Legal news and trends for Canadian in-house counsel and c-suite executives
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FEATURE for these things," Boscariol says. "Sometimes it's $100, some- times it's $100,000. What hits is the reputational impact, having their name in the headlines. They don't want to be viewed as rogue companies or assisting terrorists. It just attracts addition- al government scrutiny." Boscariol recommends in-house counsel: In addition to fines, says Swick, there's the potential for the loss of licences provided by the Canadian Food Inspection Agency. "Your reputation doesn't matter if you can't get a licence." The advent of the new regulations may mean a sea change from the way in-house counsel have operated in the past. The legislation is written broadly, which in itself creates a need for extra diligence for counsel, Swick says. "They are purposely drafted that way to allow the bureaucrats to draft the regula- tions. . . . The devil here is clearly going to be in the regula- tions." Several Canadian importers in the food, consumer product, and drug sectors were contacted for this piece but were reluctant to discuss the bills until they become law. Swick says that may be too late for their clients. "Read the legislation. Get the compli- ance plan in order, and don't wait for there to be problems." She adds that in-house counsel in the past have been reluctant to deal with problems until the damage is done. But, says Jackie Crichton, vice president for food safety and labelling for the Canadian Council of Grocery Distributors, it's the regulations and not the legislation that will set the tasks in-house counsel need to address. The same goes for dealing with foreign suppliers. "Once known, in-house regulatory af- fairs generally work with in-house legal council and respective associations during the consultation process." is clearly going to be in the regulations," — BRENDA SWICK, MCCARTHY TÉTRAULT LLP "They are purposely drafted that way to allow the bureaucrats to draft the regulations . . . The devil here The new rules demand that due diligence be shown to have been done. And indeed, due diligence is a defence in the face of the legislation, stated a 2008 Blake Cassels & Graydon LLP arti- cle, "Ottawa sends importers a clear message: Know your prod- ucts," by partner Cliff Sosnow and associate Elysia Van Zeyl. "You must take this seriously," Swick says of the legislation. "You need to get systems into place to comply. You have to be very proactive. They're so broad that they affect every conceiv- able industry except telecommunications. "In addition, notices to importers are published by the Im- port Controls Bureau on any new developments in relation to specific import controls, and these are distributed to interested parties." Department of Foreign Affairs and International Trade spokesman Michael O'Shaughnessy, says counsel can avail themselves if regular consultations are done with industry stake- holders. Those are done on a commodity sector basis, he says. However, despite the recent high-profile Menu Foods recall of tainted pet food, the legislation does not address pet products. Possible areas that may be covered under the new legislation (Source 2008 Blake Cassels and Graydon LLP article – Ottawa Sends Importers A Clear Message: Know Your Products) Web sites with further Information: Export and Import Controls Bureau — international.gc.ca/trade/eicb/general/ general-en.asp Canadian Food Inspection Agency — www.inspection.gc.ca/english/toce.shtml DFAIT — www.international.gc.ca/inter- national/index.aspx Aeronautics Act. C ANADIAN Lawyer INHOUSE DECEMBER 2008 9