Renewed promise for food safety in Canada

In Canada, the past few months have seen more proposed changes to the food law framework than we have ever seen.

Most recently, on June 7, 2012, the federal government introduced the Safe Food for Canadians Act in the Senate. The Bill is wide ranging in scope, and would consolidate and revamp four existing pieces of legislation: the Meat Inspection Act, the Canadian Agricultural Products Act, and the Fish Inspection Act, as well as the food-related provisions of the Consumer Packaging and Labelling Act. It is aimed at modernizing processes and obligations on regulated parties, but is also aimed at ensuring that the government has the appropriate tools to effectively manage food safety issues. While the legislation addresses, on its face, a broad range of topics, a substantial portion of the system will be in regulations yet to be developed. That said, the significant elements of the Bill include:

–       Providing penalties up to $5 million for contravening the law, and for knowingly or recklessly causing a risk of injury to human health, a fine at the discretion of the court;

–       Prohibiting the sale of foods that have been recalled;

–       Providing authority to make regulations respecting the traceability of food commodities; and

–       Providing authority to make regulations to require licensing of food importers and exporters.

The stated aim of the legislation is consumer protection – to make our food supply system even safer and stronger than it is today. For manufacturers, the legislation also aims to standardize inspection and enforcement across food products, which could be an improvement over the current system. Hopefully, a more risk-based approach to enforcement will be adopted by the agency. Too often we have seen differences in enforcement and application of rules. In a consultation paper released days before the legislative changes were announced, the Canadian Food Inspection Agency requested input on an inspection model based on residual risk and consideration of the size and complexity of operations. This would be supported by the proposed legislation, under which common inspection staff would be responsible for all food products, rather than being divided along product lines as currently exists.

To get a Bill of this magnitude through from passage to implementation is no small feat. Once the Bill passes, regulations will need to be developed and consulted upon prior to implementation. There are significant portions of the Bill that will require regulatory change, a process that takes years. Yet, there appears to be significant commitment to move forward with the new rules, and consultations are already underway.

The impetus for change is partly driven by domestic issues that have arisen over food safety in recent years (including the 2008 listeriosis outbreak), but no doubt also driven by international pressures to ensure food safety, and a likely recognition that without implementing similar rules, Canada may lose out in trade if its exports are not acceptable to the U.S. or other countries who may implement similar licensing requirements and controls for their food supply. The U.S. has already taken steps to modernize its legislation, including implementing export and import controls. Whether Canada and the U.S. will take a collaborative approach, perhaps agreeing to recognize each other’s food safety assessments, remains to be seen. We have already seen movement by Canada to remove effective trade barriers by the announcement earlier this year of the intended repeal of regulations that require certain products to be available in standardized container sizes – viewed as a barrier to trade by other countries.

The balancing of the objectives of enhancing food safety for Canadians, while not unduly and negatively affecting domestic and international producers, will be a delicate one.

Adrienne Blanchard is a partner and vice-chair (Regulatory) for Gowlings’ Life Sciences Industry Group.