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

Although the Safe Food for Canadians Regulations (SFCR) came into force on January 15, 2019, certain requirements may apply in 2020 and 2021 based on food commodity, type of activity and business size. For more information, refer to the SFCR timelines.

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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 guidance documents as referenced in Section 3.0.

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

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 Determining if removal or destruction is appropriate

When an imported food is determined to be non-compliant, or the food was imported in contravention of the CFIA acts and regulations, an inspector may order that the food be removed from Canada [SFCA s.32 (1) or FDA s.27.2 (1) or HAA s.18 (1)]. The inspector powers under the said legislations are discretionary, and this procedure has been developed to help inspectors in consistent application of inspector powers.

Once a non-compliant imported food is identified:

If removal or destruction is the most appropriate response to the non-compliance, complete and issue the Notice to remove or destroy as per 6.2 to the importer, owner or the person having possession, control or care of the food (hereafter referred as "importer" or "owner").

If removal or destruction is not the most appropriate response, refer to the Operational guideline: Assessing, monitoring and documenting the disposition of non-compliant food (internal access only – RDIMS 11350687) for specific considerations that must be met towards disposition of the food.

6.2 Completing the notice to remove or destroy

Complete the template 'Notice to Remove or Destroy Unlawful Imports' in Appendix 1. 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.

6.3 Delivering the notice to remove or destroy

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

6.4 Follow up

Follow up with the importer or owner to confirm receipt and 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).

6.4.1 Importer or owner chooses to remove the food from Canada

If the importer or owner chooses to remove the food from Canada:

For meat shipments, in addition to the steps above:

Meat shipments returning without the CFIA seal will be refused entry at the destination by 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.

6.4.2 Importer or owner chooses to destroy the food

If the importer or owner chooses to destroy the food they must be able to demonstrate 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. Animal and plant health waste disposal requirements may apply.

If the importer or owner chooses to destroy the food, a CFIA inspector will:

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.

6.4.3 Importer or owner chooses to forfeit the food

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) in the Operational Guideline – Food regulatory response guidelines.

6.4.4 Importer or owner does not take any action within the date specified on the notice 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 maybe 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) in 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 are strongly advised to consult with the Enforcement Investigation Services (EIS) prior to a forfeiture taking effect.

6.5 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 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 (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 2.

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 (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.

See examples of unlawful imports and application of SFCA 32 in Appendix 3.

6.6 Cancelling the Notice to remove or destroy

After the importer or owner of the food, to whom the Notice 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. 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, consider the factors in Table 2.

Once it is determined to cancel a Notice to remove or destroy:

Table 2 – Factors to consider when determining to suspend an application of forfeiture or to cancel a Notice to remove or destroy
Factors to consider If Then

Eligibility

The food is not eligible for import into Canada; or the food is prohibited entry into Canada

Suspension of application of the forfeiture or cancelling Notice to remove or destroy is not an option.

Origin

The food originates from a country/establishment that is not approved for export to Canada

Suspension of application of the forfeiture or cancelling Notice to remove or destroy is not an option.

Risk

The imported food, animal or thing presents a risk of injury to human health or animal health, plant health or economy

Suspension of application of the forfeiture or cancelling Notice to remove or destroy is not an option.

Regulatory requirements

Importer requires a licence or permission to import; and/or
Importer requires to 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 should be made based on program direction and in consideration of other factors in this table. Refer to Appendix 3 for examples of non-compliances and application of SFCA 32.

Compliance history

The importer has a history of importing non-compliant food,
There is an indication that importer was aware of the requirements but did not meet them,
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 should be made based on program direction and in consideration of other factors in this table. Refer to Appendix 3 for examples of non-compliances and application of SFCA 32.

See examples of unlawful imports and application of SFCA 32 in Appendix 3.

6.7 Communicating information related to shipments removed or destroyed

Notify the AOS of all shipments of imported foods for which a Notice to remove or destroy was issued, and the food was removed from Canada or destroyed. The AOS will notify the Food Import Export Division (FIED) via cfia.mpdimport-importationdpv.acia@canada.ca email account.

The AOS will forward 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.

6.8 Recording inspection results

Once the inspection tasks are completed, enter the results of the inspection along with copies of all supporting documents (for example; copies of Notice to remove or destroy, records of actions to remove non-compliant imported food from Canada, etc.) in either Digital Service Delivery Platform (DSDP) for non-meat commodities or in the Compliance Verification System (CVS) for meat products.

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) when a Notice to remove is not issued to the importer or owner of the food. This will ensure that an accurate history of non-compliance is kept on file.

If the foreign competent authorities of the country where food is returned require a copy of the Notice to remove, then a notice must be issued for voluntary returns to satisfy the importing country requirements.

7.0 Appendices

For general inquiries related to this Operational Guidance Document, please follow established communication channels, including submitting an electronic Request for Action Form (e-RAF).

Appendix 3 – Examples of unlawful imports and application of Section 32(4) and (5) of the SFCA

Examples of non-compliance Is it reasonable to suspend the application of forfeiture SFCA 32(4) Is it reasonable to cancel the order to remove or destroy SFCA 32(5)

Import declaration not submitted prior to or at the time of import [SFCR 13(1)]

Food other than meat products

Yes, if the inspector believes that the importer will request an authorization from the Minister to submit import information after the import, and all conditions of SFCA 32(4) are met

Yes, if the importer provided the information within the time frame specified by the Minister and all conditions of SFCA 32(5) are met

No, if the food was smuggled (not included in the declaration)

No, the food is not legally imported

Meat products

No, import information for meat products must always be submitted prior to or at the time of import [SFCR 13(3)]

No, providing import information after import is not allowed for meat products

Import declaration made prior to or at the time of import but some of the required information is missing [SFCR 13(1)]

Food other than meat products

Yes, if the inspector believes that the importer will provide the missing information, and all conditions of SFCA 32(4) are met.

Yes, if the importer provided the missing information and the inspector is satisfied that all conditions of SFCA 32(5) are met

Meat products

Yes, if the inspector believes that the importer will provide the missing information (not health and safety related), and all conditions of SFCA 32(4) are met.

Yes, if the importer provided the missing information and the inspector is satisfied that all conditions of SFCA 32(5) are met

A food (not imported under section 18) does not comply with the standard set out in the Standard of Identify Document [SFCR 9(1)]

Food other than meat

Yes, if the inspector believes that the importer will request and obtain an exemption for test marketing, and all conditions of SFCA 32(4) are met

Yes, if the importer was granted with a test market authorization and all conditions of SFCA 32(5) are met

The food is imported from countries/ establishments not approved for export to Canada or the food is not permitted in Canada, regardless of its origin

All food

No, the food is not eligible for import. Non-compliance cannot be corrected and the requirements of SFCA 32(4)(d) are not met

No, the non-compliance cannot be corrected. Requirements of SFCA 32(5)(d) are not met

Consumer prepackaged food (not imported under section 18) does not meet the labelling requirements

Food other than meat

Yes, if the inspector believes that the importer will correct the non-compliance and all conditions of SFCA 32(4) are met

Yes, if the food is brought into compliance within the applicable time frame and all conditions of SFCA 32(5) are met

Meat products

No, program direction only allows correction to minor errors on shipping cartons

No, program direction is not to allow any correction of labels for consumer prepackaged products

A non-compliant food (imported under SFCR 18) is not further prepared within 3 months [SFCR 18(1)(b)(i)

Food other than meat

Yes, if the food was labelled for "further preparation only", the importer has submitted a request for extension and all conditions of SFCA 32(4) are met

Yes, if the importer was granted with an extension, and brought the food into compliance (further processed), and all conditions of SFCA 32(5) are met

Meat products

No, import under SFCR 18 is not available to meat products [SFCR 18(1)(c)

No, import under SFCR 18 is not available to meat products [SFCR 18(1)(c)

Food was imported without a licence by a Canadian Importer or Non-resident Importer (NRI) located in a country that qualifies for NRI licence [SFCR 12]

All food

Yes, if:

  • The importer does not require a written PCP; or
  • The importer has a written PCP in place but has not applied for a licence
  • The importer does not have a history of importing non-compliant food
  • The food has been declared before or at the time of import
  • The requirements of 32(4)(a) to (d) are met;
  • The food is eligible for import
  • The inspector believes that the importer will apply for a licence to import

Yes, if the importer applied and obtained a licence; and all conditions of 32(5)(a) to (d) are met

Food was imported without a licence by a Non-resident importer located in a country that does not qualify for NRI licence [SFCR 12]

All food

No, an NRI licence can only be issued to importers located in countries approved by the CFIA. Conditions of SFCA 32(4)(c) cannot be met

No, the conditions of SFCA 32(5)(c) and(d) cannot be met

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