The evolution of food regulation

We are without doubt on the cusp of significant changes in how foods in Canada will be regulated. Amendments to the Food and Drugs Act (FDA), authorizing Health Canada to issue marketing authorizations and a greater scope related to incorporation by reference, have recently been passed. The coming into force of these provisions has, however, not yet been set. That will follow needed regulatory amendments. These will include the repeal of the infamous food additive tables in the Food and Drugs Regulations (FDR), which will be set up as a document incorporated by reference under the FDR. Similar changes will likely also be made to other parts of the FDR that are subject to constant amendments, such as in the case of vitamin, mineral and amino acid fortification. These shape-shifting changes to the FDR will likely happen sooner than many expect. Health Canada is under great pressure to keep pace with regulating foods, including the transitioning of natural health products into the food regulatory framework, and these changes spell “relief.”

Not to be left behind, the Canadian Food Inspection Agency (CFIA) has also embarked on a food regulatory renaissance project with Bill S-11, the Safe Foods for Canadians Act (SFCA). Beyond the basic but hugely significant changes that the SFCA will bring, are other changes that are likely to follow. At this time the SFCA has not been passed. Regulations can only happen after the Act becomes law. The following is thus just a bit of speculation on the shade of colours that the currently blank regulatory canvas might include.

One of the more significant consequential amendments of Bill S-11 is essentially the removal of food from the Consumer Packaging and Labelling Act and Consumer Packaging and Labelling Regulations (CPLA and CPLR). This creates a huge vacuum in view of how the CPLA and CPLR currently govern foods. For example, the CPLA requires all consumer foods to be labelled with a metric net content declaration. While certain commodities in interprovincial and international trade are currently subject to the CFIA’s legislation also requiring a net content declaration, it will be interesting to see how the legislation will unfold to provide continuity to such labelling for all food commodities. Conceivably, net content declarations and tolerances related to matters under the CPLR can be incorporated by reference under regulations to be made under the SFCA.

The CPLA and CPLR also require consumer packaged foods to include a statement on the label that it contains artificial flavour, where that label depicts an image of a fruit, vegetable or meat represented by an artificial, imitation or simulated flavour. The CFIA is currently recruiting input on its Guidelines for Highlighted Ingredients and Flavours. Is the CFIA thinking of incorporating these guidelines under regulations to be made under the SFCA? The current CPLR is limited to situations triggered by a pictorial representation. These current regulations no longer adequately meet contemporary expectations. The CFIA’s guidelines are far broader in their view as to what may or may not be misleading labelling representations, be they pictorial or textural.

Country of origin labelling for food is all over the map. Even the determination of the origin of a food varies. This stems from the multitudes of current acts and regulations that govern foods, and their interpretations on country of origin declarations. The CPLR also captures the declaration of the country of origin for foods not otherwise covered by other CFIA legislation. This too is limited and hinged to a large degree on a label that declares a Canadian dealer name and address where the food product is imported. We have all seen the generic version of this on labels expressed as “Imported by.” In the vacuum left by the removal of food from the CPLA, it’s conceivable that the CFIA will need to address country of origin labelling, and that could be the creation of distinct country of origin labelling regulations under the SFCA.

The creation of the SFCA will bring with it an opportunity for the CFIA not only to update and consolidate existing regulations, but also to have a framework to include new regulations that will provide uniformity to food labelling regardless of commodity type. What we can expect is both the CFIA and Health Canada exercising the expanded provisions for incorporation by reference. Managing compliance might become a bit more of a challenge, but having both agencies being more responsive to changes is clearly a benefit for government, consumers and industry.

Gary Gnirss is a partner and president of Legal Suites Inc., specializing in regulatory software and services. Contact him at president@legalsuites.com