Redefining food labelling compliance rolls
Food labelling modernization entered 2017 in high gear with the Dec. 14, 2016 publication in Canada Gazette Part II of final regulations amending ingredient and nutrition labelling under the Food and Drug Regulations (FDR). These amendments alone represent significant labelling changes. They came into force that day, but were granted a five-year compliance transition period ending Dec.14, 2021.
In late 2016 Health Canada also began consultation on front-of-packaging nutrition labelling, among other initiatives that include modernization of Canada’s Food Guide, the banning of partially hydrogenated oils, elimination of certain sweetener statements on food labels, and new restrictions on advertising foods to children. In addition to this, the Canadian Food Inspection Agency (CFIA) is looking at finally publishing proposed Safe Food for Canadians Regulations in Canada Gazette Part I sometime in 2017, and has begun consultation on Phase III of its food labelling modernization initiatives. In short, basically the whole kit and caboodle of food labelling is on the butcher’s block.
The CFIA is also considering a new model in managing food labelling compliance. Manufacturers under current federal legislation such as the Food and Drugs Act (FDA) and the Safe Food for Canadians Act (once it comes into force) are ultimately responsible for ensuring that food labels are compliant with requirements and are not false or misleading. To that end, claims such as those related to nutrient content, health and organics are outlined in the regulations. The CFIA has, over the decades, been relied on to formulate guidelines on claims that are not specifically outlined in the regulations but which are subject to interpretations thereunder as to whether they may misrepresent a food. These include guidelines on “natural,” negative claims like “no preservatives,” and methods of production claims such as “raised without the use of antibiotics or hormones.” Despite the guidance provided by the CFIA, manufacturers are ultimately responsible for ensuring labels are not false or misleading. This has always been and will continue to be the case.
As part of the Phase III discussions, the CFIA is proposing a new labelling enforcement model based on the risks related to food safety, health and fraud. That model would place the agency at somewhat of a distance from complaints related to certain types of low-risk consumer value claims such as “natural,” “free range” and “local.” Instead, consumers would take greater responsibility in expressing concerns regarding label claims directly to manufacturers. The current model places the CFIA in the centre. Under the proposed model, the agency would only become involved where matters are escalated.
This new model places greater emphasis on industry to demonstrate due diligence, and on industry associations to provide compliance guidance and support. Part of the modern flavour of this model includes a greater focus on ensuring claims are properly substantiated and documented, and that relevant supporting information is accessible to consumers. Access to supporting information related to label claims could be made available online, or via technology such as SmartLabel or QR codes. Industry would be relied on to keep records of complaints and any actions taken, creating a food labelling program akin to preventative control plans related to food safety. The concept for this will likely form part of the Safe Food for Canadians Regulations that the CFIA is currently developing.
The CFIA would review the documented consumer complaints and the process controls used by manufacturers to track and respond to consumer complaints, as part of their routine inspections. Industries with higher perceived risks related to economically motivated adulteration of food and fraud would be under greater scrutiny. This model will not, however, do away with the agency’s involvement in providing guidance to industry. The CFIA will still need to be actively involved with stakeholders in developing truthful and non-misleading claims, and to support compliance goals and consistency.
The enforcement model as being discussed fits into the CFIA’s overall risk management inspection system. While placing greater emphasis on industry to ensure claims are adequately substantiated is generally positive, the danger of having the CFIA on the periphery of consumer value claims is that it may lose touch and awareness of what is going on. As the gatekeeper of food labelling integrity, its overall credibility could suffer. Despite the ambition to redefine food labelling roles, the responsibility of the CFIA is to bring balance to the views of all stakeholders. That cannot be done if its chair at the table is empty.
Gary Gnirss is a partner and president of Legal Suites Inc., specializing in regulatory software and services. Contact him at [email protected]