on its label”); Zhu, Xiao, Michael T. Roberts, and Kaijie Wu. "Genetically modified food
labeling in China: in pursuit of a rational path." (2016) 71 Food & Drug LJ 30.
64
Pub. L. No. 114-216, 130 Stat. 834; National Bioengineered Food Disclosure Standard, 7 U.S.C. §1639b (2016);
Bioengineered Disclosure, UDSA, https://www.ams.usda.gov/rules-regulations/be. See also Evans, Halie M. "A New
Age of Evolution: Protecting the Consumer's Moral and Legal Right to Know through the Clear and Transparent
Labeling of All Genetically Modified Foods" (2019) 33:1 JL & Health 17, 1-2. The final regulations have been
criticized for leaving the majority of GMO foods unlabeled. See e.g. Andrew Kimbrell, et al., Long-Awaited Final
Regulations for GMO Food Labeling Leave Millions of Americans in the Dark, THE CENTER FOR FOOD SAFETY
(Dec 20, 2018), https://www.commondreams.org/newswire/2018/12/20/long-awaited-final-regulations-gmo- food-
labeling-leave-millions-americans-dark; Canadian Biotechnology Action Network, “Groups Urge Canada to Reject
New U.S. Example of GM Food Labelling”, December 21, 2018, https://cban.ca/groups-urge-canada-to-reject-new-
u-s-example-of-gm-food-labelling/.
65
USDA, U.S. Department of Agriculture, the Agricultural Marketing Service, “BE Disclosure”,
https://www.ams.usda.gov/rules-regulations/be (accessed June 9, 2022). See also Laura Reiley, “The USDA’s new
labeling for genetically modified foods goes into effect Jan. 1. Here’s what you need to know. The agency has done
away with familiar terms like ‘GMOs’ and has built in loopholes for tiny producers, and foods made with meat and
eggs”, The Washington Post, January 1, 2022, https://www.washingtonpost.com/business/2022/01/01/usda-
bioengineered-food-rules/
66
“How are GMOs labeled around the world”, GENETIC LITERACY PROJECT,
https://geneticliteracyproject.org/gmo-faq/how-are-gmos-labeled-around-the-world/
21

reveals how relative and ideological the social construction of GM food risk and its regulation can
be in Canada and the difficulties of the biotechnology industry and the government in maintaining
the legitimacy and effectiveness of the voluntary GM food labelling policies.
In sum, the views and interests of the biotechnology industry and political elites seem to have
prevailed in the defeat of mandatory GM food labelling legislation, the establishment of a
voluntary GM food labelling regime, and the development of an increasingly unreliable pre-
marketing safety assessment system. It appears that low-risk bearing business and political elites
have determined the risk that high-risk bearing citizen-consumers must bear in the last 20 years in
Canada. This provides some empirical evidence for the rise of authoritarian paternalism in
consumer law-making.
THE CURRENT GM FOOD LEGAL REGIME AND THE EXPOSURE TO HEALTH
AND ENVIRONMENTAL RISKS
The defeat of proposed mandatory GM food labelling legislation for over 20 years in Canada and
the introduction of voluntary GM food labelling have led to solely rely on a system of pre-
marketing assessment of the safety of GM food. Thus, the safety of consumers has been left in the
hands of Health Canada. GM food products are assessed and approved by Health Canada before
they enter the market and the Canadian Food Inspection Agency monitors the safety of GM foods
after they are released on the market.67 In September 2020, the Government of Canada claimed
67
Health Canada, “The safety of genetically modified (GM) foods”, September 30, 2020,
foods/safety.html
22

that “Health Canada has been assessing GM foods for more than 20 years. As of 2019, over
140 genetically modified (GM) foods have been permitted for sale in Canada”.68 Yet, Health
Canada does not conduct its own tests on GM foods, but relies almost entirely on information
provided by the companies that seek approval for their food products.69 Even if Health Canada’s
scientists may want to supplement company-generated data with other data, they rely on studies
published in scientific journals that are dominated by studies of developer testing.70 All
information is not public,71 and the safety assessment appears to be more responsive to the needs
of the biotechnology industry.72 Furthermore, there does not seem to be a strong monitoring of the
possible health impacts of GM food.73 This reliance on the safety assessment of a non-transparent
68
foods/safety.html
69
foods/safety.html (describing its safety assessment of GM foods as follows:
“The main steps in the safety assessment:
1. A manufacturer, importer or developer submits detailed information to Health Canada. They outline
exactly how the product was developed.
2. If the data provided is not complete, Health Canada scientists will ask the developer for more information
and scientific data. Some products that do not meet our strict criteria either have their submission closed
by Health Canada, or withdrawn voluntarily by the manufacturer before a safety assessment is
completed.
3. Health Canada scientists may supplement the information submitted by the manufacturer with relevant
published data from the larger scientific community. …
The use of company-generated data to perform pre-market assessments of GM foods is a standard scientific
method of evaluation used by regulators around the world. …”
See also Canadian Biotechnology Action Network, “Human Health Risks”, https://cban.ca/gmos/issues/human-
health-risks/ (noting the same)
70
foods/safety.html (acknowledging that “[w]hile many studies published in scientific journals are the result of
developer testing, a significant number of independent laboratories are also studying and publishing on the safety of
GM foods”)
71
Canadian Biotechnology Action Network, “Human Health Risks”, https://cban.ca/gmos/issues/human-health-
risks/
72
See e.g. Anna Poliszot, “Food for Thought: Improving the Canadian Genetically Modified Food Safety Assessment
Process by Integrating the Precautionary Principle as A Guiding Framework, 7 Wm. & Mary Pol'y Rev. 1 (2016)
(claiming that “Health Canada appears to interpret the precautionary principle to respond to the needs of the
biotechnology industry”).
73
Canadian Biotechnology Action Network, “GMO Basics”, https://cban.ca/gmos/faq/
23

government agency is even more problematic in light of the lack of global scientific consensus on
the safety of GM foods as shown by the mandatory GM food labelling legislation in most countries
and the lack of sufficient independent scientific studies of the current and long-term impact of GM
food consumption on human health and the environment.74
Releasing GM food for human consumption continues to be largely an experiment that may be
exposing Canadian consumers and the environment to unknown risks. This is extremely
concerning as more than 75% of processed foods on supermarket shelves contain genetically
engineered ingredients, from soda to soup, crackers to condiments,75 and most meat, dairy, and
egg products carry GMOs as they are derived from animals that are fed with genetically modified
crops.76 Many GM crops and foods are currently on the market in Canada. Canola, corn, soy, and
sugar beet are genetically modified crops that are grown in Canada.77 Some claim that 90 per cent
of all crops grown in Canada are genetically modified.78 GM alfalfa was introduced in 2016 and
74
Canadian Biotechnology Action Network, “Human Health Risks”, https://cban.ca/gmos/issues/human-health-risks/
(noting the lack of scientific consensus on the safety of GM foods); Canadian Biotechnology Action Network, “Are
GM crops better for Consumers?” Report 3, September 2015, https://cban.ca/wp-content/uploads/Are-GM-crops-
better-for-consumers-E-web.pdf
75
Center for Food Safety, “About Genetically Engineered Food”, https://www.centerforfoodsafety.org/issues/311/ge-
foods/about-ge-foods; “GMOs are in our food, but we aren’t being told about them” CBC Docs,
“GMOs are also found in almost 75 per cent of our processed foods, in everything from chips to soda”); Hollie Shaw,
“Canadians deeply divided over genetically modified food, study shows”, The Financial Post, May 24, 2018,
https://financialpost.com/news/retail-marketing/canadians-deeply-divided-over-genetically-modified-food-study-
show.
(reporting that “an estimated 75 to 85 per cent of the food available for sale has at least one GM ingredient, said
Sylvain Charlebois, dean of management at Dalhousie University”)
76
https://www.cbc.ca/cbcdocspov/features/gmos-are-in-our-food-but-we-arent-being-told-about-them
77
Canadian Biotechnology Action Network, “GM crops and foods on the market in Canada”,
https://cban.ca/gmos/products/on-the-market/
78
Hollie Shaw, “Canadians deeply divided over genetically modified food, study shows”, The Financial Post, May
24, 2018, https://financialpost.com/news/retail-marketing/canadians-deeply-divided-over-genetically-modified-food-
study-show (reporting that Sylvain Charlebois, dean of management at Dalhousie University, made that claim)
24

GM Atlantic salmon in 2020.79 GM apple, papaya, squash, and cottonseed oil are reportedly
imported into Canada.80 GM crops end up as processed food ingredients and animal feed.81 It is
thus not surprising to find that most foods on Canadian markets have GM ingredients.
GM food may be harmful to human health and the environment. Crops are genetically engineered
to be insect resistant and/or herbicide tolerant. 82 For instance, approximately 80 percent of the
canola grown in Canada has been modified using biotechnology "to make it tolerant to some
herbicides” according to the Canola Council of Canada.83 GM crops usually require huge amounts
of herbicides. For example, Roundup, a herbicide widely used for GM crops, contains glyphosate,
which is an extremely harmful chemical that is uptaken in human bodies.84 This concern for human
health has been reinvigorated by the 2015 finding of the World Health Organization’s International
Agency for Research on Cancer (IARC) that indicated that glyphosate, the world’s most
commonly used herbicide, is probably a human carcinogen. IARC concluded that “[t]he herbicide
glyphosate and the insecticides malathion and diazinon were classified as probably carcinogenic
to humans (Group 2A)”.85 IARC explains how people are exposed to glyphosate including through
GM food and diet:
79
80
81
82
83
“Label genetically modified foods, Yukon farmer urges Trudeau”, CBC News, Dec 15, 2015
https://www.cbc.ca/news/canada/north/yukon-farmer-petitions-for-gmo-food-labelling-1.3362851
84
“Label genetically modified foods, Yukon farmer urges Trudeau”, CBC News, Dec 15, 2015
https://www.cbc.ca/news/canada/north/yukon-farmer-petitions-for-gmo-food-labelling-1.3362851(reporting on a
Canadian farmer’s experience with GM crops and the use of Roundup)
85
25

Glyphosate currently has the highest global production volume of all herbicides. The
largest use worldwide is in agriculture. The agricultural use of glyphosate has increased
sharply since the development of crops that have been genetically modified to make them
resistant to glyphosate. Glyphosate is also used in forestry, urban, and home applications.
Glyphosate has been detected in the air during spraying, in water, and in food. The general
population is exposed primarily through residence near sprayed areas, home use, and diet,
and the level that has been observed is generally low.86
Some studies have found glyphosate residues in foods that are available on Canadian markets. In
April 2017, the Canadian Food Inspection Agency (CFIA) published the results of its testing of
foods for glyphosate residues during the 2015-2016 period.87 The CFIA tested 3,188 food samples
that included 482 samples of fresh and processed fruits and vegetables, retail survey of 2497
samples of grains (barley, buckwheat and quinoa), beverages, bean, pea, lentil, chickpea, and soy
products, and a survey of over 209 retail samples of infant foods.88 Glyphosate residues were found
in food, but only grain products contained residues exceeding the Canadian limits, and the report
concluded that there were no overall human health concerns:
content/uploads/2018/07/MonographVolume112-1.pdf (emphasis in original). See also Manolis Kogevinas,

“Probable carcinogenicity of glyphosate”, Editorials, BMJ, 8 April,
2019; 365:l1613 doi: https://doi.org/10.1136/bmj.l1613 (reporting on the 2015 finding by WHO’s IARC)
86
content/uploads/2018/07/MonographVolume112-1.pdf (emphasis in original). This 2015 finding was moderated in
2016. See the Food and Agriculture Organization of the United Nations (FAO) Panel of Experts on Pesticide Residues
in Food and the Environment and the World Health Organization (WHO) Core Assessment Group on Pesticide
Residues (JMPR), JOINT FAO/WHO MEETING ON PESTICIDE RESIDUES, Geneva, 9–13 May 2016
SUMMARY REPORT, Issued 16 May 2016, https://www.who.int/foodsafety/jmprsummary2016.pdf?ua= (stating
that “[i]n view of the absence of carcinogenic potential in rodents at human-relevant doses and the absence of
genotoxicity by the oral route in mammals, and considering the epidemiological evidence from occupational
exposures, the Meeting concluded that glyphosate is unlikely to pose a carcinogenic risk to humans from exposure
through the diet”)
87
16_0184101.pdf#_ga=1.196489061.892407858.1492107204
88
16_0184101.pdf#_ga=1.196489061.892407858.1492107204
26

The overall compliance rate for these surveys, based on Canadian Maximum Residue
Limits (MRL), was 98.7 %. No samples of fruits and vegetables, soy products, or infant
foods were found to contain residues exceeding Canadian limits. Most samples found with
levels of residues exceeding Canadian limits were predominantly associated with grain
products. … Glyphosate was found in 29.7% of samples. Glyphosate residues above MRLs
were found in only 1.3% of samples. This data was evaluated by Health Canada and no
human health concerns were identified.89
Another study also found glyphosate residues in food samples in Canada. These findings, however,
were no cause for concerns as such residues did not pose risk to human health, according to the
study. A team of researchers from CFIA published a study in April 2020 that examined the
glyphosate residue contents of 7955 samples of fresh fruits and vegetables, milled grain products,
pulse products, and finished foods.90 These food samples were collected from April 2015 to March
2017 in the Canadian retail market. It found that a total of 3366 samples (42.3%) contained
detectable glyphosate residues.91 The compliance rate with Canadian regulations was however
99.4%. The 0.6% of samples that exceeded MRLs did not present a risk to human health, according
to the authors of the study.92 Health Canada determined that there was no long-term health risk to
Canadian consumers from exposure to the levels of glyphosate found in the samples of a variety
89
16_0184101.pdf#_ga=1.196489061.892407858.1492107204
90
Beata M. Kolakowski, Leigh Miller, Angela Murray, Andrea Leclair, Henri Bietlot, and Jeffrey M. van de Riet,
“Analysis of Glyphosate Residues in Foods from the Canadian Retail Markets between 2015 and 2017”, J. Agric.
Food Chem., April 2020, 68, 18, 5201–5211.
91
Food Chem., April 2020, 68, 18, 5201–5211.
92
Food Chem., April 2020, 68, 18, 5201–5211.
27

of foods examined. The study concluded that, concerning glyphosates, the food available for sale
in Canada is safe.93
However, the above studies conducted by Health Canada, the Canadian Food Inspection Agency,
and their researchers have been subject to criticisms. Concerns have been raised about the validity
of CFIA’s and Health Canada’s conclusions that glyphosate found in GM foods poses no risk to
Canadians as such evaluations may allegedly be based on biased, outdated, or inadequate science.
The number of samples and products examined may be low, and regional differences among other
things were not considered.94 The likelihood of finding more glyphosate residues in Canadian
foods appears to be high in light of the 243% increase in herbicide sales between 1994 and 2017,
and the wide use of glyphosate also as a desiccant. Glyphosate is sprayed on crops to dry them so
that they can be harvested more quickly, but it increases the glyphosate residues in foods.95 This
is probably the case of grain products, whose consumption has been promoted in the last years.
The risk of intaking small glyphosate residues over a longer period in the life of a consumer is also
unknown. Additionally, recent studies are showing that glyphosate may be harmful to freshwater
ecosystems.96
93
Food Chem., April 2020, 68, 18, 5201–5211.
94
16_0184101.pdf#_ga=1.196489061.892407858.1492107204 (noting the limitations of its 2015-2016 study, state that
“[d]ue to the low number of samples and products analyzed, care must be taken when interpreting these results.
Regional differences, impact of product shelf-life, storage conditions, or cost of the commodity on the open market
were not examined in this survey.”)
95
Canadian Biotechnology Action Network, “In-Depth Update: Glyphosate and Other Pesticides, and Genetically
Engineered Crops”, CBAN, E-News, May 23, 2019, https://cban.ca/?na=v&nk=4-2d22868b3a&id=124
96
McGill University, Newsroom, “Freshwater ecosystems at risk due to glyphosate use. Plankton communities
impaired even under currently acceptable North American water quality herbicide guidelines”, September 7, 2021,
https://www.mcgill.ca/newsroom/channels/news/freshwater-ecosystems-risk-due-glyphosate-use-333104; “New
research shows glyphosate could be harmful to freshwater ecosystems” CBC News, September 24, 2021,
28

Furthermore, in 2018 and 2019, the Canadian media reported that Monsanto manipulated scientific
studies of glyphosate, which were used by Health Canada in its 2017 re-approval of glyphosate.97
The data that Health Canada used was not subject to independent peer review, and, in January
2019, the Pest Management Regulatory Agency (PMRA), a branch of Health Canada, “rejected
the eight notices of objection filed by doctors, academics and medical groups that wanted an
independent panel to review its re-approval decision”.98 The PMRA’s decision to dismiss the
objections to its glyphosate evaluation and re-approval and avoid a review panel was challenged
in court. In February 2022, the Federal Court of Appeal in Safe Food Matters Inc v Canada99
quashed the decision of the PMRA and remitted the matter back to the PMRA for reconsideration
of the objections and the request for an independent review panel. The controversy over the
https://www.cbc.ca/news/canada/nova-scotia/new-research-glyphosate-harmful-freshwater-ecosystems-1.6186992
(noting that “[c]oncentrations of glyphosate as low as 0.1 milligrams per litre could kill zooplankton”)
97
Gil Shochat and Sylvie Fournier, “Court documents reveal Monsanto's efforts to fight glyphosate's 'severe stigma'.
Canadian firm hired to recruit scientists to publish studies that ultimately defended Roundup's key ingredient”, CBC
News, Mar 12, 2019, https://www.cbc.ca/news/health/glyphosate-monsanto-intertek-studies-1.4902229. See also
"The Monsanto Papers: The Canadian Connection" CBC Documentary, Enquete, February 21, 2019 (noting that
"[t]he Monsanto Papers are secret company documents that show disturbing practices used to defend glyphosate, the
main ingredient in Roundup, including allegations of ghostwriting of scientific articles. They show how a Canadian
firm recruited scientists to publish certain studies and how a number of them were secretly reviewed by Monsanto
prior to publication. The same studies were used as part of Health Canada’s re-approval process of glyphosate. The
Monsanto Papers were released in the court case of Dewayne Johnson, a cancer patient who sued the Monsanto and
won a $78 million settlement in 2018"); “The debate over whether glyphosate causes cancer”, The Weekly with
Wendy Mesley, CBC, 2018, https://www.cbc.ca/player/play/1459798083771 (investigating whether Health Canada
was influenced by a multi-billion dollar corporation, found that Health Canada used science Monsanto paid for to
decide the chemical is safe. Health Canada’s glyphosate re-approval decision was based in large part on studies written
by industry. Monsanto hired the Canadian company Intertek to coordinate four "independent expert panels" to publish
papers in the journal Critical Reviews in Toxicology. The 15 researchers concluded that the herbicide ingredient
glyphosate is not a carcinogen. In defending its glyphosate re-approval decision, Health Canada cited those papers.).
See also “SAFE FOOD MATTERS Going to Court Over Roundup/Glyphosate”, Safe Food Matters, Toronto,
February 12, 2019, https://safefoodmatters.org/2019/02/13/going-to-court/ (challenging Health Canada’s re-approval
of glyphosate)
98
Gil Shochat and Sylvie Fournier, “Court documents reveal Monsanto's efforts to fight glyphosate's 'severe stigma'.
Canadian firm hired to recruit scientists to publish studies that ultimately defended Roundup's key ingredient”, CBC
News, Mar 12, 2019, https://www.cbc.ca/news/health/glyphosate-monsanto-intertek-studies-1.4902229
99
Safe Food Matters Inc. v. Canada (Attorney General), 2022 FCA 19 (CanLII), <https://canlii.ca/t/jm3jh>
29

agricultural and domestic use of glyphosate continues to grow across Canada. On January 1, 2022,
the city of Montreal banned glyphosate and is under pressure to enforce it widely.100
Several lawsuits against glyphosate-based Roundup manufacturers, Monsanto and Bayer, have
been brought in Canada. Suits have been filed in British Columbia, Quebec, Saskatchewan, and
Manitoba. A Saskatchewan farmer who was diagnosed with non-Hodgkin's lymphoma has
launched the first farmer class action suit against Bayer and Monsanto in 2019 alleging that
exposure to Roundup contributed to his cancer and the company withheld information about
safety.101 Similarly, Diamond & Diamond, a national personal injury law firm in Canada, has
brought a $500 million class-action lawsuit against various Roundup makers, including Bayer and
Monsanto, in 2019 alleging that the chemical ingredient in the product, glyphosate, can cause
various health risks.102
Outside Canada, courts are increasingly inclined to believe that there is a link between glyphosate
and cancer. In May 2019, a US jury ordered Monsanto to pay more than $ 2 billion in damages to
a married couple Alva and Alberta Pilliod who developed the cancer non-Hodgkin's lymphoma
after years of using Roundup.103 In June 2020, Bayer settled with thousands of U.S. plaintiffs over
claims that its glyphosate-based Roundup weedkiller causes cancer. The cost of that settlement
100
“Stores selling banned herbicide glyphosate will be fined, says Montreal mayor” CBC News, Mar 21, 2022,
https://www.cbc.ca/news/canada/montreal/roundup-glyphosate-pesticide-ban-montreal-1.6392284
101
Alicia Bridges, “Sask. farmer lead plaintiff in class action over Roundup cancer claim”, CBC News, May 16, 2019,
https://www.cbc.ca/news/canada/saskatchewan/merchant-roundup-class-action-monsanto-1.5138038
102
“Lawyers launch $500M class-action lawsuit against Roundup makers”, CBC News, Nov 22, 2019,
https://www.cbc.ca/news/business/class-action-lawsuit-roundup-1.5366184
103
“It's about justice, not money in $2B US Roundup verdict, lawyer says”, CBC Radio, May 14, 2019,
https://www.cbc.ca/radio/asithappens/as-it-happens-tuesday-edition-1.5135217/it-s-about-justice-not-money-in-2b-
us-roundup-verdict-lawyer-says-1.5135614
30

was estimated at US$ 11 billion and will be reviewed further to account for future cases that may
still be lodged as indicated by a judge.104 In early 2022, Bayer stated that 107,000 of the 138,000
glyphosate claims have been resolved with the plaintiffs.105 These settlements appear to be Bayer’s
strategy to avoid further financial and reputational risks and economic losses associated with the
massive Roundup litigation that is being pursued by numerous cancer victims. This was probably
prompted by the successful lawsuit brought by Dewayne "Lee" Johnson against Monsanto
(controlled by Bayer) in 2016, the first case to go to trial in the U.S. Johnson alleged that his non-
Hodgkin's lymphoma cancer was caused by Roundup and Ranger Pro, two Monsanto glyphosate
herbicides. After several years of litigation, in October 2020, the California Supreme Court denied
Monsanto's appeal of a San Francisco jury's unprecedented verdict that found the company's
widely used herbicide caused a school groundskeeper's cancer, and that the company ignored
public safety in marketing its product. The court also denied the review of the groundskeeper's
appeal of a lower-court ruling that reduced his damages from $78.5 million to $21.5 million.106
More recently, the U.S. Supreme Court is expected to decide in June 2022 whether it will hear
Bayer’s bid to dismiss claims that its Roundup weedkiller causes cancer as the company seeks to
avoid billions of dollars more in potential damages and payouts.107 Bayer is appealing a court
decision that upheld $25 million in damages awarded to a California resident who used glyphosate-
104
“Bayer Takes €9.25 Billion ($10.8 Billion) Writedown in Q3 on Impairments in Agriculture Business”, 2020
WLNR 31341285, Equities.com, Reuters, November 4, 2020; “Bayer takes over-$10 bln writedown”, Reuters US
Business News, November 3, 2020.
105
Lawrence Hurley & Ludwig Burger, “U.S. Supreme Court will soon decide whether to hear Bayer's weedkiller
case”, Reuters, June 10, 2022, https://www.reuters.com/business/healthcare-pharmaceuticals/us-supreme-court-will-
soon-decide-whether-hear-bayers-weedkiller-case-2022-06-10/. See also “Bayer Takes €9.25 Billion ($10.8 Billion)
Writedown in Q3 on Impairments in Agriculture Business”, 2020 WLNR 31341285, Equities.com, Reuters,
November 4, 2020.
106
Bob Egelko, “Roundup cancer case appeals -- by plaintiff and defendant -- turned down by Calif. Supreme
Court”, 2020 WLNR 29959711, San Francisco Chronicle (CA), October 21, 2020.
107
soon-decide-whether-hear-bayers-weedkiller-case-2022-06-10/
31

based weedkiller Roundup and blamed his cancer on that herbicide. 108 The Biden administration
has asked the Supreme Court to reject Bayer’s petition, and analysts believe that the Court is
unlikely to hear the case. 109
The US Agency for Toxic Substances and Disease Registry issued its August 2020 report
recognizing that “[h]uman studies have reported possible associations between glyphosate
herbicide use and various health outcomes”.110 This represents a departure from the court decision
in the controversy between California and Monsanto over glyphosate. On March 28, 2017, the
California Environmental Protection Agency’s Office of Environmental Health Hazard
Assessment decided to add glyphosate to California’s Proposition 65 list of chemicals known to
cause cancer. 111 Monsanto sued to block the action and ultimately in 2018 the court sided with
Monsanto finding that California could only require commercial speech that discloses factual and
uncontroversial information and the science surrounding glyphosate carcinogenicity was
unproven.
The European Commission is currently re-assessing the risks associated with glyphosate. On May
10, 2019, the European Commission appointed France, Hungary, the Netherlands and Sweden
(the Assessment Group on Glyphosate, AGG) to assess whether or not the glyphosate should be
108
109
110
U.S. Department of Health and Human Services, Agency for Toxic Substances and Disease Registry,
“Toxicological Profile for Glyphosate”, August 2020, at 3, https://www.atsdr.cdc.gov/toxprofiles/tp214.pdf
https://www.atsdr.cdc.gov/toxprofiles/tp214.pdf
111
California Office of Environmental Health Hazard Assessment, “Glyphosate to be added to Proposition 65 list of
chemicals”, Mar 28, 2017, https://oehha.ca.gov/public-information/press-release/press-release-proposition-
65/glyphosate-be-added-proposition-65
32

banned after December 15, 2022, the expiration date of its 2017 approval in Europe.112 On 12
December 2019, the Glyphosate Renewal Group (a group of companies seeking the renewal of
approval of glyphosate in the EU) submitted an application for the renewal of approval of
glyphosate post-2022 to the AGG, the other Member States, the European Food Safety Authority
(EFSA), and the European Commission.113 While the assessment process has not concluded, the
latest reports continue to show concerns about the risk of glyphosate to human health and the
environment. On May 30, 2022, the Committee for Risk Assessment (RAC) of the European
Chemical Agency (ECHA, an agency of the European Union) issued a recommendation to retain
the existing classifications for glyphosate “as a substance that causes serious eye damage and is
toxic to aquatic life with long lasting effects”. 114 The committee also found that “the available
scientific evidence did not meet the criteria to classify glyphosate for specific target organ toxicity,
or as a carcinogenic, mutagenic or reprotoxic substance.”115 Further reports are expected in the
coming months that may change or expand the findings. For instance, the European Food Safety
Authority will carry out its own risk assessment of glyphosate, which is expected in July 2023. 116
The European Commission will analyze all the assessments and put forward a report on whether
to renew or not the approval of glyphosate.
The ongoing changes in the approach taken by courts and regulatory agencies probably reflect the
findings of new research on glyphosate. For instance, a 2019 study found that there is a compelling
112
European Food Safety Authority, “Glyphosate” (describing the approval process and reporting on the latest
developments), https://www.efsa.europa.eu/en/topics/topic/glyphosate (accessed on June 9, 2022).
113
European Commission, “Glyphosate”, https://ec.europa.eu/food/plant/pesticides/glyphosate_en
114
ECHA, “Glyphosate: no change proposed to hazard classification” ECHA/NR/22/10, May 30, 2022,
https://www.echa.europa.eu/-/glyphosate-no-change-proposed-to-hazard-classification (accessed on June 10, 2022)
115
116
33

link between non-Hodgkins lymphoma in humans and glyphosate.117 Another 2019 study
examined the transgenerational effects of being exposed to glyphosate. Experimenting with rats,
this research found that second and third generation offspring of rats exposed to glyphosate were
more likely to develop prostate, kidney and ovarian diseases, obesity, and birth abnormalities.118
In 2019, the International Federation of Gynecology and Obstetrics recommended that “glyphosate
exposure to populations should end with a full global phase out.”119 In 2017, a group of researchers
concluded that the safety assessment of glyphosate was outdated, sounding further alarms about
its impact on human health and the environment.120
GM FOOD LAW, INTEREST GROUPS, AND AUTHORITARIAN PATERNALISM IN
117
Zhang L, Rana I, Shaffer RM, Taioli E, Sheppard L. Exposure to glyphosate-based herbicides and risk for non-
Hodgkin lymphoma: A meta-analysis and supporting evidence. Mutat Res. 2019 Jul-Sep;781:186-206. doi:
10.1016/j.mrrev.2019.02.001. Epub 2019 Feb 10. PMID: 31342895; PMCID: PMC6706269 (concluding that
“[o]verall, in accordance with findings from experimental animal and mechanistic studies, our current meta-analysis
of human epidemiological studies suggests a compelling link between exposures to GBHs and increased risk for
NHL”. GBHs stand for glyphosate-based herbicides and NHL stands for non-Hodgkin lymphoma)
118
Kubsad, D., Nilsson, E.E., King, S.E. et al. Assessment of Glyphosate Induced Epigenetic Transgenerational
Inheritance of Pathologies and Sperm Epimutations: Generational Toxicology. Sci Rep 9, 6372 (2019).
https://doi.org/10.1038/s41598-019-42860-0 (“One of the most widely used agricultural pesticides worldwide is the
herbicide glyphosate (N-(phosphonomethyl)glycine), commonly known as Roundup. There are an increasing number
of conflicting reports regarding the direct exposure toxicity (risk) of glyphosate, but no rigorous investigations on the
generational actions. The current study using a transient exposure of gestating F0 generation female rats found
negligible impacts of glyphosate on the directly exposed F0 generation, or F1 generation offspring pathology. In
contrast, dramatic increases in pathologies in the F2 generation grand-offspring, and F3 transgenerational great-grand-
offspring were observed. The transgenerational pathologies observed include prostate disease, obesity, kidney disease,
ovarian disease, and parturition (birth) abnormalities. … Therefore, we propose glyphosate can induce the
transgenerational inheritance of disease and germline (e.g. sperm) epimutations. Observations suggest the generational
toxicology of glyphosate needs to be considered in the disease etiology of future generations.”). See also the Health
and Environment Alliance (HEAL), “Health effects of glyphosate can be passed down to other generations, shows
new study on rodents”, 23 April 2019, https://www.env-health.org/health-effects-of-glyphosate-can-be-passed-down-
to-other-generations-shows-new-study-on-rodents/.
119
International Federation of Gynecology and Obstetrics, “Removal of glyphosate from global usage. Removal of
glyphosate from global usage: A Statement by the FIGO (International Federation of Gynecology and Obstetrics)
Committee on Reproductive and Developmental Environmental Health”, July 2019,
https://www.figo.org/removal-glyphosate-global-usage
120
Vandenberg LN, Blumberg B, Antoniou MN, et al, “Is it time to reassess current safety standards for glyphosate-
based herbicides?” J Epidemiol Community Health 2017;71:613-618 (“We conclude that current safety standards for
GBHs are outdated and may fail to protect public health or the environment”)
34

CONSUMER LAW
In light of the above review, Canada’s GM food legal framework, including the lack of mandatory
GM food labelling, becomes very controversial. It not only raises questions about the democratic
nature of the law-making process and consumer’s right to know,121 but it may also lead to
jeopardize the health of citizens and the sustainability of the environment. Canada’s voluntary GM
food labelling regime and business and political elites’ social construction of GM food risk
apparently underlying such regime are inconsistent with recent legal and scientific developments.
Instead, it appears that economic and political interests and economic functionalism have prevailed
in the approach of the biotechnology industry and the ruling political elites to consistently oppose
GM food labelling for more than 20 years. Consumers and the environment are bearing the risks
associated with GM food, and the consequences thereof remain to be seen.
The defeat of proposed mandatory GM food labelling legislation and the prevalence of the interests
and views of the biotechnology industry in Canada may provide some evidence for an interest
group approach to the making and enforcement of consumer law. They suggest that consumer law
making can be embedded in a complex communicative process in which interest groups and other
influential actors and their ideologies interact and compete for control and domination. To that
121
Recent empirical studies have shown that Canadian consumers are uninformed, uncertain, and divided about the
nature and health effects of GM foods. See e.g. Charlebois, S., Somogyi, S., Music, J. and Cunningham, C. (2019),
"Biotechnology in food: Canadian attitudes towards genetic engineering in both plant- and animal-based
foods", British Food Journal, Vol. 121 No. 12, pp. 3181-3192 (finding that “[c]onsumers misunderstand the nature of
genetic engineering or do not appreciate its prevalence in agrifood or both. In total, 44 per cent of Canadians are
confused about health effects of genetically engineered foods and ingredients. In total, 40 per cent believe that there
is not significant testing on genetically engineered food to protect consumers. In total, 52 per cent are uncertain on
their consumption of genetically engineered food, despite its prominence in the agrifood marketplace. Scientific
literacy of respondents on genetic engineering is low. While Canadians are divided on purchasing genetically
engineered animal-based products, 55 per cent indicated price is the most important factor when purchasing food.
… improving consumers’ scientific literacy on GM foods will reduce confusion and allow for more informed
purchasing decisions. Indeed, a proactive research agenda on biotechnologies can accommodate well-informed
discussions with public agencies, food businesses and consumers.”).
35

end, groups and individuals seek to penetrate the legal system and translate their values and
122
interests into legal discourses and legal policies that are consistent with their views. The
ultimate prevalence of a group’s interests, values, or ideologies can be reflected on consumer law
and policies, which in turn could be detrimental to consumers’ well-being. This appears to be the
case of Canadian consumers and GM food consumption. They have borne the GM food risk that
business and political elites believe it is “appropriate” for them in the past 20 years despite the
growing opposition from consumers and civil society organizations, scientific developments, and
new international laws and practices. This Canadian GM food regulatory history can be
characterized as a form of ‘authoritarian paternalism’ in consumer law, that is to say, business and
political groups and elite are the decision makers that have determined the risks that consumers
must bear and the harms they may suffer as legalized in consumer policies.
More generally, an interest group-based approach to consumer law and the presence of elements
of ‘authoritarian paternalism’ may raise questions about the explanatory or normative power of
traditional views of consumer law and policy. In particular, they may challenge the so-called
information rationale for consumer law making that seeks to describe and prescribe consumer law
as pursuing consumer sovereignty and empowering consumers with greater information disclosure
in market capitalism. Moreover, ‘libertarian paternalism’ and the ‘nudge approach’ advanced by
Harvard professor Cass Sunstein appear unrealistic and ineffective in light of the power of interest
groups and the presence of ‘authoritarian paternalism’. Sunstein claims that a nudge program is a
better intervention to promote individual well-being and advance the public good without
122
I articulated this view in an earlier work. See Alberto R. Salazar V., “The Complex Context of Contract Law”
(2004) 42 OSGOODE HALL L.J. 515 (proposing a ‘institutional communicative view’ of private law drawing on the
insights of German Ordoliberalism, social system theory, and institutional economics. Such an approach views the
law as embedded in the interpenetration of multiple social systems or orders and this inter-order communication is
mediated by power and individual and group activism that seeks to dominate the communicative process)
36

infringing on consumers’ freedom of choice.123 Yet, ‘the nudge approach’ unrealistically assumes
that the legal and political processes associated with nudge design and intervention are immune to
the influence of interest groups, among other things. 124 This work provides Canadian evidence to
the contrary.
CONCLUSION
This work has discussed the development of GM food labelling legislation in Canada and the
extent to which interest groups have shaped both the making of such legislation and the social
construction of GM food risk. It was argued that some interest groups have played a critical role
in the defeat of mandatory GM food labelling legislation for over 20 years in Canada. The views
and interests of the biotechnology industry and political elites seem to have prevailed in the defeat
of GM food labelling legislation and the establishment of a voluntary GM food labelling regime
and an increasingly unreliable pre-marketing safety assessment system. Low-risk bearing business
and political elites have apparently determined the risk that high-risk bearing citizen-consumers
must bear in the last 20 years in Canada. This can be regarded as a form of ‘authoritarian
paternalism’.
123
See e.g. Thaler, Richard H., and Cass R. Sunstein. "Libertarian paternalism." (2003) 93 (2) American economic
review 175.
124
I have pointed out this problem with ‘the nudge approach’ in an earlier work. See Alberto R. Salazar V. “Libertarian
paternalism and the dangers of nudging consumers” (2012) 23 (1) King's Law Journal 51. For a recent critique, see
e.g. Mario J. Rizzo and Glen Whitman, Escaping Paternalism: Rationality, Behavioral Economics, and Public Policy.
Cambridge University Press, 2020, https://www.cambridge.org/ca/academic/subjects/economics/macroeconomics-
and-monetary-economics/escaping-paternalism-rationality-behavioral-economics-and-public-
policy?format=HB&isbn=9781107016941 (challenging behavioral paternalism and the nudge approach, the author
claims that such an approach “neglects nonstandard preferences, experimentation, and self-discovery. It relies on
behavioral research that is often incomplete and unreliable. It demands a level of knowledge from policymakers that
they cannot reasonably obtain. It assumes a political process largely immune to the effects of ignorance, irrationality,
and the influence of special interests and moralists. Overall, behavioral paternalism underestimates the capacity of
people to solve their own problems, while overestimating the ability of experts and policymakers to design beneficial
interventions.”).
37

This paper has also shown that proposed mandatory GM food labelling legislation has become
another battlefield for larger competing interests. The potential for labelling to increase the
commercialization cost and reduce consumption of GM food is a cause for concern for the
biotechnology industry of Canada, the world’s 4th largest producer of GMO crops. On the other
hand, labelling is demanded by citizen-consumers to gain some knowledge and exercise their free
choices as their concerns over the risk of GM food to human health and the environment intensify.
These concerns have been reinvigorated by the 2015 finding of the World Health Organization’s
International Agency for Research on Cancer (IARC) that glyphosate, the world’s most commonly
used herbicide, is probably a human carcinogen; Bayer’s settlement with thousands of U.S.
plaintiffs over claims that its glyphosate-based Roundup causes cancer; the European
Commission’s ongoing assessment of whether to ban glyphosate; and the United States’ 2018
release of the final regulation of the 2016 National Bioengineered Food Disclosure Standard which
came into effect in January 2022, joining 64 countries that have adopted mandatory GM food
labelling. Theoretically, this work provides a case study that debunks some of the fundamental
claims of the information rationale for, and libertarian paternalism or nudge approach to, consumer
law and policy, which have been influential in the theory and practice of that field.
More empirical evidence based on qualitative and quantitative studies is needed to supplement the
preliminary findings of this work. It is also important to review and incorporate the findings of the
new scientific research on the risk of GM food to human health and the environment, which is not
widely circulated nor discussed. While a normative analysis is beyond the scope of this work,
serious consideration should be given to the need to improve the transparency and accountability
of the voluntary GM food labelling regime and the pre-marketing assessment and monitoring of
38

the safety of GM food conducted by Health Canada and Canadian Food Inspection Agency. It is
also critical to explore new democratic deliberation mechanisms to engage citizen-consumers, the
biotechnology industry, the government, and political parties in a wide public debate to devise a
system that balances the competing interests and advances independent GM food science and its
public dissemination.
39

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GM FOOD LAW, INTEREST GROUPS, AND HEALTH AND CLIMATE RISKS

Alberto R. Salazar V.1

Electronic copy available at: https://ssrn.com/abstract=4139459

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involve specific consumer protection laws.

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progress on the knowledge of GM food. To respond to those concerns, governments have

of citizen-consumers, regulators, environmental groups, and the food industry.

biotechnology industry often questions the necessity of GM food labelling as it imposes a

governments prefer to rely on a strict pre-marketing assessment of GM food safety as a way to

Electronic copy available at: https://ssrn.com/abstract=4139459

questionable pre-marketing safety assessment system. Consequently, low-risk bearing business

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attempts to introduce GM food labelling legislation in Canada.

and practice of consumer law and policy.

GMO FOOD LABELLING LAW IN CANADA 7

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claims about the use or non-use of genetic engineering in their products.9

THE DEFEAT OF MANDATORY GMO FOOD LABELLING LEGISLATION,

INTEREST GROUPS, AND THE SOCIAL CONSTRUCTION OF RISK IN CANADA

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voluntary labelling of GM food, which in fact was officially adopted in 2004:

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labelling of foods obtained, or not obtained, through genetic engineering”.16 Previously, in

proposed to amend the Food and Drugs Act as follows:

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government’s policy to support GM food consumption.

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Environmental Protection Agency decided to add glyphosate to Proposition 65 list of chemicals

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beyond the GM food labelling debate:

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(DowDupont), and 3 GM crops by Syngenta (ChemChina).32 A proposed mandatory GMO food

the growth of the biotechnology industry in Canada.

Canada’s safety assessment. 33

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cancer.46 The Petition e-2416 read as follows:

Petition to the Government of Canada

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foods/ingredients should be clearly labelled as such on food packages. 49

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Toronto-based group, filed an application in federal court to challenge the re-registration of

glyphosate, the active ingredient in Roundup herbicide.53

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consumers and balance competing interests.

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played a critical role in creating that imbalance.60

fundamental differences between GM and non-GM products, has evaporated. In fact,

Electronic copy available at: https://ssrn.com/abstract=4139459

Argentina, Chile, Pakistan, and most of Africa.66

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the legitimacy and effectiveness of the voluntary GM food labelling policies.

prevailed in the defeat of mandatory GM food labelling legislation, the establishment of a

THE CURRENT GM FOOD LEGAL REGIME AND THE EXPOSURE TO HEALTH

AND ENVIRONMENTAL RISKS

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food consumption on human health and the environment.74

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GM food and diet:

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