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How Canada is streamlining the food supply chain

Wednesday, April 29, 2020 @ 8:51 AM | By Bryan Walker, Geoff Poelman and John Greiss

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Self-isolation measures and COVID-19 have had a significant impact on the ability of Canada’s grocery stores to keep products on their shelves. In response, the Canadian Food Inspection Agency (CFIA) is suspending a number of low-risk compliance enforcement activities in an effort to alleviate supply disruptions and avoid food waste.

Health Canada also issued an Interim Order on March 30, 2020, which is aimed at addressing critical supply issues, including the exceptional importation and sale of foods for a special dietary purpose (FSDP) which do not fully comply with Canadian requirements.

Food regulation timelines suspended for manufactured foods

The Safe Food for Canadians Regulation (SFCR) came into force on Jan. 15, 2019, and introduced three significant requirements on the food industry: licensing, preventative controls and traceability. However, those in the manufactured food industry (e.g. snack foods, beverages, oils, nuts, coffee, baked goods, cereals, and pastas) were granted an 18-month transition period to comply with these requirements (i.e. July 15, 2020).

In order to prevent delays in the food supply chain, the CFIA has advised that it will not prioritize compliance with SFCR for manufactured foods at this time. As a result, importers and domestic manufacturers who are unable to bring themselves into compliance with the SFCR by July 15, 2020, will not have their operations disrupted if they are unable to meet this deadline. The CFIA will, however, continue to ensure food safety through recalls, seizures or detainment of food products when necessary.

Suspension of labelling requirements

As restaurant and hotel services are curtailed, a significant amount of food produced for these businesses has been “stuck” and in danger of going to waste. As a general rule, foodservice products are not subject to the same labelling requirements as prepackaged food sold to consumers, which has prevented the repurposing of these products for retail sale to consumers.

To remedy this issue, effective April 6, the CFIA suspended labelling and sizing requirements (including a nutrition facts table) for foodservice products that do not impact food safety. However, the following core labelling requirements must be met:

  • Meets Canadian food safety requirements;
  • Not labelled in a manner that is misleading or deceptive; and
  • The label includes specific information (common name, ingredients, allergen declaration; name and contact information, net quantity, lot code identifier, storage instructions, best-before date, applicable directions for use, and food safety statements for meat or fish).

To ease compliance, missing information may accompany the product in any format (such as a sticker), so long as it is available to the ultimate consumer. Further, only one official language is required on the package if the other is available upon request.

The CFIA will also not object to the reimportation of food products made and packaged in Canada for foodservice use that are labelled according to U.S. requirements. These products may be sold in Canada without any labelling changes if they meet Canadian food safety requirements, are not labelled in a misleading or deceptive manner, and there is proof of Canadian export certification.

The above applies to foodservice foods packaged as of April 6, 2020, or packaged and labelled within 90 days of that date. Thereafter, all labelling requirements for retail food will again apply.

Interim order for exceptional importation of FSDP

The Interim Order permits Health Canada and the CFIA to address critical shortages of FSDP by allowing the importation and sale of FSDP that do not fully comply with Canadian requirements but are otherwise approved by a foreign regulatory authority with standards similar to Canada’s.

Importers requesting to import FSDP in short supply may apply to have foreign products designated and listed on the List of Foods for a Special Dietary Purpose for Exceptional Importation and Sale (thereby becoming a designated FSDP). Once added, importers are required to notify the minister five calendar days before the FSDP is imported.

Foods that may be eligible to become a designated FSDP include foods for special dietary use (e.g., meal replacements, nutritional supplements), human milk substitutes (infant formula), and human milk fortifiers (foods intended to be added to human milk to increase its nutritional value).

Designated FSDP are exempt from certain Food and Drugs Act restrictions relating to the use or presence of substances or materials as well as certain labelling requirements. However, upon selling the product, the importer must ensure that the following information is available in English and French:

  • The special dietary purpose;
  • Applicable warnings;
  • Directions for preparation, use and storage;
  • Expiration date;
  • Lot number; and
  • Food ingredients list and priority allergens.

The Interim Order is effective for one year, or until such a time that the Interim Order is repealed.

Bryan Walker is a partner at Norton Rose Fulbright and a litigator whose practice encompasses a broad range of commercial litigation matters with an emphasis on oil and gas litigation, construction law and insurance defence. Geoff Poelman is a senior associate and practises in the litigation group with a focus on complex commercial litigation within the energy industry, construction law and insurance coverage and defence. John Greiss is a lawyer in the intellectual property group. His practice focuses on providing regulatory and strategic advice to companies operating in Health Canada-regulated industries.

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