The Safe Food for Canadians Act (the “SFCA”) and the Safe Food for Canadians Regulations (the “SFCR”) came into force on January 15, 2019. Together, they create a framework of standards and requirements to ensure that food imported into Canada is safe.[1] These standards and requirements apply to all persons, including foreign food businesses, that currently export any food commodity into Canada. [2]

In order for a foreign food businesses to be able to export food[3] into Canada, it must either have:

  1. A fixed place of business in Canada from which they carry on business related to the food; or
  2. A fixed place of business in their own country from which they carry on business related to the food as per the following requirements:

a) If the food is meat or raw or live shellfish, it must come from an inspection system that the Minister recognizes as providing the same level of protection as the SFCR; OR

b) If for any other particular food besides a meat product or live or raw shellfish, it must come from a system that the Minister recognizes as providing the same level of protection in relation to that food as the SFCR; AND

c) the food must be imported directly from that recognized foreign country. [4]

The export regulatory scheme can be illustrated as follows:

Non-resident Importers

Non-resident Importers (“NRIs”) are persons who import food into Canada and that have a fixed place of business from which they carry on the business pertaining to the imported food in a country other than Canada. NRIs are allowed to obtain a Safe Food for Canadians licence under limited conditions.

To obtain a licence as a NRI, the NRI’s fixed place of business must be in a country that the Canadian Food Inspection Agency (CFIA) has recognized as having a food safety system that provides at least the same level of protection as that of the SFCA and SFCR. Currently, except for meat and shellfish products, only the United States has such a system.

Failure to Comply

SFCR licenses can be suspended:

  1. for failure to comply with the Safe Food for Canadians Act, the Food and Drugs Act and their related regulations;
  2. for default of payment of any fee related to the license; or
  3. if the risk of injury to the public may result from continuing to conduct the licensed food activity.

Additionally, failure to comply with requirements may result in the rejection of shipments at the border, seizure of offending food products, stiff penalties ranging from fines of $250,000 – $5,000,000 and/or imprisonment of 6 months to 5 years for each offence.[5]

Conclusion

The new licensing regime under the SFCA has created considerable uncertainty as to how current exporters of food to Canada can set up compliant operations in this country.  Foreign exporters should seriously consider consulting with counsel to ensure that they meet all requirements under the SFCA and properly obtain the necessary license(s).

[1] To learn more about these requirements, please read our previous article on the SFCA and its regulations, “Importing and Exporting of Foreign Food in Canada: The New Standards and Requirements” here.

[2]The term “food” is defined in the Food and Drugs Act (Canada), and also includes any animal or plant, or any of its parts, from which food may be derived, or anything prescribed to be a food commodity.

[3] Other than a food referred to in any of paragraphs 11(2)(a) to (c) of the SFCR.

[4] SFCR section 12(1).

[5] Sections 29-45 of the SFCA.

 

Article by Martin Aquilina with assistance from Andrea Parodis