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Operational guideline: food regulatory response guidelines

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1. Purpose

The purpose of this document is to provide guidance on the control and enforcement actions available to persons administering the food inspection program at the Canadian Food Inspection Agency (CFIA) when responding to non-compliance. It also serves to provide more information on the nature of the available control and enforcement actions; when each action may be applied (based on specifications in the legislation); and any relevant conditions or circumstances. The objective, therefore, is to contribute to an objective, fair, effective, predictable and transparent response to non-compliance.

This document is intended to be used in conjunction with other guidance documents such as the Standard regulatory response process to empower and assist inspectors in responding appropriately and within the agency's legislated powers to events that require a control or enforcement response. While this guidance may serve as a valuable tool, it is not intended to impede the discretion of CFIA staff tasked with the responsibility of enforcing legislative or regulatory requirements.

When responding to non-compliance, the CFIA strives to achieve consistency and predictability. Similar situations or incidents of non-compliance, regardless of where they occurred, are considered when determining the appropriate regulatory response. However, individual considerations must be given to each incident of non-compliance to determine the most effective course of action. When appropriate, the initial response to non-compliance may be corrective and remedial in nature, usually through corrective actions taken by the regulated party. When warranted and depending on the harm, history and intent associated with a given non-compliance, the CFIA also has the necessary powers and authorities to address the non-compliance through the use of a variety of control and enforcement actions.

Note: Although this document organizes inspector powers, control actions and enforcement actions in separate categories, they are all considered enforcement actions under the relevant acts and can be used independently or concurrently as the situation warrants.

2. Authorities

3. Reference documents

4. Definitions

Definitions are located in either the:

5. Acronyms

Acronyms are spelled out the first time they are used in this document and are consolidated in the Food business line acronyms list.

6. Operational guideline

The following guidance identifies the control and enforcement options available under the food related legislation enforced by the CFIA and is intended to be used in conjunction with other food business line or horizontal guidance. This guidance document also identifies the powers of inspectors designated under subsection 13(3) of the Canadian Food Inspection Agency Act for the administration and enforcement of the Safe Food for Canadians Act (SFCA) and the Food and Drugs Act (FDA). When performing inspection, control or enforcement actions, inspectors and other designated or delegated authorities should also verify the specific wording in the relevant act or regulations.

6.1 Inspector powers

These powers enable inspectors to carry out their duties for compliance verification and control actions under SFCA and FDA. There may be additional inspector powers linked to specific control or enforcement activities that are also identified in the relevant section of this document (for example, powers to deal with a thing seized and detained).

6.1.1 Inspection powers under the Safe Food for Canadians Act

The following powers may be used by inspectors when carrying out activities to verify compliance or prevent non-compliance with the SFCA and its regulations. They are not authorized for the purpose of collecting evidence for prosecution.

When an inspector has reasonable grounds to believe an activity regulated under the SFCA is conducted or an item to which the Act applies is located in a place, the inspector may use the powers identified in Table 1.

Note: To believe something on reasonable grounds, the inspector must subjectively believe and have an objective basis for that belief that is based upon "compelling and credible information". Suspicion is not enough. The existence of reasonable grounds must be established objectively, that is, a reasonable person, placed in similar circumstances and with the same facts, would arrive at the same belief.

Table 1: Powers of the inspector that enable access to a place under the SFCA
Powers of the inspector Authority
Enter a place including a conveyance.
Not authorized if the place is a dwelling-house without the occupants consent or a warrant.
SFCA 24(1)
SFCA 26(1)
Enter and pass through private property, other than a dwelling house on that property, to gain entry to a place. SFCA 24(5)
Order the owner or person having possession, care, or control of the conveyance to stop it or move it to a place where the inspector can enter it. SFCA 24(3)

For a purpose related to verifying compliance or preventing non-compliance with the SFCA, the inspector may use any of the powers listed in Table 2.

Table 2: Powers of the inspector that enable inspection activities under SFCA
Powers of the inspector Authority
Examine or test, or take samples of, anything in the place. SFCA 24(2)(a)
Open a package that is in the place. SFCA 24(2)(b)
Examine a document that is in the place, make copies of it or take extracts from it. SFCA 24(2)(c)
Order the owner or person having possession, care or control of an item to which this act applies that is in the place to move it or, for any time that may be necessary, not to move it or to restrict its movement. SFCA 24(2)(d)
Use or cause to be used a computer or other device that is in the place to examine data that is contained in or available to a computer system or reproduce it or cause it to be reproduced in the form of a printout or other intelligible output and remove the output for examination or copying. SFCA 24(2)(e)
Use or cause to be used copying equipment that is in the place and remove the copies for examination. SFCA 24(2)(f)
Take photographs or make recordings or sketches. SFCA 24(2)(g)
Order any person in the place to establish their identity to the inspector's satisfaction. SFCA 24(2)(h)
Order any person who, in the place, conducts an activity regulated under this act to stop or start the activity. SFCA 24(2)(i)
Prohibit or limit access to all or part of the place or to anything that is in the place. SFCA 24(2)(j)
Remove anything from the place for the purpose of examination, conducting tests or taking samples. SFCA 24(2)(k)
Order a person to provide, on the date, at the time and place and in the manner specified by the inspector, any document, information or sample specified by the inspector. SFCA 27

6.1.2 Inspection powers under the Food and Drugs Act

Note: the following powers may be used by inspectors when carrying out activities to verify compliance or prevent non-compliance with the FDA and its regulations. They are not authorized for the purpose of collecting evidence for prosecution.

An inspector can apply the powers listed in Table 3 to gain access to a place or conveyance in which they believe on reasonable grounds that an activity regulated under the FDA is being conducted or an article to which the FDA or the regulations apply is located.

Table 3: Powers of the inspector that enable access to a place under FDA
Powers of the inspector Authority
Enter any place, including a conveyance.
Not authorized if the place is a dwelling-house without the occupants consent or a warrant.
FDA 23(1)
FDA 23(9)
Enter a place remotely by a means of telecommunication.
Unless the place is accessible to the public, the inspector may only enter the place remotely with the knowledge of the owner or person in charge of the place and only for the period necessary for a purpose related to verifying compliance or preventing non-compliance.
FDA 23(3)
FDA 23(4)
Enter and pass through private property, other than a dwelling house on that property, to gain entry to a place. FDA 23(8)
Order the owner or person having possession, care or control of a conveyance to stop it or move it for the purpose of entering it. FDA 23(5)

For the purpose of verifying compliance or preventing non-compliance with the provisions of the FDA and its regulations, an inspector may apply the powers listed in Table 4.

Table 4: Powers of the inspector that enable inspection activities under FDA
Powers of the inspector Authority
Examine any article to which the FDA or its regulations apply or anything that the inspector believes on reasonable grounds is used or is capable of being used for an activity regulated under the FDA. FDA 23(2)(a)
Open and examine any receptacle or package that the inspector believes on reasonable grounds contains any article to which the FDA or its regulations apply. FDA 23(2)(b)
Examine – and make copies of or take extracts from – any record, report, electronic data or other document that is found at the place and that the inspector believes on reasonable grounds includes information relevant to the administration of the FDA or its regulations. FDA 23(2)(c)
Cause to be reproduced any electronic data referred to in paragraph (c). FDA 23(2)(d)
Use, or cause to be used, any computer system or telecommunication system at the place. FDA 23(2)(e)
Examine – and reproduce or cause to be reproduced – any electronic data that is contained in or available to a system referred to in paragraph (e) and
that the inspector believes on reasonable grounds includes information relevant to the administration of the FDA or its regulations.
FDA 23(2)(f)
Remove, for examination or copying, any copies made or extracts taken under paragraph (c), (d) or (f). FDA 23(2)(g)
Test anything that the inspector believes on reasonable grounds is an article to which the FDA or its regulations apply. FDA 23(2)(h)
Take samples of any food or anything used for an activity regulated under the FDA. FDA 23(2)(i)
Take photographs and make recordings and sketches. FDA 23(2)(j)
Remove anything from the place for the purpose of examination, conducting tests or taking samples FDA 23(2)(k)
Order a person to provide, on or before the date and time specified by the inspector and at the place and in the manner specified by the inspector, any document, information or sample specified by the inspector. FDA 22.1(1)

6.1.3 Guideline on specific inspection powers

Ordering the production of documents [SFCA 27, FDA 22.1(1)]

Section 27 of the Safe Food for Canadians Act (SFCA) and subsection 22.1 (1) of the Food and Drugs Act (FDA) authorize a CFIA inspector to order that a person provide documents, information or samples needed to verify compliance or prevent non-compliance with legislative requirements. The inspector has the authority to order the documents, information and samples to be provided without needing to go to the place of business.

A person who does not provide the material or does not comply with an order made by an inspector would be considered as being in non-compliance to the relevant act. The date, time and place must be clearly specified by the inspector in order to exercise their power under this authority.

Powers related to access to the site [SFCA, 24(2)]

Inspectors are authorized to take photographs or make recordings or sketches. The inspector is required to be at the place, interior or exterior of the premises, in order to exercise their power under this authority.

6.2 Available control actions

As described in the Standard regulatory response process, control actions are applied by CFIA to control risks. Other guidance documents such as food business line control response plans provide the program design context and factors that may lead to the implementation of a control action. The guidance below provides the regulatory context that should be verified to ensure that control actions are only implemented when authorized by the relevant legislation and when all the legislated conditions tied to the control action are met.

When a food related risk must be controlled by CFIA, the following control actions may be taken independently or in combination with enforcement measures to control the risks to consumers:

Note Seizure and detention, ordering that an item be moved or not be moved, and ordering the start or stop of an activity are specific powers of an inspector. However, these powers also contribute directly to controlling risks when implementing a control response plan and, therefore, are included in the list of control actions.

6.2.1 Seizure and detention

SFCA: The inspector may seize anything they have reasonable grounds to believe:

FDA: The inspector may seize any article by means of or in relation to which the inspector believes on reasonable grounds any provision of the FDA or the regulations has been contravened.

In both cases, this could include a food product or any other thing used in the manufacture, preparation, preservation, packaging or storage of a food subject to a provision of the act or regulations.

6.2.2 Ordering disposal of a thing seized and detained

An inspector may dispose or order the disposal of a thing that has been seized.

6.2.3 Ordering the movement or storage of a thing seized and detained

An inspector may move or store a thing seized or order that it be moved or stored.

6.2.4 Ordering removal or destruction of imported products

SFCA: an inspector may order the removal of an imported food commodity from Canada or, if removal is not possible, an inspector may order that the food commodity be destroyed.

FDA: an inspector may order the removal of an imported food from Canada or, if removal is not possible, an inspector may order that the food be destroyed.

6.2.5 Recall order

The Minister may issue an order to the person selling, marketing or distributing a product notifying them that the product has been recalled and/or must be sent to a place designated by the Minister.

6.2.6 Forfeiture of a thing (automatic, by consent or by Minister's election)

A food commodity or thing may be forfeited as prescribed by the specific provision of the act that authorizes the forfeiture to Her Majesty in right of Canada.

6.2.7 Ordering that an item be moved or not be moved

An inspector may order a person to move, not move or restrict the movement of an item to which the SFCA applies.

6.2.8 Ordering the start or stop of an activity

An inspector may order a person to start or stop an activity.

6.2.9 Prohibiting or limiting access to all or part of a place or anything in the place

An inspector may prohibit or limit access to all or part of a place or anything in a place.

6.2.10 Adding conditions to a licence or registration to control a risk

The Minister may add conditions to a licence or registration and those conditions must be met by the licence holder.

6.2.11 Cancelling or refusing to issue a certificate or other document

An export certificate or other document may be cancelled or refused when the conditions for issuance are not met.

6.2.12 Amending a licence due to inability to conduct activity

The Minister may amend a licence to remove the authorization to conduct an activity in an establishment where the licence holder is unable to conduct the activity.

6.3 Available enforcement actions

As described in the Standard regulatory response process, when non-compliance is identified through inspection, there is a broad range of enforcement actions available to the CFIA. In a consistent, graduated approach, 1 or more of the actions outlined in this section may be taken in response to non-compliance, depending on the circumstances. The enforcement actions available in response to non-compliance with the SFCA, SFCR, FDA or the FDR include:

Only individuals authorized by the legislation may make decisions concerning a specific enforcement response. However, individuals in various roles contribute to the enforcement response by:

6.3.1 Letter of non-compliance

A letter of non-compliance is a documented notice to the non-compliant regulated party that acknowledges a contravention of the relevant act or regulation has occurred. This letter also explains to the regulated party that failure to take corrective action may result in subsequent enforcement action.

6.3.2 Meeting with the regulated party

A meeting with the regulated party is a formal meeting initiated by CFIA officials to discuss issues of non-compliance with the regulated party.

6.3.3 Licence suspension

A licence issued under SFCA 20(1) may be suspended by the Minister (Minister's delegate).

6.3.4 Licence cancellation

A licence issued under SFCA 20(1) may be cancelled by the Minister.

6.3.5 Refusal to issue, renew or amend a licence

Under certain circumstances, the Minister (Minister's delegate) may refuse to issue, renew or amend a licence issued under SFCA 20(1).

6.3.6 Suspension of a post-mortem examination program authorization or a post-mortem defect management program authorization

The Minister may suspend a licence holder's authorization to conduct a post-mortem examination program or a post-mortem defect management program (issued under SFCR 160).

6.3.7 Refusal to issue accreditation of an organic certification body

Refusal to issue an accreditation under SFCR 361

6.3.8 Suspension of an organic certification body's accreditation

Suspension of the accreditation of a certification body issued under SFCR 361

6.3.9 Cancellation of an organic certification body's accreditation

Cancelation of the accreditation of a certification body issued under SFCR 361

6.3.10 Notices of violation (administrative monetary penalties)

The AAAMPs act and regulations provide for the issuance of 2 types of Notices of violation to non-compliant parties: a Notice of Violation (NOV) with warning and a Notice of Violation with penalty. These documents can be colloquially referred to as an "administrative Monetary Penalty (AMPs) warning" and an "AMPs penalty."

6.3.11 Prosecution

A person alleged to have contravened the relevant act or regulation may be prosecuted.

For general inquiries related to this Operational Guidance Document, please follow established communication channels, including submitting an electronic Request for Action Form (e-RAF) (accessible only on the Government of Canada network).

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