The World Health Organization designated alcohol as a “Class 1 carcinogen” in 1988. Despite accounting for approximately 17,000 deaths annually in Canada, alcohol is not subject to federal, provincial or territorial health information or warning label legislation.
While the U.S. Surgeon General’s call earlier this year for cancer warnings on alcohol products garnered Canadian media attention, the same cannot be said for the demise roughly three weeks later of the 10th in a four-decade series of federal private members’ bills to enact similar legislation.
Even less ambitious measures face fierce opposition. When the Yukon Liquor Corporation attached enhanced labels, including a cancer warning, to the alcohol products at one of its stores, as part of a Health Canada study, alcohol industry representatives condemned the study, publicly questioned the lead researcher’s integrity, and threatened to sue.
Yukon suspended the study, dropped the cancer warning and sought “common ground” with the industry. While publicly reaffirming the study’s merits, the government stated that it could not afford to fight the industry and called in vain for Parliament to take up the issue. Ironically, the Liquor Corporation was potentially vulnerable to civil liability, not for including a cancer warning, but rather for failing to adequately inform women of the risks of fetal alcohol spectrum disorder (FASD).
FASD, a broad diagnostic term, includes three related diagnoses, commonly listed in descending order of severity as Fetal Alcohol Syndrome (FAS), Partial Fetal Alcohol Syndrome (pFAS), and Alcohol-Related Neurodevelopmental Disorder (ARND). All three diagnoses are associated with lifelong cognitive and behavioural disabilities, but only FAS and pFAS are characterized by facial dysmorphology and growth deficiencies. Unlike breast and other cancers, heart disease, stroke, and cirrhosis, FASD results exclusively from in utero alcohol exposure.
The prevalence of FASD is estimated to be “at least 4%,” making it more common among Canadian infants than autism, cerebral palsy, Down Syndrome, and other neurodevelopmental disabilities combined. An infant’s likelihood of being born with FASD and its severity depends on the total amount of alcohol consumed during the pregnancy, when it was consumed, the frequency of binge drinking (i.e. 4 or more standard drinks on a single occasion), and the mother’s genetic makeup, age and other variables. Facial dysmorphology and the most profound cognitive/behavioural disabilities are associated with binge drinking during weeks three to eight post-conception, often before a woman realizes that she is pregnant.
The Supreme Court of Canada has repeatedly held that both manufacturers and suppliers have a broad common law duty to inform consumers of the risks inherent in the use of their products. Given their monopolies over the wholesale alcohol market within their boundaries, the provincial and territorial liquor authorities are alcohol suppliers. As noted in one Supreme Court of Canada case: “it cannot be said that requiring manufacturers to be forthright about the risks inherent in the use of their product imposes an onerous burden [on them].” These common law principles apply throughout Canada, apart from Québec where liability is based on the even more expansive principles of the Civil Code.
While there is no duty to inform consumers of obvious or well-known risks, these situations must be distinguished from those in which consumers have only a vague understanding of the nature, probability and severity of the risks, or are aware of only some of the risks.
Most women in Canada have heard of FASD and understand that they should limit their drinking during pregnancy. However, many women are unaware that their fetus can suffer profound, lifelong alcohol-related harm before they realize that they are pregnant. As one U.K. commentator noted: “current public health advice to abstain from alcohol throughout pregnancy… overlooks two important reproductive realities for women: almost half of pregnancies in the UK are unplanned [as in Canada]; and there is a period of time at the start of pregnancy … [on average halfway through the first trimester] when a woman is unaware that she is pregnant.” Similarly, many women may not realize that FASD is the leading preventable cause of birth defects and developmental delay in Canada or that FASD may result from moderate consumption.
The Canadian courts have imposed high standards of disclosure on all products intended for human consumption. If the risks are serious, a vague, general or blanket warning will be insufficient. As the Ontario Court of Appeal stated: “Once a duty to warn is recognized, … the warning must be adequate … communicated clearly and understandably in a manner calculated to inform the user of the nature of the risk and the extent of the danger; it should be in terms commensurate with the gravity of the potential hazard, and it should not be neutralized or negated by collateral efforts on the part of the manufacturer.”
Negligence principles established decades ago provide a basis for suing Canadian alcohol manufacturers and government suppliers for failing to adequately inform women of the risks of FASD. Yet, to our knowledge, no such suit has been brought. No doubt, complex causation and evidentiary issues will arise, particularly in claims involving subtle FASD-related disabilities. However, the major barrier in most other cases does not appear to be the governing legal principles, but rather the challenges faced in suing multi-billion-dollar defendants.
The lack of FASD suits is reminiscent of the situation with the tobacco industry, which evaded liability for almost 50 years even though smoking’s dire impact was well known since the mid-1960s. In our view, the Canadian alcohol industry is on a similar trajectory and, like the tobacco industry, will be sued and held liable. Granted, alcohol labelling legislation would provide a far faster, less costly and more certain path forward than litigation. However, it may take being sued to ensure that alcohol producers and government suppliers finally provide women with the information they need to make truly informed decisions about alcohol consumption.
Robert Solomon, Distinguished University Professor,
Emeritus, Faculty of Law, Western University; and
Elyse Kim, JD Candidate, 2027, Faculty of Law,
University of Victoria.