What’s ahead in 2021 – the latest food law analysis from the new issue of ‘Food in Canada’

For what’s new with food safety law, simulated meat products, cannabis edibles, novel foods and more, here is the latest Food in Canada food law column by Megan Radmore and William Bjornsson, associates in the Ottawa offices of Gowling WLG. “2020 is over… finally. Rather than dwell on the year we would all prefer to forget, let us shift our focus to the future, and in place of a review, let’s now look forward and preview some anticipated developments in Canadian food regulation and policy in 2021.”

Food Safety: The Canadian Food Inspection Agency (CFIA) indicated that due to the COVID-19 pandemic, it would not prioritize compliance activities associated with the July 15, 2020 “coming into force” of the Safe Food for Canadians Regulations (SFCR) for the manufactured food sector. It is unclear what CFIA’s enforcement priorities will be in 2021, so affected companies should ensure compliance with the new requirements (e.g. licensing, preventive controls and traceability), if they have not done so already. Although the CFIA implied that industry would have adequate notice of changes to its compliance and enforcement priorities, the CFIA did not make any formal changes to the regulatory transition periods. Additionally, the CFIA’s position has never precluded it from taking enforcement action to address food safety issues (e.g. recall).

Simulated meat products: We anticipate new CFIA guidance with respect to simulated meat and other plant-based products in 2021. As more Canadians incorporate alternate proteins into their diets, more plant-based protein products are appearing in the Canadian marketplace. In November 2020, the CFIA received stakeholder feedback on its Proposed Guidelines for Simulated Meat and Simulated Poultry Products (“Guidelines”). The Guidelines seek to better define simulated meat or poultry products under the Food and Drug Regulations (FDR) and the SFCR, and to provide compositional and labelling guidance. We expect to see new Guidelines, which reflect the wider range of plant-based products available to Canadians, published this year.

Cannabis edibles: Health Canada will undertake a review of the Cannabis Act by October 2021. This review has the potential to affect the regulation and production of edible cannabis products, which have been legal in Canada since October 2019. Although Health Canada will begin its work in 2021, we do not expect to know the consequences of this review until spring 2023 — a report outlining results and recommendations must be presented to Parliament within 18 months of the review’s commencement.

Supplemented foods and caffeinated energy drinks: In 2021, Health Canada will continue development of a regulatory framework for supplemented foods and caffeinated energy drinks. At this time, Health Canada only permits manufacturers to sell such products, which do not meet all of the requirements of the FDR, in accordance with the terms of a Temporary Marketing Authorization (TMA); however, all issued TMAs expire on December 31, 2021. Health Canada indicated an intention to publish the long-awaited draft framework for supplemented food regulation in Canada Gazette, Part I in 2021, so TMA holders should monitor this.

CFIA food labelling modernization: The CFIA is moving forward with the next phase of its ongoing food labelling modernization initiative in 2021; however, due to the COVID-19 pandemic, and in an expressed effort to avoid additional costs for industry, it will not implement all of the mandatory labelling amendments proposed in 2019. The adjusted scope will likely mean a delayed implementation of proposed changes to date markings and storage instruction requirements, contact information, “country of origin” declarations, emphasized ingredients (removed comma) and new legibility requirements. We will await final publication of the remaining amendments in Canada Gazette, Part II later this year.

Novel foods: We expect Health Canada to expand its published list of non-novel food determinations in 2021, an exercise that began in September 2020. Health Canada aims to have all past determinations included in the list by March 2021 and to update the list on an ongoing basis, which will provide additional clarity for food formulators and manufacturers. Health Canada is also developing regulatory guidance to provide clarity and predictability regarding the interpretation and oversight of novel products of plant breeding. It intends to publish the draft guidance online for a 60-day consultation period in January 2021. At the time of writing (early January), no such guidance has been published. While we hope this preview assists in planning for the new year, only time will tell what 2021 will bring, and whether all of these food regulatory and policy changes will be implemented.

Megan Radmore and William Bjornsson are associates in the Ottawa offices of Gowling WLG, specializing in food and drug regulatory law. Contact them at Megan.Radmore@gowlingwlg.com and William.Bjornsson@gowlingwlg.com