Case Study: Mustard Company
A mustard company with operations in Canada and worldwide is the subsidiary of a large European-based global food and consumer products corporation. Both the Canadian head office of this diversified company and its US office were involved in this matter.
Among the most prominent of the Company’s products is a popular brand of yellow prepared mustard. One issue that faced the Company were the restrictions in Canada on the size of containers for prepared mustard. The Company had been trying for years to have its Canadian industry association (i.e. the group that represents its industry to government) take up the issue. Not all processed food products are subject to these requirements (contained in the Processed Products Regulations under the Canadian Agricultural Products Act, know as the CAP Act), but mustard is.
Under CAP Act requirements, prepared mustard could be sold in Canada in only a limited number of sizes, none of which were the same size as those used in the US where the product was manufactured. The Company had determined that if it could market in Canada using the same size containers as it did elsewhere (while still meeting Canadian labeling standards), the overall profitability of the product line in Canada could be improved.
Previous attempts by the Company had met with passive resistance from the industry association. The response from government was non-committal. The Company was told the change they proposed might be considered when the regulations were next due for review, in several years’ time. But the view was expressed that the likelihood of success was slim.
The Engagement Process
The Company and its consultants in Ottawa determined that a new approach was necessary in order to address this issue and counter the seeming disinterest of the government. The process began with a detailed assessment of how the regulations had evolved over the years, and why such regulations were enacted in the first place. The Company also examined the overall political and public policy environment around the issue of standard container sizes.
A “strategic inquiry” process that was undertaken involving identification of, and contact with, those elected and unelected officials in relevant federal ministries (Agriculture Canada, Canadian Food Inspection Agency, the Department of Foreign Affairs and International Trade, the Department of Justice and the Privy Council Office). This involved exploring the five dimensions of “strategic inquiry”:
- public-policy context,
- precedent, and
Much was learned through this process but there were certain other types of information – especially background on the evolution of the standard container size regulations and the various related trade and industry policies – that officials either were not aware of or were reluctant to discuss. Some suggested the Company should submit an Access to Information (ATI) request to the Government. Because, in certain circumstances, some in government consider an ATI request as a hostile act, the Company prepared such a request but had it submitted through a third-party researcher.
The Company learned a great deal from its strategic inquiry process and the ATI request, which helped greatly in both crafting its “ask” of government and establishing its overall strategy for advancing their proposition. As a result of this process, the Company opted not to pursue its original plan (to call for an end to container size regulations) and instead to ask for a specific regulatory exemption for mustard.
The change the Company was seeking did not require legislative action, but could be done through CAP Act regulatory measures approved by Cabinet. Regulatory change involves, among other things, a stakeholders consultations process and the production of a Regulatory Impact Analysis Statement (RIAS) – the key instrument involved in making changes to federal regulation. Normally RIAS documents are prepared by public servants, but since the issue was low government priority (and no other stakeholders had yet asked for the change), there was little cause for government to undertake the process.
The Company, and its consultants, launched its own stakeholder consultations initiative, closely following the protocols used by the government. It commissioned a list of manufacturers, mustard seed producer organizations and other stakeholders. All were sent a copy of the Company’s draft document, essentially replicating the format and general content of a RIAS that the Government has previously used for similar issues (the forms are publicly available online).
The document framed the issue, set out some options (including status quo), and described and assessed implications of each. The stakeholders’ package also included a “ballot” on which stakeholders could indicate whether they approved or were opposed to the elimination of standard container sizes for prepared mustard. Pre-addressed, postage-paid envelopes were provided so that the “ballots” could be sent to both the Government of Canada and the Company's representatives.
The results of the canvas were clear – the vast majority of stakeholders indicated they either approved of the change or didn't care. Only one organization opposed the change and it was the Company’s main competitor in Canada.
Throughout the process, federal officials and the Minister’s office were regularly briefed, though there was a particular effort by the Company to not “politicize” the issue by raising it with Opposition MPs. The Company’s objective was to have this issue treated by Government as a small, technical change to regulations that did not have any wider impact or significance.
All the steps normally associated with such a regulatory change had been followed (stakeholder consultation; no objection from other parts of government etc.), and the Company’s proposal was endorsed by a substantial majority of the country’s prepared mustard manufacturers. As such, the change was was accepted by the Minister of Agriculture who subsequently submitted the proposed change to the Treasury Board Committee of Cabinet, which gave final approval.
There are a number of lessons that can be learned from the constructive engagement process undertaken by the Company on the mustard issue, including the importance of:
Carefully considering – and reconsidering – your “ask” in light of what one learns as part of a “strategic inquiry” process. Your first instincts are likely to change as you learn more about the issue from the perspective of those in government and other stakeholders.
Understanding how the relevant decisions get made and by whom. The timeframes involved and the linkages between government agencies are often not obvious.
Using Access to Information (ATI) requests effectively. As a ministry’s institutional memory fades with transfers and retirements, fewer people understand the background on many issues. ATIs can be a means to dig deeper into the past developments in your policy area.
Undertaking stakeholder engagement. Many government decisions require (statutorily or politically) some manner of stakeholder consultation. Government may not be willing to lead it, so it may be necessary to do it yourself.
Preparing documentation (DIY Public Policy) that reflects how governments make decisions. Certain documents (e.g. RIAS) need to be prepared, if not by government, then by at least someone outside government who knows what is needed to move the paper and the process.
Avoiding needless politicizing of the issue. Many decisions in government are made by elected officials (i.e. Ministers) who usually rely on the advice of their officials in the bureaucracy and the Minister’s political staff, and so don’t require any party politics to address.