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Leaving a trace

New food traceability requirements offer better protection for consumers, new liabilities for food businesses.
Leaving a trace
Jon-Paul Powers and Lewis Retik are partners in Gowling WLG’s Ottawa office and members of the firm’s Food & Beverage Group.

Recent high-profile cases of E. coli discovered in romaine lettuce, red and green leaf lettuce and cauliflower — resulting in illness and even fatalities in several Canadian provinces and U.S. states — underscore the necessity and timeliness of the updated Safe Food for Canadians Regulations that came into effect Jan. 15. 

The result of years of consultation between the Canadian Food Inspection Agency, industry stakeholders and consumers, the regulations fulfill the vision of the Safe Food for Canadians Act, passed in 2012.

In addition to introducing a sweeping federal licensing regime for the first time, the SFCR contains important new provisions aimed at enhancing transparency in the supply chain and heightening awareness of food origins — all with the goal of protecting Canadians from food-borne illnesses.

The most salient of these provisions are strict traceability requirements that will apply to most food businesses — including importers, exporters, manufacturers and retailers (although, notably, not to restaurants or similar vendors). It’s also important to note that the rules will apply equally to food being imported and exported across national and provincial borders.

The primary aim of the traceability requirements is, at base, to reduce the amount of time it takes to pull unsafe food from the market. Some argue that there is an added benefit for businesses in that the traceability requirements are expected to significantly focus the scope, and by extension costs, of product recalls — helping ensure that only contaminated food is targeted. 

Historically, food traceability in Canada has been governed by a patchwork of voluntary industry-led initiatives, and various uncoordinated federal and provincial measures. For the first time, traceability will have the force of federal law. For many businesses operating in the sector, this will mean big changes in their processes, and potentially significant investments in training and new software infrastructure. 

In January, food businesses will be required to maintain records that enable them to trace their food back to the supplier, as well as forward to purchasers. Retailers, in turn, will be required to trace their food back to the supplier, although — for obvious logistical and privacy reasons — not forward to consumers.

According to the SFCR, traceability records must contain the following information at a minimum:

• the common name of the food (or other unique identifier);

• the name and principal place of business of the person by, or for whom, the food was manufactured, prepared, produced, stored, packaged or labelled;

• the date you were provided with the food and/or the date you provided the food to a third party;

• the name of any food commodity incorporated into the food, or from which the food was derived.

Records must be retained for two years from the day the food was provided or sold to another person, and they must be readily available in Canada. Food businesses that receive a government request for documentation will be expected to comply within 24 hours.

Complementing these requirements are a number of rules prescribing how the aforementioned information is to be labelled on packaging.

While the new requirements will be welcome news for consumers and public health professionals, the regulations also give rise to a new sphere of potential liability for companies that fail to comply.

The Act contains broad inspection and enforcement mechanisms for those who contravene any part of the SFCR — including, but not limited to, seizure or disposal of imports, fines of up to $5 million and up two years in prison.

The food sector is a notoriously litigious space, and incomplete or inaccurate traceability records — particularly those facilitating or exacerbating the spread of foodborne illness — could result in heightened exposure to civil actions as well.

To mitigate such risks, it is incumbent on food businesses to ensure that their in-house protocols are firmly established, well-organized, broadly communicated and align with the new regulations.