It’s Friday, pouring rain where I am (the normally picturesque, if perennially wet, Vancouver) so something a bit lighter for the blogs today. Over the past few days, I’ve been seeing reports of a fraudulent fish probe in the U.S. with some rather startling, if also a bit amusing, statistics.
According to media reports (see: Oceana Uncovers Rampant Seafood Fraud) and a recent study by the ocean conservation group Oceana, some 33% of seafood tested in major U.S. cities was mislabeled, with that number as high as 52% in some cases (in Southern California). In issuing its seafood fraud study, Oceana said:
“From 2010 to 2012, Oceana conducted one of the largest seafood fraud investigations in the world to date, collecting more than 1,200 seafood samples from 674 retail outlets in 21 states to determine if they were honestly labeled. DNA testing found that one-third (33 percent) of the 1,215 samples analyzed nationwide were mislabeled, according to U.S. Food and Drug Administration (FDA) guidelines. Of the most commonly collected fish types, samples sold as snapper and tuna had the highest mislabeling rates (87 and 59 percent, respectively), with the majority of the samples identified by DNA analysis as something other than what was found on the label. In fact, only seven of the 120 samples of red snapper purchased nationwide were actually red snapper. The other 113 samples were another fish.”
So what have U.S. fish lovers been eating? According to Oceana, substitutes included escolar or “snake mackerel” (instead of tuna) and tilapia (for snapper). Allegations of pure fraud aside, it occurred to me that this fish tale was both a good excuse to run down the key elements of misleading advertising in Canada. It also made me think of my own recent fish victimization story.
As for the law, the Competition Act includes civil and criminal misleading advertising provisions that, among other things, prohibit literally false or misleading product or business claims to the public. Some key points for companies, agencies and other advertisers to know is that the provisions apply to literally false or misleading claims to the public, to promote products or business interests that are “material”.
The materiality test – at least for the moment (this may change following a Quebec Supreme Court of Canada consumer protection case last year) – turns on whether an average consumer would likely be influenced into buying a product. In the case of fish, this might include where a fishmonger says you’re buying red snapper (yum) when in fact you’re buying “tilapia”, whatever that is. So mere puffery or fish tales likely don’t trip the legislation while claims about significantly spiffier fish than what’s in the box or bag probably would.
Other key points for advertisers and agencies to keep in mind include: the “general impression” not only the literal meaning of a claim is relevant; no-one actually needs to be misled to violate the misleading advertising sections of the Competition Act and claims made to non-Canadians can trigger the sections (e.g., cross-border marketing).
Potential penalties can also be rather unpleasant, which include civil fines up to $750,000 (for individuals) and $10 million (for companies), as well as restitution orders to potentially repay duped red snapper buyers.
In Canada food advertising is also highly regulated, including by the federal Food and Drugs Act, which, among other things, prohibits false, misleading or deceptive labelling, packaging or food advertising. Canadian federal food regulations also strictly regulate the packaging and labelling of food and requires certain information on food labels.
Fish labeling is in fact regulated by the Food and Drugs Act, Food and Drug Regulations, Consumer Packaging and Labelling Act (and Regulations), Fish Inspection Act (FIA) and Fish Inspection Regulations (see: Canadian Food Inspection Agency – Fish Labelling Reference Documents).
These various statutes, regulations and rules govern, among other things, fish labelling, common names for fish, net quantity declarations, quantitative descriptions (e.g., fish size, class, count, etc.) and country of origin. CFIA rules address common names for fish (lobster cocktail, tomalley, lobster paste, shrimp cocktail, fish sticks, etc.), prescribed species names (one must consult “The Canadian Fish List”), how to name fish not otherwise prescribed (e.g., “solomon gundy” – hmm, that is curious) and labelling rules for shellfish. Who knew fish labelling was so complex?
With that brief tiptoe through the law aside, that leads me to my own threatened fish fraud tale. A few months back, I was shopping for, yes, fish and saw a very nice and well-priced bag of frozen king crab legs. They were big, red, shelled and very well priced. Bingo – a supermarket score. The headline claim on the bag said: “King Crab …” something-or-other (may have been “Brand” in hindsight). Way down at the bottom of the bag it described the rather less appealing ingredients as Pollock, according to Google in the “Pollachius genus” since we’re getting picky about fish names, various varieties of pressed and minced fish, etc.
Literally false claim? No. Misleading? Probably – the blaring (and ironically red as I recall) headline claim screamed king crab legs in big block letters, while the mice print down at the bottom said it was Pollock, etc. I would have said (and do in fact say when I give advertising law compliance seminars) that the general impression was misleading, it was material given the rather wide difference between Pollock and king crab. Something of a Competition Act slam dunk if anyone cared enough to challenge it. On the other hand, compliant with CFIA and Canadian fish labelling legislation? A dissertation might be required to get to the bottom of that.
In any event, will enforcement authorities take up the fish fraud mantle in Canada? I sincerely hope so. In the meantime, I’m glad I am not alone in getting hood-winked by unscrupulous fish mongers.
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