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Changing lanes: Health Canada speeds toward its new Healthy Eating Strategy

September 13, 2017

This article originally appeared in Food in Canada and is republished with the permission of the publisher.

The legal landscape for food companies continues to evolve at a rapid speed. Health Canada’s Healthy Eating Strategy is well underway, with no signs of slowing down. Under this new strategy, Health Canada published changes to the Food and Drugs Regulations for nutrition labelling and ingredient listings, and is in the late stages of consultations to limit industrial trans fats and impose new front of package (FOP) labelling. These changes are significant for the industry, as they impact both marketing and product formulation.

Regarding trans fats, on April 7, 2017 Health Canada published its Notice of Proposal — Prohibiting the Use of Partially Hydrogenated Oils (PHOs) in Foods, which adds PHOs to the List of Contaminants and Other Adulterating Substances in Foods (the List). Health Canada will allow a transition period of 12 months post publication on the List.

Listing PHOs as an adulterant allows Health Canada to bypass the requirement of a regulatory or legislative amendment. Health Canada’s use of the List as a method of prohibiting PHOs is also an example of how Health Canada is increasingly using reference lists to accelerate change. This approach circumvents the more involved and time consuming requirements associated with amending regulations or Acts of Parliament, and allows Health Canada to make changes quickly and with limited to no consultation.

Turning to FOP labelling, Health Canada’s initial consultation proposes warnings for foods high in nutrients of concern. The initial consultation period has closed, but Health Canada intends to resume consultations later in 2017.

Most consumers will have instinctive reactions to the proposed FOP labels if, as proposed, Health Canada uses familiar octagonal “stop” or triangular “yield” sign shapes. The symbols will be included on the packaging of foods that are high in sugar, saturated fat, and sodium (high being 15 per cent or greater of the recommended daily intake for prepackaged foods and 30 per cent in prepackaged meals).

The use of these arresting and familiar symbols will presumably cause shoppers to hit the brakes, and provide simple and quick notice to consumers about the abovementioned nutrients. Canada’s proposed FOP labelling will be binary (display or don’t display) and mandatory. This means that only foods high in certain nutrients will need to make the labelling changes, resulting in a promi­nent, visual differentiation from foods low in the nutrients of concern, even if they are also low in desired nutrients.

A secondary effect of this proposal could be reformulation to avoid forebod­ing warning labels. In its consultation notice, Health Canada cited evidence that FOP labelling might motivate food manufacturers to lower the levels of certain nutrients in their products. This will likely depend on whether consumers change purchase decisions, or simply become desensitized to the FOP symbols.

What remains unclear is how FOP labelling will apply to foods that are generally considered healthy. Health Canada has indicated that fruits and vegetables naturally high in sugars would not need to have FOP labelling, as they are considered foods that are consistent with healthy eating. Less certain is whether other prepackaged foods that are generally considered healthy by consumers or included in Canada’s Food Guide will also be captured. For example, cheese is used in the Food Guide as an example of a “milk and alternatives” serving, but may qualify as high in saturated fat. Issues may also arise for packagers of nuts, and manufacturers of nut butters or other products, and for producers of certain cooking oils, such as coconut oils.

It will be interesting to see what direction Health Canada chooses as it steers Canadians along the road toward healthy eating, and whether traffic symbols will effectively curb consumer behaviours. What we do know is that food companies need to pay close attention to these legal developments, as they may have a significant impact in the marketplace.


NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.

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