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Operational procedure: Ordering removal, or destruction of unlawful food imports

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1.0 Purpose

The purpose of this document is to provide guidance to Canadian Food Inspection Agency (CFIA) inspection staff on the procedures to follow when ordering removal or destruction of an imported food commodity; suspending an application of forfeiture; and cancelling a notice to remove or destroy unlawful imports.

This document is intended to be used in conjunction with other CFIA guidance documents as referenced in section 3.0.

This guidance outlined below should be used when an inspector is deciding whether to order removal from Canada or destruction of an imported food.

2.0 Authorities

The inspection powers, control actions and enforcement actions authorized by the food legislations above are identified and explained in the Operational guideline – Food regulatory response guidelines.

3.0 Reference documents

4.0 Definitions

Unless specified below, definitions are located in either the:

5.0 Acronyms

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

6.0 Operational procedure

6.1 Determine if immediate control is required

When a non-compliant imported food is identified, the inspector determines if immediate control of the food is required by considering section 6.2.1 of the Food regulatory response guidelines and the Operational Procedure: Procedure for seizure and detention, authorizing movement and disposition.

6.2 Determine whether to order removal or destruction

When an inspector determines that an imported food is non-compliant, or was imported in contravention of the legislation, the inspector may use their discretionary authority to choose the appropriate response in order to mitigate the risk and respond to non-compliance. Depending on the scenario, the inspector may use inspector powers described in the Operational guideline – Food regulatory response guidelines to apply one of the following:

Factors that inspectors should consider when determining appropriate response include:

For example, if an inspector decides to order removal or destruction of an imported food that presents a risk of injury to human health, the provisions set out in SFCA ss.32(4) and ss.32(5) do not allow for the suspension of the application of forfeiture cancellation of the notice to remove or destroy, thereby eliminating any opportunity for corrective measures to be taken after the order has been issued.

If the inspector decides to order removal or destruction of the imported food as a response to the non-compliance, complete and issue the notice to remove or destroy unlawful imports to the importer, owner or the person having possession, control or care of the food (hereafter referred as "importer" or "owner"). Refer to section 6.3 – Completing the notice to remove or destroy unlawful imports.

If the inspector decides not to order removal or destruction, refer to the Operational guideline: Assessing, monitoring and documenting the disposition of non-compliant food.

6.3 Completing the notice to remove or destroy unlawful imports

Complete the template "Notice to remove or destroy unlawful imports" in Appendix 1. Provide detailed information for all the listed fields. Determine who will receive this notice (importer or owner or person having possession, care or control of the food in Canada) and address it to the appropriate person in Canada. For non-resident importers, the notice must be addressed to the owner or the person having possession, control or care of the food in Canada. Consult the Safe Food for Canadians Licence Registry to obtain the most updated address for the importer. Sign and date the notice and attach any documents required.

6.4 Delivering the notice to remove or destroy unlawful imports

Once the template is completed, deliver the notice in one of the following ways:

Registered mail is a delivery service to customers who require proof of mailing and/or proof of delivery and provides shipment tracking information.

6.5 Follow up

Follow up with the importer or owner to ensure they received the notice to remove or destroy unlawful imports, understand it and what is their response to the notice. Follow up may occur anytime between the date the notice was sent and the date specified on the notice or 90 days from the date the notice was sent (if no date specified). However, follow up should be done as soon as possible.

6.5.1 Removal of unlawful food imports from Canada

For unlawful foods that will be removed from Canada:

For meat shipments, in addition to the steps above:

Meat shipments being removed from Canada may require a CFIA seal. Seal application should be based on requirements of the Foreign Competent Authority (FCA). Refused/returned shipments of food (other than meat) may or may not require a seal on the returned shipment based on the requirements of the receiving country.

6.5.2 Destruction of unlawful food imports

The authority to order destruction of food applies only if removal is not possible. If removal of the unlawful food is not possible, the importer or owner must be able to demonstrates that:

All costs related to the destruction are at the importer or owner's expense. The destruction may or may not be conducted under an inspector's supervision. Considerations listed below can help the inspector in this decision. Animal and plant health waste disposal requirements may apply.

If removal of the unlawful food is not possible, a CFIA inspector should:

Note: a food that is seized or detained, cannot be released from detention prior to being removed or destroyed. Inspectors may authorize the movement of the food to the port of exit or destruction site, but the food must remain under detention.

6.5.3 Voluntary Forfeiture of unlawful food imports

The importer or owner of the imported food may consent to forfeit a thing that was seized. This is considered a voluntary forfeiture [(SFCA s.35, FDA s.27(1), HAA 46(2)]. Refer to section 6.2.6 forfeiture of a thing (automatic, by consent or by Minister's election) of the Operational guideline – Food regulatory response guidelines.

6.5.4 Importer or owner does not take any action within the date specified on the notice to remove or destroy unlawful imports or within 90 days (if no date was specified)

If no action is taken by the importer or owner within the time specified on the notice or if no period was specified, within 90 days after the date on which the notice was delivered or sent, the food commodity is automatically forfeited to her Majesty in right of Canada and may be disposed, as the Minister may direct [(SFCA s. 32(3), FDA s.27.2 (3) or HAA s.18 (3)]. Refer to section 6.2.6 forfeiture of a thing (automatic, by consent or by Minister's election) of the Operational Guideline – Food regulatory response guideline.

When a food is forfeited to her Majesty under SFCA s. 32(3), FDA s.27.2 (3), or HAA s. 18(3), the Crown becomes owner of the food and may take possession and move the food to a different location. The food may remain at the location of the regulated party only if they consent to store the food at that location until further action is taken.

There is no specific mechanism set out in the legislation regarding disposal of a forfeited food. The Minister has the discretion to decide how to dispose of a thing after it has been forfeited. The authority to dispose forfeited food is delegated to the Inspection Manager and the Director of Operations.

While the disposal of the food is at the expense of the regulated party, there is no legal authority that would compel the regulated party to dispose of the food on the Crown's behalf.

Inspectors should refer to the Operational guideline – Food regulatory response guidelines prior to a forfeiture taking effect.

6.6 Suspending application of forfeiture

An inspector may suspend the application of forfeiture under the SFCA s.32(4), FDA s.27.2(4), or HAA s.18(4).

The suspension of forfeiture must be initiated prior to the date on which the forfeiture is automatically triggered. This is the date specified on the notice to remove or destroy unlawful imports or if not date is specified, 90 days after the day the notice was delivered or sent. Once the application of forfeiture is suspended, the notice to remove or destroy is still valid, but the food is not forfeited to her Majesty.

Note: while suspension is initiated earlier, it will only have legal effect once the notice to remove or destroy unlawful imports (or 90 days) has expired. Forfeiture only occurs once the notice to remove or destroy has expired.

Following suspension of the application of forfeiture, the importer or owner of the food is given an opportunity to bring the food into compliance. The duration of suspension will be determined by the inspector based on the details of the case. Prior to suspending the application of forfeiture, the inspector must be satisfied that the requirements of SFCA s.32(4), FDA s. 27.2(4), or HAA s.18(4) are met.

When determining to suspend an application of forfeiture, consider the factors in Table 1.

Once it is determined to suspend the application of forfeiture:

If the food is not brought into compliance by the end of the suspension period, and the notice to remove or destroy unlawful imports (or 90 days) has expired, it will automatically be forfeited to her Majesty and may be destroyed at cost to the importer or owner.

After the food is brought into compliance and before the expiry date of suspension, if the inspector is satisfied that requirements of SFCA s.32(5), FDA s.27.2(5), or HAA s.18 (5) are met, the inspector can move to cancel the notice to remove or destroy unlawful imports.

6.7 Cancelling the notice to remove or destroy unlawful imports

After the importer or owner of the food, to whom the notice to remove or destroy unlawful imports was issued, has brought the food into compliance, and the inspector is satisfied that the requirements of SFCA s. 32(5), FDA s. 27.2(5), or HAA s.18(5) are met, the inspector may cancel the notice.

Note: it is not necessary to suspend the forfeiture of the application, before cancelling the notice to remove or destroy unlawful imports. The inspector may cancel the notice without suspending the forfeiture of the application, only after the requirements of SFCA s.32(5), FDA s. 27.2(5), or HAA s.18(5) are met.

If the notice is cancelled following the suspension of application of forfeiture:

If the notice is cancelled without suspending the application of forfeiture:

When determining to cancel a notice to remove or destroy unlawful imports, consider the factors in Table 1.

Once it is determined to cancel a notice to remove or destroy unlawful imports:

Table 1 – Factors to consider when determining to suspend an application of forfeiture (SFCA s.32(4)) or to cancel a notice to remove or destroy unlawful imports (SFCA s. 32(5))
Factors to consider Impact on application of SFCA ss.32(4) or ss.32(5)

Eligibility and origin

The food is not sourced from an approved country, establishment, region harvest area/growing area, for example:

  • food was imported by a non-resident importer located in a country that does not qualify for NRI licence [SFCR 12]
  • shellfish harvested from unapproved area and meat sourced from an unapproved establishment

The food is prohibited entry into Canada, for example:

  • Puffer fish, live freshwater mitten crab, meat products or live or raw shellfish that are not subject to Part 7 of SFCR.
 Suspension of application of the forfeiture or cancelling the notice to remove or destroy unlawful imports is not applicable because the non-compliance cannot be corrected.

Harm

The imported food commodity, presents a risk of injury to human health

Suspension of application of the forfeiture or cancelling the notice to remove or destroy unlawful imports is not applicable because ss.32(4)(a) or ss.32(5)(a) are not met. Table note 1

Regulatory requirements

The food was imported without a valid licence

The food was imported by a licence holder who does not have a written preventive control plan (PCP) to import

 The decision to suspend the application of forfeiture or cancel the notice to remove or destroy unlawful imports should be made based on the level of harm, history and intent of the importer, as described in the SRRP. Further consideration should be made based on specific program direction (as applicable)

Compliance history and intent

The importer has a history of importing non-compliant food

There is an indication that the importer was aware of the requirements but did not meet them

The inspector believes that the importer did not declare an imported shipment, or parts thereof, in order to circumvent an inspection, certification, permit, or payment of a fee

 The decision to suspend the application of forfeiture or cancel the notice to remove or destroy unlawful imports should be made based on the level of harm, history and intent of the importer, as described in the SRRP. Further consideration should be made based on specific program direction (as applicable)

6.8 Communicating information related to shipments ordered removed or destroyed

Notify the AOS of all shipments of imported foods for which a notice to remove or destroy unlawful imports was issued, and the food was removed from Canada or destroyed. For meat related issues, the AOS notifies the Food Import Export Division (FIED) via MPDImport@inspection.gc.ca email account. For issues related to all other foods, the AOS notifies FIED via cfia.foodimport-alimentsimportes.acia@inspection.gc.ca.

The AOS forwards all the following information to the FIED:

FIED may request additional information/documentation from the AOS and will make the decision, on a case-by-case basis, whether to report the import violation to the Foreign Competent Authorities of the exporting country.

6.9 Recording inspection results

For inspections documented in the Digital Service Delivery Platform (DSDP):

If the import inspection is triggered by the Import control tracking system (ICTS), enter inspection results in ICTS.

Note: a "Record of actions to remove non-compliant imported food from Canada" must be completed for all shipments of food that are removed from Canada or destroyed (including voluntary removal or destruction of unlawfully imported food) whether or not a notice to remove or destroy unlawful imports has been issued to the importer or owner of the food. This ensures that an accurate history of non-compliance is kept on file.

If the foreign competent authority of the country where food is being sent requires a copy of the notice to remove or destroy unlawful imports, then a notice must be issued for voluntary returns of unlawful imports to satisfy the importing country requirements. If they are voluntarily retuning a product that has not been found to be unlawfully imported, then a notice to remove or destroy cannot be issued.

7.0 Appendices

For general inquiries related to this Operational Guidance Document, please follow established communication channels, including submitting an formulaire électronique de demande de suivi (e-RAF).

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