To appreciate where food labelling under Federal authorities is heading in the next few years, let’s take a look at where it is today, which is “somewhere” — the place between “almost there” and “just begun.” Modernization efforts during the past decade have enjoyed a renaissance unrivaled in history. The assent of the Safe Food for Canadian Act in 2012 and its coming into force on January 15, 2019 built a sense of optimism that food labelling modernization was within sight. But despite this early optimism, it remains in that very comfortable place, “somewhere.”
“Somewhere” is influenced by what facet of food labelling modernization is involved. To date, there have been at least three major definable initiatives. The first is updates to Canadian nutrition and ingredient labelling under the Food and Drug Regulations (FDR). The second involves a new approach to supplement nutrition information by including nutrition information on the main panel alerting consumers that a food is high in sodium, saturated fat and/or sugars. That too would be under the FDR. The third involves the Canadian Food Inspection Agency’s (CFIA) broad-based food labelling initiative that consider amendments to the FDR as well as the Safe Food for Canadians Regulations (SFCR). This was proposed to involve such labelling matters as prominence of information, consolidation of country-of-origin labelling, enhanced date labelling of foods, modernizing the declaration of the identity and principal place of business statement and emphasized ingredient and flavour representations.
The modernization rules under the FDR concerning nutrition and ingredient labelling were finalized on December 14, 2016. Originally, on offer was a five-year transition period to end on December 14, 2021. In February 2021, the CFIA announced that while the transition period will not be formally extended due to challenges introduced by the COVID-19 pandemic, they will engage in compliance promotion and education in the year following December 14, 2021. Effectively, the compliance period is extended until December 14, 2022. In addition, the CFIA may engage in enforcement discretion during the period between December 15, 2022 and December 14, 2023 where a company has a detailed plan to bring their foods into compliance with the new rules as soon as possible. The end game for this modernization, while extended, has a fixed date of no longer than December 14, 2023. After this date, all foods manufactured must have applied a label in compliance with these new rules. Products with former labels already in the stream of commerce as of this date will expire naturally.
The CFIA’s broad-based food labelling modernization initiative made its way to the proposed regulations stage in June of 2019. It was almost in the final stage but got caught in the COVID storm. As a result, the CFIA and Health Canada will complete the rule making process for this in the fall of 2021 but will not pursue mandatory food labelling amendments that would have meant updating food labels. The impact is very dramatic as the core of this initiative was effectively neutered. Since this is then no longer food labelling modernization, the CFIA has reinvented this under the brand of “food product innovation.” This also includes separate topics like the CFIA’s plan on consolidating FDR food standards and incorporating them by reference, which would then allow them to be modernized more efficiently later, under the FDR. What’s left is the repeal of certain standard container sizes and the consolidation of what remains in a document that will be incorporated by reference. Class names for ingredients in the FDR will be repealed and consolidated in a document incorporated by reference. Commodity specific labelling that will not result in mandatory label changes will be harmonized and streamlined. So essentially, only some of the needed housekeeping rule changes will be carried forward to final regulations. But don’t think this part of food labelling modernization is extinct — the CFIA has noted it intends to pursue these as part of future rule-making.
The focus of COVID-influenced food labelling modernization is clear. Over the next few years, the priority for Health Canada and the CFIA is to push forward food labelling that relates to innovation and safety (including nutritional health). This includes Health Canada’s plan to introduce a regulatory framework for supplemented foods, including front-of-package (FOP) nutrition symbols. Regulations in the latter case were introduced in February 2018. After the fall election of 2019, the Prime Minister issued a mandate letter to the Minister of Health recommitting the promotion of healthy eating. This includes FOP nutrition symbols. So, it’s back! The proposed timelines might see final regulations by end of 2021. There really is not much time left on that clock, so it is a bit uncertain as to how this can be achieved. However, even if this is finalized, it would likely involve an extended transition period of several years.
Among the current consultations is the joint policy statement being worked on by Health Canada and the CFIA that would result in targeted and predicable dates as to when food labelling rules will come into force. This feature within U.S. food labeling amendments under the FDA and is long overdue in Canada. The policy is considering a predictable two-year period, starting January 1, 2026, were rules affecting food labelling (other than those that would address serious consumer deception or acute risks to health and safety) would be co-ordinated to come into force on those compliance dates. Those changes related to acute health or serious deception will come into force as needed.
There are still a lot of goodies on the food labelling modernization menu. However, the priority focus is now on innovation and safety initiatives.
Gary Gnirss is a partner and president of Legal Suites Inc., specializing in regulatory software and services. Contact him at [email protected]