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

On this page

• 1.0 Purpose
• 2.0 Authorities
• 3.0 Reference documents
• 4.0 Definitions
• 5.0 Acronyms
• 6.0 Operational procedure
  • 6.1 Determining if removal or destruction is appropriate
  • 6.2 Completing the notice to remove or destroy
  • 6.3 Delivering the notice
  • 6.4 Follow up
    • 6.4.1 Importer or owner chooses to remove the food from Canada
    • 6.4.2 Importer or owner chooses to destroy the food
    • 6.4.3 Importer or owner chooses to forfeit the food
    • 6.4.4 Importer or owner does not take any action within the date specified on the notice or within 90 days
  • 6.5 Suspending application of forfeiture
  • 6.6 Cancelling the notice to remove or destroy
  • 6.7 Communicating information related to shipments removed or destroyed
  • 6.8 Recording inspection results
• 7.0 Appendices

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

• Safe Food for Canadians Act (SFCA)
• Safe Food for Canadians Regulations (SFCR)
• Food and Drugs Act (FDA)
• Food and Drug Regulations (FDR)
• Health of Animals Act (HAA)
• Health of Animals Regulations (HAR)

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

• Operational guideline – Food regulatory response guidelines
• Operational procedure – Procedure for seizure and detention, authorizing movement and disposition
• Operational Guidance – Assessing, Monitoring and Documenting the Disposition of Affected Food Products Identified Through Food Safety Investigations, Including Recalled Products (internal access only – RDIMS 11350687)
• Industry guidance – Regulatory requirements – Trade
• Industry guidance – Overview – Importing meat products
• CBSA Certificate of destruction/ exportation – Form E 15
• International Waste Directive

4.0 Definitions

Unless specified below, definitions are located in either the:

• Safe Food for Canadians Regulations: Glossary of key terms
• Integrated Agency Inspection Model (iAIM) – Glossary of Terms (Annex F)
• My CFIA Glossary of Terms
• Standard regulatory response process (SRRP)

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:

• determine if immediate seizure and detention of the food is required and take appropriate action
  • determine if the most appropriate response is removal or destruction of the food
  • collect and review all pertinent information
  • consider the following factors:
    • immediate risk
    • importer's history of compliance
    • options available to bring the food into compliance
    • distribution
• the authority to order destruction of food applies only if removal is not possible.
• when non-compliances are linked to a food safety investigation or recall, assess the issue in consultation with the Office of Food Safety and Recall (OFSR).

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

• Deliver the notice in person to the owner or importer of the food [SFCA s.32(2), (HAA s. 18(2) ], or
• Send the notice by registered mail to the owner's, importer's address in Canada [SFCA s.32(2), (HAA s.18(2)], or
• Deliver in person or by any method that provides proof of delivery or by any prescribed methods [FDA s.27.2]
• For Non-resident importers without an address in Canada, the notice must be sent to the address of the owner or the person having possession, care or control of the food in Canada

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:

• complete sections 1 & 2 of form CFIA/ACIA 4320 Record of Actions to Remove Non-compliant Imported Food from Canada with applicable information
• provide the importer or owner with a copy of the completed form CFIA/ACIA 4320
• provide a copy of form CFIA/ACIA 4320 to the Area Operations Specialist (AOS)
• request the importer or owner to provide proof of exit from Canada. Examples of acceptable documents include:
  • a copy of the official bill of lading or airway bill of lading showing amounts, destination and carriers
  • document stamped by the Customs foreign authorities
  • notification from foreign country where food was returned to
  • Form E15 (certificate of destruction/exportation) from Canada Border Services Agency (CBSA)
• When the shipment is presented for removal, verify the information against the notice

For meat shipments, in addition to the steps above:

• affix the CFIA seal once the food is loaded in the transport conveyance
• enter the CFIA seal number in the appropriate field on form CFIA/ACIA 4320
• for imported meat from the USA that is refused entry and ordered to be removed:
  • email a copy of the "Notice to

    Director Import Export Programs
    Office of International Affairs
    USDA/FSIS Washington D.C – USReturnedExports@usda.gov

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:

• destruction of the food will not introduce any risk of contamination to the environment, animal, and food sources or cause injury to human or animal health
• destruction methods do not contravene any health of animal's acts or regulations

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:

• assess the method of disposal proposed by the importer or owner
• if required, consult with Supervisor, AOS or Operational Guidance Expertise (OGE) for an assessment of destruction method
• ensure animal products are destroyed in compliance with the International Waste Directive (if applicable)
• issue an authorization for movement of the food commodity [SFCA s.24(2)(d), FDA s.25 ( just for seized things)] If the food will be moved to a different location for destruction, refer to Operational procedure – procedures for seizure and detention, authorizing movement and disposition request the importer or owner to provide proof of destruction
• determine if the destruction of food should be witnessed by a CFIA inspector by considering the following;
  • was the non-compliance situation related to food fraud?
  • was the regulated party reluctant to destroy the non-compliant products?
  • is the regulated party able to provide a valid proof of destruction (for example: certificate of destruction from a waste company, pictures, insurance claims, landfill receipt, or videos of product being removed from package and disposed)?
  • is the product being disposed at an approved waste facility (for example: an international waste site)?
  • are there certain conditions that limit the inspectors ability to witness disposal such as accessibility of the site, distance, etc.

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.

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:

• complete the "Notice to suspend an application of forfeiture and/or cancel a Notice to remove or destroy unlawful import"^Footnote 1 template in Appendix 4
• attach a copy of the notice to remove or destroy that was issued to the importer or owner to the suspension notice
• deliver the notice and supporting attachments in person or send by email to the importer or owner of the food
• follow up with the importer or owner to ensure actions will be completed before the expiry date of suspension

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.

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

• ensure the notice is cancelled before the expiry date of the suspension period

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

• ensure the notice is cancelled within the period specified on the notice, if no period specified, the period that ends 90 days after the day on which the notice was delivered or sent

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:

• complete the "Notice to suspend an application of forfeiture and/or cancel a notice to remove or destroy unlawful import" template in Appendix 4
• attach a copy of the Notice to remove or destroy that was issued to the importer or owner to the cancelation notice
• deliver the Notice and supporting attachments in person or send via email to the importer or owner of the food to whom the notice to remove or destroy was issued

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:

• Official Meat Inspection Certificate (OMIC)
• Import Inspection Report (IIR) or inspection report
• Supporting documents and pictures
• Laboratory Sample Tracking System (LSTS) report

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.

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

• Appendix 1: Notice to Remove or Destroy Unlawful Imports (internal access only – RDIMS 11268152)
• Appendix 2: Record of Actions to Remove Non-Compliant Imported Food from Canada – (Form 4320)
• Appendix 3: Examples of unlawful imports and the application of SFCAs.32
• Appendix 4: Notice to suspend application of forfeiture or cancel a Notice to remove or destroy unlawful imports (internal access only – RDIMS 12198941)

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