Legal Implementation Timeline & Enforcement Discretion
As of July 15, 2020, many food businesses dealing with manufactured foods in Canada will need to obtain a license and meet preventive control and traceability requirements under the Safe Food for Canadians Regulations ("SFCR"). The CFIA has recently confirmed that it does not plan to postpone the legal implementation date. More specifically, there are no plans to change the transition provisions of the SFCR, which provide for a delayed application of the licensing, preventive controls and traceability requirements for manufactured foods. As such, the July 15, 2020 SFCR deadline remains unchanged in law.
While the legal implementation date has not been delayed, given the extraordinary circumstances of the COVID-19 pandemic, the CFIA has stated they will employ enforcement discretion and only take appropriate action, when needed, to protect consumers. CFIA has indicated it will not prioritize compliance activities associated with the July 15, 2020, coming into force provisions - as such:
- Importers of manufactured food will generally not encounter delays or disruptions in their imports simply because of not having a Safe Food for Canadians licence yet.
- Domestic manufacturers can continue to operate while they apply for a licence.
CFIA's notice to industry cautions that it remains the responsibility of food businesses to ensure the safety of their products at all times.
While CFIA has indicated it will employ enforcement discretion until further notice, this month CFIA advised industry that it is gradually resuming non-critical inspection activities during the COVID-19 pandemic. The CFIA has begun contacting some businesses to make arrangements for the scheduling of inspections both on-site and paper based.
Timelines for Manufactured Food
The timelines for complying with the implementation of licensing, preventive controls, written preventive control plan and traceability requirements for manufactured foods depend on the type of business activity, business size and level of trade:
- Businesses that import food, or manufacture, treat, preserve, grade, package or label food for interprovincial trade and have more than four employees and gross annual food sales greater than $100,000 must have a license, preventive control plan, preventive controls and traceability by July 15, 2020.
- Businesses that import food, or manufacture, treat, preserve, grade, package or label food for interprovincial trade with gross annual food sales greater than $100,000 that have four or fewer employees have until July 16, 2021 to implement a preventive control plan and preventive controls. A written preventive control plan is not required for such businesses that have gross annual food sales of $100,000 or less. Licensing and traceability requirements must be in place by July 15, 2020.
- Businesses that manufacture, process, treat, preserve, grade, package or label food for export must also have a licence by July 15, 2020. Such businesses with gross annual food sales greater than $100,000 and have more than four employees must also have preventive controls by July 15, 2020, otherwise, the applicable timeframe is July 16, 2021. There are no requirements for a written preventive control plan unless they request an export certificate or other export permission from the CFIA. Traceability must be implemented by July 15, 2020.
There are some specified scenarios where businesses dealing with manufactured foods do not need to comply with licensing, written preventive control plan, or preventive control requirements for businesses – however most businesses must meet the traceability requirement by July 15, 2020. CFIA's guidance on the various scenarios and timelines is available here: SFCR timelines - All other foods (manufactured foods).
Changes to Compliance Activities
CFIA continues to encourage affected businesses to apply for a licence. While CFIA has advised that any changes to the CFIA's prioritization of these compliance activities will be announced with adequate lead time once the situation allows, it is important to consider that under normal conditions, CFIA's processing timelines for an SFCR licence are:
Safe Food for Canadians Licence applications: 15 days
Safe Food for Canadians Licence applications that require pre-issuance verification*: May exceed 15 business days
*Pre-issuance verification by CFIA may be triggered, for example, when information is missing from an application or has been entered in error. In some cases, an application may have to be referred to an Area Inspector for a pre-issuance inspection. When any of these scenarios occur, additional processing time will be required.
Given inspection services are resuming, businesses operating in the manufactured food sector may want to consider beginning the administrative process to set up a MyCFIA profile in advance and ensure that they have a plan to obtain a licence, and meet preventive control and traceability requirements under the SFCR.
Gowling WLG's food and beverage law team is available to assist you in understanding your legal obligations under the SFCR and work with you to help your business comply with licensing, preventive control and traceability requirements.