Canadian Lawyer InHouse

13 CANADIANLAWYERMAG.COM/INHOUSE JANUARY/FEBRUARY 2019 Risk Management By Jon-Paul Powers and Lewis Retik Leaving a trace New food traceability requirements offer better protection for consumers, new liabilities for food businesses. R ecent high-profi le cases of E. coli discovered in romaine lettuce, red and green leaf lettuce and caulifl ower — resulting in illness and even fa- talities in several Canadian provinces and U.S. states — underscore the necessity and timeliness of the up- dated Safe Food for Canadians Regulations that came into effect Jan. 15. The result of years of consultation between the Ca- nadian Food Inspection Agency, industry stakeholders and consumers, the regulations fulfi ll the vision of the Safe Food for Canadians Act, passed in 2012. In addition to introducing a sweeping federal licens- ing regime for the fi rst time, the SFCR contains im- portant new provisions aimed at enhancing transpar- ency in the supply chain and heightening awareness of food origins — all with the goal of protecting Can- adians from food-borne illnesses. The most salient of these provisions are strict trace- ability requirements that will apply to most food busi- nesses — including importers, exporters, manufactur- ers 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 ex- ported 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 benefi t for businesses in that the traceability requirements are expected to signifi cantly 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 ini- tiatives, and various uncoordinated federal and provin- cial measures. For the fi rst time, traceability will have the force of federal law. For many businesses operating in the sector, this will mean big changes in their pro- cesses, and potentially signifi cant investments in train- ing and new software infrastructure. In January, food businesses will be required to main- tain 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 identifi er); • 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 business- es 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 dis- posal of imports, fi nes 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 — par- ticularly those facilitating or exacerbating the spread of foodborne illness — could result in heightened expos- ure to civil actions as well. To mitigate such risks, it is incumbent on food busi- nesses to ensure that their in-house protocols are fi rmly established, well-organized, broadly communicated and align with the new regulations. IH Jon-Paul Powers and Lewis Retik are partners in Gowling WLG's Ottawa offi ce and members of the fi rm's Food & Beverage Group. For the fi rst time, traceability will have the force of federal law.

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