Bait and switch? Incorporation by reference of front of pack labelling symbols

24 July 2018

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

The consultation period has now closed on Health Canada's proposed Regulations Amending the Food and Drug Regulations (Nutrition Symbols, Other Labelling Provisions, Partially Hydrogenated Oils and Vitamin D) ("Proposed Amendments"). The Proposed Amendments, among other things, would implement Health Canada's front-of-package ("FOP") nutrition labelling requirement for certain foods in Canada, with the goal of reducing obesity in Canada. To fully understand how this will impact Canadian food companies, we must wait for the final version of the Proposed Amendments, which could include changes.



FOP symbols have spurred significant debate amongst industry, academics, and individuals within Health Canada. Topics of debate include whether food should have negative symbols, whether more aggressive education on existing labelling requirements and overall food literacy has been overlooked, and whether the symbol itself should be factual based (i.e. quantitative), judgmental based (i.e. qualitative) or a hybrid of both qualitative and quantitative information. There is also a question as to whether experiences in other countries, such as Chile, have demonstrated that such FOPs work as a tool towards battling obesity, or whether over time consumers are simply desensitized to the FOP symbols.

An issue that requires further scrutiny, however, is the incorporation by reference of the FOP symbols into the Food and Drug Regulations, instead of having the FOP symbols appear directly in the Food and Drug Regulations. Effectively, this allows Health Canada to update the FOP symbols through a bureaucratic process, rather than through a regulatory amendment. This approach to legislation raises a significant issue of process. Incorporation by reference has been a tool used in other areas of Canadian food law as a mechanism to increase efficiency on issues that tend to be more about the process and require less government level debate. For example, the previous approach to approving food additives required a regulatory amendment, but is now based on an incorporation by reference approach so that routine food additive submissions no longer take many years to obtain a decision - a logical step towards a more efficient regulatory approach.

The problem is that while an incorporation by reference approach makes sense in certain areas, the fact that it bypasses the normal regulatory process for amendments makes it inappropriate in other areas. Regulatory amendments require, amongst other things, a deeper level of consultation and analysis. The bottom line is that if the final version of the Proposed Amendments allow for FOPs to be incorporated by reference, it will also allow the Minister of Health, through Health Canada, to very easily change the symbol requirements without going through the same analysis, consultation and legislative approach currently ongoing under the Proposed Amendments.

Health Canada's proposed modified FOP symbols were developed, in part, through consultation with industry, academics, and consumers in late 2017. Earlier iterations of the proposed FOP nutrition symbols for foods high in certain nutrients included, for example, a stop sign and other hazard symbol shapes that many found more appropriate for dangerous chemicals rather than food products. The new symbols feature a rectangular shape, containing a qualitative "high in" statement, potentially with an accompanying exclamation point or a magnifying glass symbol. However, such consultations may in fact be moot, if for whatever reason, Health Canada chooses to make changes to the FOP symbols following the final publication of the Proposed Amendments. Thus the incorporation by reference of FOP symbols could have a significant impact on industry and consumers.

While at the time of writing this article we do not know how this story will end, we do know that obesity will not end with FOPs. I hope that Health Canada will ensure that any future changes to FOPs require a regulatory level of analysis and consultation. If it turns out that this experiment fails, I also hope that Health Canada shifts its investment to educate our children about food literacy and proper balanced food choices outside the traditional Canada Food Guide approach. In the end, I truly believe that if as a country we want to reduce obesity, that journey starts in our homes and our primary schools. We all want our children to be healthy, it is just a question of how we get there.


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