[co-author: Eric Saragosa, Summer Law Student]
In her report on the 2008 Canadian listeriosis outbreak, Independent Investigator Sheila Weatherill highlighted the need for “substantial consolidation and modernization” of the legislative and regulatory framework governing food safety. The report cited the increase in Canada-wide and globalized production and distribution of food as challenges facing the country’s food safety system. The federal government responded with the adoption of the Safe Food for Canadians Act (the Act) in 2012 and opened consultation with industry stakeholders beginning in 2013. Along the way, Canadian food businesses have been given glimpses of what the new regime would entail in the form of draft regulations and action plans.
Last month, the details of the regulatory requirements finally came into focus with the release of the Safe Food for Canadians Regulations (the Regulations), along with an order fixing January 15, 2019, as the coming into effect date for both the Act and Regulations. These requirements are built around three key elements of the Safe Food for Canadians framework:
Preventive controls; and
Timelines for compliance with each of these requirements vary based on a business’s size and activities and the types of food at issue.
While some aspects of the regulatory framework are entirely new, others will be familiar to certain sectors of the food industry. This is because the Act and Regulations constitute, in part, a consolidation of the responsibilities previously delegated to the Minister of Agriculture and Agri-Food (Minister) and the Canadian Food Inspection Agency (CFIA) under the Fish Inspection Act, the Meat Inspection Act, the Canadian Agricultural Products Act and the Consumer Packaging and Labelling Act. However, businesses should be aware that many of these requirements now apply to a wider range of food products and trade activities.
In addition to enhancing the safety of food in Canada, the CFIA intends to maintain a list of businesses that are in good standing, to facilitate U.S.-based food importers meeting the requirements of their Food Safety Modernization Act without having to conduct a full verification of Canadian businesses.
The Regulations mandate licences for businesses conducting any of the following activities:
Manufacturing, processing, treating, preserving, grading, packaging or labelling food to be exported or sent across provincial or territorial borders;
Exporting food, even if not preparing the food, where an export certificate is required;
Slaughtering food animals for meat products to be exported or sent across provincial or territorial borders; and
Storing and handling an imported meat product for inspection by the CFIA.
Notable activities that are exempt from the licensing requirement include retailing, storing and transporting, as well as activities associated with food additives, alcoholic beverages and the growing and harvesting of fresh fruits and vegetables.
Licences under the outgoing regimes will continue to be valid if they expire after January 15, 2019, provided that the licences indicate that they were issued under the Act. These licences can be renewed until the new regime licences become available. The online application process for Safe Food for Canadians licences will open before January 15, 2019, though the CFIA has yet to establish a launch date.
2. Preventive controls
The preventive control requirements detailed in the Regulations apply to:
Businesses licensed to manufacture, process, treat, preserve, grade, package or label food;
Businesses licensed to store and handle imported meat for inspection;
Businesses licensed to slaughter animals;
Businesses that grow or harvest fresh fruits or vegetables; and
Businesses that handle fish in a conveyance.
The preventive control requirements target a range of risk factors, from biological, chemical and physical hazards, to the condition of establishments and equipment, to employee competence and hygiene.
Businesses licensed to import food are not themselves subject to the full range of preventive controls, but must ensure that the food they import has been subject to at least the same level of protection mandated by the Regulations.
Businesses must develop a preventive control plan – a written document that identifies risk factors, describes critical control points and critical limits for these factors, and outlines procedures for monitoring critical control points and taking corrective action. Preventive control plans also extend to measures for ensuring that prepackaged products are appropriately labelled and graded, and that the packages display, for example, the nutritional information content mandated by the Food and Drug Regulations.
Very significantly, the Regulations also impose new investigation, notification, complaint and recall requirements. For instance, businesses must immediately investigate suspected risks of injury to human health and, where the investigation substantiates these risks, immediately notify the Minister and take action to mitigate. Businesses must also conduct a recall simulation at least annually and immediately notify the Minister in the event of a recall.
The traceability requirements introduced by the Regulations apply to all businesses that are subject to licensing, as well as retailers, businesses sending or transporting food across provincial and territorial borders, and businesses growing fresh fruits or vegetables.
Businesses providing food to another person must label it with the food’s common name, a lot code or other unique identifier, and the provider’s name and principal place of business. Businesses must also keep records tracking from whom it receives food products and to whom it supplies food products. Finally, the documents must specify any food commodity the business may have incorporated into the food and, if applicable, information as to who provided the food commodity.
Certain exceptions apply to retailers, including that retailers do not need to document the details of their transactions with consumers.
4. Timelines for compliance
The dates by which a business must comply with the requirements depend on the type of food, the size of the business and whether the business is engaged in interprovincial trade, import, export or retail.
The types of food are broken down into several groupings:
Dairy products, eggs, processed egg products, and processed fruit or vegetable products;
Meat products and food animals;
Fresh fruit or vegetables;
Honey and maple products;
Unprocessed food used as grain, oil, pulse, sugar or beverages;
Food additives and alcoholic beverages; and
All other food.
The dates for compliance are as early as the coming into effect of the Act and Regulations on January 15, 2019, and as late as July 16, 2021. Further details are available on the CFIA’s website.
5. Implications for U.S. importers of Canadian food
Under the U.S. Food Safety Modernization Act, importers of food to the U.S. are required to implement a Foreign Supplier Verification Program, to ensure that imported food is subject to the same level of protection as domestic food. Notably, U.S. importers must ensure that their foreign suppliers have procedures in place that are similar to preventive control regulations in the U.S.
As part of the implementation of the Regulations, the CFIA will maintain a list of businesses it considers to be in good standing. In order to be included on the list, a business must be licensed, must have a preventive control plan in place and must keep traceability documents. The list will be publicly available, including to the U.S. Food and Drug Administration and U.S. importers.
In light of the 2016 Food Safety Systems Recognition Arrangement between the U.S. Food and Drug Administration, the CFIA and Health Canada, in which the participants determined that the food safety systems in Canada and the U.S. provided similar protection, this list is intended to provide U.S. importers with assurances that a Canadian food business is conducting its activities according to appropriate safety standards. For products within the scope of the Arrangement, this means U.S. importers may be able to refer to the list instead of independently verifying that Canadian food businesses meet certain standards, which will be an incentive for Canadian businesses who export to the U.S. to be licensed under the Safe Food for Canadians Act even before legally required.
With the introduction of new and widely applicable licensing, preventive control and traceability requirements, the Canadian government has set out to improve food safety by focusing both on risk prevention and faster removal of unsafe food when corrective action is required. In addition to protecting Canadian consumers, these new requirements should help align the domestic food industry with international safety standards, increasing trade opportunities.
Smart & Biggar will be closely monitoring the implementation of the new regulatory framework, and will provide timely updates as this matter unfolds.