This article originally appeared in Food in Canada and is republished with the permission of the publisher.
Food companies doing business in Canada find themselves interacting with regulators more than ever before and there are inevitably times when food companies and the CFIA do not agree on the issue at hand. This could be because the CFIA is taking a position that seems unsupported by the applicable laws, there is a dispute on the facts, or the approach seems disconnected from the supposed safety concern. During these times, companies may struggle with how to best interact with the CFIA, especially given its broad powers of enforcement.
The first, and what may seem most obvious, approach is engagement, whether directly or with the help of internal or external counsel. We often find our clients struggling with how to engage the CFIA most effectively to ensure it appreciates and seriously considers the company’s position. The majority of situations are resolved through engagement, and while the outcome may not be the company’s ideal resolution, a negotiated approach can allow a company to move forward on a relatively low cost basis.
In our experience, there are three key aspects to consider when engaging the CFIA.
- Whether communications include the correct CFIA personnel. The CFIA is a regionally organized institution with a national mandate. As such, a CFIA internal expert may not be part of the dialogue between the company and regional office, or there may be regional variation in the CFIA approach to similar issues.
- Whether you have as many facts as possible. There are varying types of issues that arise, and the nature of the issue will affect how much time the company has to gather information. It is crucial that companies use any limited time to pull together as much information as possible, which may include internal documents or third-party product testing.
- Whether you fully understand all applicable law. This consideration should not be underestimated. The CFIA’s role is to apply the law, and its mandate and powers are governed by law. The CFIA does not have the power to take steps beyond those that it has under law, nor does it have the power to create law where law does not exist. It is imperative that a company appreciates how these underlying facts apply to its situation.
While engagement often resolves the situation, at times it is simply not adequate and companies need to consider additional action, such as filing a complaint with the CFIA`s Complaints and Appeal Office (CAO) or filing for judicial review with the Federal Court of Canada (FCC).
The CAO is not an appeal body in the commonly understood sense. It accepts complaints, appeals, or compliments related to CFIA service delivery, administrative errors and regulatory decisions, and can conduct investigations, including asking the complainant questions and meeting with the CFIA personnel involved. The CAO then makes a recommendation based on its investigation.
While the CAO presents that it will consider all viewpoints in an impartial and unbiased manner, it exists within the framework of the CFIA and is not an independent agency. In addition, the CAO does not have the power to enforce its recommendation. The responsible group within the CFIA can decide whether or not to follow the CAO recommendation. Of the 123 regulatory decision complaints closed between October 2012 and March 2016, 19% resulted in a reconsidered or amended regulatory decision, while 81% of the initial decisions were upheld.
A company may also be in position to appeal a CFIA regulatory decision to the FCC through a judicial review action. If the court finds the CFIA`s decision is within the confines of its legal powers, the court is less likely to overturn a decision, using reasonableness as a standard of review and providing the CFIA a higher degree of deference. However, if the issues are procedural, the court will be less likely to show deference to the CFIA.
Companies are not required to completely accept the position of a regulator. Food companies should always ensure that the CFIA is approaching each issue in a manner that is reasonable and within its legal mandate.