Focus on Food Safety: Uncovering the import inspection process

More than 30 energy drink brands have been recalled by the Canadian Food Inspection Agency (CFIA) for a range of non-compliance, including exceeding the limit of permitted caffeine, not having precautionary statements regarding health impact of consumption, and labelling not meeting bilingual and Nutrition Facts standards required for sale in Canada. Thirty brands at the same time are a lot of products, which prompts questions about import inspection.

According to the World Bank’s World Integrated Trade Solution data from 2021, Canada imported over $22 billion worth of food products. Given the sheer volume, it’s just not possible to look at every product entering the country.

CFIA guidelines

Many products receive offshore pre-inspection, which is done within the exporting country, and not by CFIA. This is in place to reduce the number of rejected shipments in transit and at the border. Import compliance is first verified even before product leaves the exporter’s loading dock. Importers are required to file documentation with CFIA’s Automated Import Reference Service. This system identifies regulations that are necessary for a vast range of commodities and processed products. It also provides Harmonized System codes for statistics, trade, and taxation purposes. Documentation is prepared to accompany the shipment confirming regulations have been met in the receiving country. Depending on the product and the exporting country, in some cases, product is precleared at the point of export, and therefore subject to very low re-inspection rates on arrival in Canada. This occurs mostly with highly trusted countries of export, such as the United States, and for low-risk products like shelf stable and canned goods.

Many shipments are visually screened by CFIA upon arrival in Canada to ensure the contents are matching the bills of lading, and that they comply with Canadian regulations. Due to the sheer volume of foods, it is impossible to do a full inspection on every container. According to the CFIA Blueprint for Imports Guidance, between five and eight per cent of shipments are manually inspected, and the rest by automation. Manual inspection could imply a rapid visual inspection, or more rarely, an organoleptic inspection with full evaluation of product and packaging. This all suggests there is a realistic potential for non-compliant product to get through the system.

While it’s not likely the case in the caffeinated sports beverage case, there have been many incidents where individuals use their personal exemption for importing products, and bring in small quantities, which they then sell at small-scale retail stores or online. There are also importers who play the risk, anticipating that their product will be automatically evaluated on arrival at the border, rather than getting a full inspection.

What occurred with the non-compliant energy drinks is an element of tort law, where there was a breach of regulations. Within tort, negligence happens when a company makes a mistake or omission in compliance, but otherwise, has the plan of doing right within the regulatory system. Being non-compliant with full knowledge that they’re circumventing regulations is breaching the regulation with intent and has a different set of penalties in tort law. The import system has many prompts and reminders regarding regulations, such as labelling, composition, permitted and non-permitted ingredients, language of labels, and Nutrition Facts requirements, suggesting that this particular case of non-compliance is not a matter of negligence.

Course correction

When companies are found in non-compliance, usually corrective action is the first step from CFIA. This reflects on a continuous improvement mindset that most non-compliance is negligence, where a company made a mistake or omission within a complex regulatory system but is otherwise demonstrating commitment to good standards of compliance. When non-compliance with intent occurs, establishments can be subject to a range of penalties. This can include license suspensions or cancellations or revocation of certifications, such as organic. In some other cases, annotated monetary penalties may be applied, which are a form of regulatory fine. In the most severe cases, criminal charges can be laid against establishments and the management for intentionally disregarding regulations.

At the point of publication, no fines or penalties have been published for this incident. However, CFIA is known for doing detailed enforcement proceedings, which take time. Time will tell if this was a case of massive negligence, or a calculated risk done with intent to circumvent regulations.

Dr. Amy Proulx is professor and academic program co-ordinator for the Culinary Innovation and Food Technology programs at Niagara College, Ont. She can be reached at aproulx@niagaracollege.ca.