As I write this article in early May 2020, I honestly do not know what the world will be like when you read this. However, I am confident that it will continue to be very different from the pre-COVID days. As a food lawyer for the past 18 years and the leader of the Food and Beverage group at Gowling WLG, I can tell you without hesitation that there has been no other event during my career that so quickly challenged Canada's food industry and required such a quick adaptation to a new environment. While I have my own predictions, it remains unclear what changes will remain and what changes will revert to the pre-COVID days.
From a legal perspective, the regulators have had no choice but to adapt, and so far, they have. My only hope is that they continue to evaluate the situation, take a practical approach, and recognize that, following the hopeful resolution of COVID-19, the food industry, including their thousands of employees, bravely stepped up to keep food on the table of Canadians.
One of the big changes in the food industry that required a major re-think of how to approach COVID-19 from a legal perspective is the supply chain shift caused by major lockdowns throughout Canada. Simply put, Canadians are not buying the same quantity of food at restaurants and institutions as they were prior to the pandemic. The required shift by most restaurants to only sell through pickup and delivery has resulted in a significant reduction in the quantity of food being sold through this channel. However, Canadians continue to eat food. The difference is that Canadians are purchasing nearly all of the food they consume from the grocery channel. This change in the way consumers are purchasing their food effectively resulted in an undersupply of food products in the grocery channel and an oversupply of food products in the foodservice channel. As a consequence, almost every company in the supply chain has had to adapt to this new reality.
This new disconnect in the supply chain also led the Canadian Food Inspection Agency (CFIA) to step up and adopt a policy to suspend low-risk enforcement activities and provide for certain labelling flexibilities for foodservice products during this crisis. The CFIA's stated purpose is "...to support the economy, alleviate supply disruptions in Canadian grocery stores, and avoid food waste." This was a necessary step by the CFIA to take a practical policy-based approach to ensure that food continued to get into the hands of consumers and so that foodservice companies continued to have a sales channel and remain in business, notwithstanding the technical non-compliance with certain labelling requirements. It is important to remember that foodservice companies do not just supply restaurants, but also healthcare institutions throughout the country. In other words, the foodservice industry is truly an essential one.
This step taken by the CFIA has greater significance than in the context of the pandemic alone. It demonstrates that the CFIA can, and sometimes should, step away from the rigidity of the legislation and take a practical policy-based approach with respect to enforcement. While this has occurred on occasion in the past, the significance in these circumstances is the very public and predictable nature of the CFIA's adjusted approach to enforcement. In effect, without any change in the law, the food industry has a reasonable understanding of how it can conduct itself during these times, without worrying about the CFIA enforcing after the fact.
There is no doubt that as Canadians, we are all in this together, whether working for industry or government. Hopefully this collaborative, predictable, and practical approach to the way enforcement is considered and communicated when the situation demonstrates a need, will be an approach that continues post-pandemic for the greater good of all Canadians. For now, I want to provide a heartfelt thank-you to all the food industry workers and CFIA public servants for stepping up to the plate when we need it the most.