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

Foreign food companies looking to ship products to Canada continue to face challenges under the Safe Food for Canadians Act (SFCA) and Safe Food for Canadians Regulations (SFCR). The inclusion of a non-resident importer licensing option under the SFCA was a major point of discussion during the early consultations on this regulatory framework. While this option was ultimately included in the SFCR, the current approach creates some absurd situations.

Subsection 12(1) of the SFCR provides that an importer that does not have a fixed place of business in Canada is able to obtain a SFC licence, as long as certain conditions are met. These conditions include having a fixed place of business in a country that has a food safety system or inspection system recognized by the CFIA, and shipping the food products from a country that has a food safety system or inspection system recognized by the CFIA.

After some initial confusion, the CFIA has confirmed that imported food products do not necessarily have to come from the same country where the non-resident importer has its fixed place of business. However, to date, the CFIA has only recognized the food safety system of the United States with respect to all food products. For other countries, the CFIA recognition (if any) is limited to the inspection system specifically for meat and live or raw shellfish products. It is important to keep in mind that a meat product is broadly defined to include "a product or by-product of [a food animal's] carcass or any food that contains the blood of a food animal or a product or by-product of its carcass" other than "a food that contains a meat product in an insignificant quantity, having regard to the nature of the food and of the meat product."

CFIA's SFCR glossary of key terms goes on to provide guidance as to what is or is not considered an "insignificant quantity" of meat product. Aside from some specific product types outlined in that guidance, the general rule is that a food containing more than two per cent meat product is itself a meat product for the purpose of the SFCA and SFCR, though it may be subject to some targeted exceptions under section 25 of the SFCR.

The result is that companies outside of the United States that manufacture products for which there are both meat and vegetarian versions of the product may find themselves in a situation where they can be the licensed importer for only some of the products shipped to Canada from their facility.

For example, consider a company in Italy that is a registered meat facility making soups, pizzas or other manufactured foods, which may or may not contain more than two per cent meat. The company can be the licensed importer for the meat products and ship them directly to Canada because the products are made in a facility that is under a meat inspection system recognized by the CFIA. However, if the company also makes vegetarian versions of those same types of products, at the same facility, they are not meat products and therefore cannot be imported to Canada by that company as a non-resident importer even though the facility is subject to a recognized meat inspection system.

Unfortunately, while subsection 12(2) provides for the CFIA to recognize the food safety system of other countries (for non-meat/shellfish products), recognition is a resource intensive, complex and lengthy process, and the focus so far has continued to be the recognition of additional meat inspection systems. In the meantime, some foreign companies may find that becoming a non-resident importer simply isn't the most practical approach.