CANADA JOINS U.S. IN FOOD-SAFETY MODERNIZATION

By Josh Long

CANADA — Canada's food law regime is about to undergo a radical transformation thanks to the Safe Food for Canadians Act.

It not only consolidates the authorities of several different statutes, the law provides better control over imports, strengthens food traceability and allows for higher penalties governing activities that endanger consumers. Agriculture Minister Gerry Ritz noted the law gives the Canadian Food Inspection Agency (CFIA) modernized tools to increase industry compliance and better protect consumers.

The Safe Food for Canadians Act (Act) is significant in that it represents the first major changes to food legislation in decades, similar to the Food Safety Modernization Act in the United States, said Albert Chambers, executive director of the Canadian Supply Chain Food Safety Coalition.

"The new Safe Food for Canadians Act provides that same opportunity to modernize the Canadian legislative and regulatory environment," Chambers said.

The Act also consolidates the authorities of the Fish Inspection Act, the Canada Agricultural Products Act, the Meat Inspection Act, and the food provisions of the Consumer Packaging and Labeling Act. The Food and Drugs Act and its regulations will remain in effect, according to attorney Martha Healey, a partner with Norton Rose Canada.

"If it all works together, this could represent a very streamlined approach to food regulation in Canada," she said.

Changes aren't expected overnight. The CFIA said current legislation and regulations will remain in effect until it promulgates new regulations, and that process is expected to take two years, according to industry sources.

"The CFIA will be completing an extensive and comprehensive review of the current regulations and working with affected stakeholders to develop the new regulations as quickly as possible," CFIA told FOOD PRODUCT DESIGN.

Licensing of Importers

Ronald Doering, a veteran lawyer who served as president of CFIA, said the law gives the agency authority to require all food importers to be licensed. This will grant the government access to certain information such as the name, phone number and address of an importer, potentially helping to locate the source or sources of a foodborne illness. Canada imports more than 6,000 truckloads of food every day, said Doering, counsel in the Ottawa office of Gowlings, which is one of the largest law firms in Canada.

CFIA also observed the Act clearly bars the entry of potentially unsafe food commodities into Canada and gives the agency the power to require that regulated entities implement traceability systems in order to track food through all stages of production, processing and distribution.

Robert de Valk, executive secretary of the Canadian Association of Regulated Importers, said the Act will have a "very marginal" impact on the association's members — meat and poultry importers — because they are already highly regulated. But he agreed other food importers will be affected.  

"The products that are non meat and (non) poultry, those importers are not currently registered with the government in any shape or form, at least most of them," he observed. "They also will come on the radar screen in terms of do you have a food safety plan in place as an importer, and if the product for instance is judged to be a hazard, can you deal with that?"

Certification of Export-Bound Food

The Act also gives the CFIA authority to certify exports, confirming food bound for other countries meets the requirements of that nation, de Valk said.

"This Act kind of fills any holes that were there on this side and makes it legal for inspectors to act on behalf of foreign governments to ensure their requirements are met before a certificate is signed," he noted. "There was a bit of … a legal hole of whether the inspectors could require such things."

Certification of food for export, CFIA pointed out, also is a component of the 2011 law that modernized U.S. food law: the Food Safety Modernization Act.

Expanded Recall Authority

The Act also results in expanded recall authority. Healey said Canada's Minister of Agriculture and Agri-Food already has the authority to "order a recall where the Minister reasonably believes that a food poses a risk to public, animal or plant health."

She said the new law permits regulations that would require companies to report a recall or food safety hazard within a short timeframe, an obligation that the attorney expects will be imposed. "I suspect the requirement will be applicable to food manufacturers, retailers and importers, possibly also distributors," noted Healey, who has expertise in federally regulated matters.

Cooperation between Canada and U.S.

CFIA said the law will help align Canada's food safety system with trading partners such as the United States.

"Canada and the US will will work to align regulatory requirements during the development of regulations and guidances with respect to the implementation of the US [Food Safety Modernization Act] and the Canadian Safe Food for Canadians Act in in order to pro-actively identify and mitigate health and safety issues in an effort to collectively strengthen food safety in both countries," the agency told FOOD PRODUCT DESIGN.

Reform in the Works for Years

Canadians have been discussing food reform for many years, but previous attempts to radically modernize the food regime have failed. Not so with the Safe Food for Canadians Act, which sailed through the House of Commons and Senate over the fall and received Royal Assent on Nov. 22.

The Act can be traced back to a number of developments, the CFIA observed, including the government's Food and Consumer Safety Action Plan and the so-called "Weatherill Report", which recommended modernization of food safety legislation following the 2008 Listeriosis outbreak that was traced back to Maple Leaf Foods and left 22 people dead.

"These individuals, mostly elderly and at risk of infections, put their faith in Canada's food safety system, expecting it to protect them. Their faith, and that of all Canadians, was shaken," the investigator Sheila Weatherill wrote in the introduction to her immense report. "For all the effort of all involved, the food safety system let them down."

Onus on Industry

After investigating the outbreak, Weatherill identified a number of problems in Canada's food safety system, including:

• an inadequate focus on food safety among senior management in the public and private sectors
• insufficient advance planning that left individuals unprepared during the outbreak
• an absence of urgency at the outset of the crisis
• and a need for improved communications to members of groups at increased risk for Listeriosis, health professionals and the general public.

In spite of the groundbreaking new law and future regulations, Doering asserts the burden still predominantly falls on industry rather than government to maintain safe food practices. He points out, for instance, that Canada imports food from more than 100 countries, and that Canadian regulators have the resources to inspect just a small portion of the facilities supplying food to his country.

"If you audit them Tuesday, that doesn't tell you what would happen in that corrupt country on Wednesday," he remarked.

Still, Doering takes the view that the government will effectively intervene when there is a food safety issue.

"If you have a problem we are going to be really good at reacting," he said. "We are going to come in real hard and you are going to wish you didn't have this problem…."

Josh Long is Legal and Regulatory Editor with VIRGO's Health & Nutrition Network. He can be reached atjlong@vpico.com .

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