Operational Procedure: Procedure for seizure and detention, authorizing movement and disposition

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1.0 Purpose

The purpose of this document is to provide procedures to Canadian Food Inspection Agency (CFIA) Inspection staff on conducting the following activities related to a food product or thing:

  • seize and detain
  • authorize movement or alteration while seized and detained
  • determine disposition of a thing seized and detained (such as release, destruction, forfeiture, removal from Canada)

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

These procedures may be applied to control a thing that is non-compliant or was used or obtained in contravention of the Safe Food for Canadians Act (SFCA) or the Food and Drugs Act (FDA). As described in the Operational guideline : Food regulatory response guidelines, these procedures are not applied when ordering that a thing not be moved under SFCA 24(2)(d) while an inspection is being conducted to determine compliance.

2.0 Authorities

3.0 Reference documents

4.0 Definitions

Unless specified below, definitions are located in either the:

Thing
For the purpose of this procedure, a thing is a food commodity, article, item or anything to which a provision of the act applies or that was used in or obtained by the contravention of a provision of the act. A place such as a room is not considered as a thing.

5.0 Acronyms

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

6.0 Operational procedure

Unless otherwise specified, the term "thing" is used throughout the procedure as a general term to indicate items that may be seized by inspectors designated under the SFCA or FDA. Unless otherwise specified, the actions and options identified in this guidance may be applied equally to things seized under either the SFCA or FDA.

6.1 Procedure to seize and detain a thing

  1. Identify the thing to be seized and confirm the conditions under which it can be seized:
    • for a seizure under the SFCA, the inspector must have reasonable grounds to believe the thing meets 1 of the following conditions:
      • has been used in the contravention of any provision of the SFCA or SFCR
      • is something that is not in compliance with SFCA or SFCR
      • has been obtained by a contravention of a provision of the SFCA or SFCR
    • for a seizure under FDA, the inspector must believe on reasonable grounds that the thing is an article by means of, or in relation to which any provision of this act or the regulations has been contravened
    • the thing being seized must be 1 of the following:
      • a food
      • anything used for the manufacture, preparation, preservation, packaging or storing of a food
      • any labelling or advertising material related to food
  2. If a thing meets the conditions for seizure of both SFCA and FDA, consider the following factors to select the more appropriate act:
    • which inspection powers (SFCA or FDA) were used to conduct the inspections that determined the thing was non-compliant
    • the level of trade of the thing (for import, export and interprovincial trade, SFCA should be considered)
    • location and ownership of the thing at the time of seizure
    • the nature of the most pertinent non-compliance(s) associated with the thing
  3. Ensure the things are properly stored at the time of seizure by considering the following:
    • the thing (or parts of the thing) may need to be consolidated, segregated or moved to an appropriate storage location where it can be properly identified and securely maintained for the duration of the period of detention at the owner's expense
    • in the case of a food product, the product should be stored in a location and storage condition suitable for the food
    • refrigerated or frozen product should be stored in a location capable of maintaining the product at the required temperature for the duration of the period of detention
    • at the time of seizure and when dealing with something seized, the inspector may:
      • move the thing to an appropriate storage location on notice to the owner or person in possession, care or control of the thing
      • order the movement of the thing to an appropriate storage location
    • if a seized thing must be moved to ensure proper storage, refer to section 6.4.3 Ordering the movement, disposal or storage of a seized thing
    • if more than 1 thing needs to be seized, they should be properly separated, sorted and marked so that each can be clearly identified on the Notice of detention and tag
  4. Follow the instructions on the Notice of detention Form 3256 (accessible only on the Government of Canada network) to complete the form
    • ensure all fields are completed as accurately as possible
    • state the section of the act that authorizes the inspector to seize the thing:
      • for SFCA, identify section 25
      • for FDA, identify paragraph 23(2)(l)
    • sign with a wet signature
    • if more than 1 thing needs to be seized on the same grounds:
      • ensure that all these things are adequately described on the Notice of detention form
      • if the space provided on the form is insufficient, complete another Notice of detention form or add an appendix and refer it to the original Notice of detention and vice versa (the exact title of the appendix should appear in the section of the form that requires the addition of the appendix and the number of the Notice of detention should appear on the appendix)
      • keep all related documents (forms, annexes) together at all times
  5. Complete the detention tag portion of a Notice of detention Form 3256 (accessible only on the Government of Canada network) which is used to identify the thing that is seized and detained
  6. The tag must include the following mandatory information:
    • the expression "under detention" and the word "retenu", in capital letters
    • the detention tag number
    • a description of the thing
    • the reason for the seizure and detention
    • the date of the seizure and detention
    • the inspector's name and wet signature
  7. If the thing being seized is spread over a large area, such as in the case of a large lot of product, it is good practice to use more than one detention tag may be used
    • print copies of the tag portion of the Notice of detention Form 3256 (accessible only on the Government of Canada network) bearing the same number
    • record the location of the detention tag(s) and point out to the person receiving the Notice of detention
    • take photographs of the items seized and the locations of the affixed detention tag(s)
  8. Attach the corresponding detention tag(s) in a prominent place on the thing being seized and detained
  9. Official yellow tape Form 4561 (accessible only on the Government of Canada network) may be used to help identify the items seized and detained and to attach the detention tag
  10. As soon as feasible after a thing has been seized and detained, deliver the Notice of detention in person or by registered mail to either:
    • the owner of the thing, or
    • the person having possession, care or control of it at the time of its seizure
  11. When delivering the Notice of detention to the person having possession, care or control of the thing, the inspector should read the warning to that person that the thing must not be moved, sold or altered without the authorization of an inspector (SFCA 28 and FDA 24(2))

6.2 Authorizing the movement or the alteration of a thing while seized and detained

6.2.1 Authority to move

To grant permission to move the thing seized and detained to an another place within the same facility, to another physical address or to a location outside of Canada, complete the "Authority to move thing under detention" section of the Notice of detention. If the request includes altering the thing, please also refer to 6.2.2.

  1. Review the written request to move the thing submitted by the owner or person having possession, care or control of the thing to be moved
    • confirm that the new location and conditions of storage are suitable for the nature of the thing seized and detained
    • if the thing will be staying in Canada, confirm that CFIA inspectors will still have access to the thing at the new location (for example, it will not be moved to a dwelling-house)
  2. To authorize the movement of the thing, amend the Notice of detention form by completing the "Authority to move thing under detention " section with the following information:
    • the full address where the thing is authorized to be moved
    • the exact location at that address where the thing will be stored
    • the inspector's signature can be wet or digital
  3. Provide a copy of the amended Notice of detention to the owner or person having possession, care or control of the thing (the copy can be sent by email)
  4. In the case of a partial move, specify the quantity and description of the things that are authorized to be moved
  5. If space is insufficient in the "Authority to move" section, attach an appendix and refer it to the original Notice of detention and vice versa (the exact title of the appendix should appear in the section of the form that requires the appendix and the number of the Notice of detention should appear on the appendix)
  6. Verify that the thing has been properly relocated to the new storage place and that the detention tags are still affixed to it
  7. If feasible, manually edit and initialize the detention tags to reflect the new location
  8. If the thing has been moved to a location outside the inspector's area of responsibility, coordinate with the receiving region/inspection staff to ensure continued oversight of the thing seized and detained

6.2.2 Authority to alter

To grant permission for the thing to be altered (for example, disposed, destroyed, reworked, re-labelled, repackaged), complete the "Authority to alter the thing under detention" section of the Notice of detention. Before authorizing a thing to be altered, consult the Operational Guideline: Assessing, monitoring and documenting the disposition of non-compliant food. Please refer to 6.2.1 to complete the "Authority to move thing under detention" as well, if this is the case.

  1. Review the written request to alter the thing submitted by the owner or person having possession, care or control of the thing to be altered and:
    • confirm that the authorized activity on the seized things are suitable, achievable, conducted in an adequately licensed facility, if applicable, and that it will result in correcting the non-compliance
    • confirm that CFIA inspectors will have access to the location in order to witness the activity, if appropriate, and that this location is suitable (that is the establishment is licensed for the activity)
  2. To authorize the alteration of the thing, amend the Notice of detention form by completing the "Authority to alter the thing under detention" section with the following information:
    • the description of the activity that is authorized to be done to the thing
    • the exact location where the thing will be altered
    • the inspector's signature can be wet or digital
  3. Provide a copy of the amended Notice of detention to the owner or person having possession, care or control of the thing (the copy can be sent by email)
  4. In the case of a partial alteration, specify the quantity and description of the things that are authorized to be altered
  5. If space is insufficient in the "Authority to alter" section, attach an appendix and refer it to the original Notice of detention and vice versa (the exact title of the appendix should appear in the section of the form that requires the appendix and the number of the Notice of detention should appear on the appendix)
  6. When feasible, verify that the authorized activity on the thing has been properly done and that detention tags are still affixed to it (re-apply detention tags as needed)
  7. If the thing has also been moved to a location outside the inspector's area of responsibility, coordinate with the receiving region/inspection staff to ensure continued oversight of the thing seized and detained

6.3 Responding to the unauthorized movement or alteration of a thing seized and detained

Moving or altering a thing seized and detained under the SFCA (section 28) or the FDA (subsection 24(2)) without authorization from an inspector is a regulatory violation and should be responded to as soon as possible. The inspector should carry out the following inspection activities at the place where the thing was seized and detained, in order to properly document the non-compliance:

  • carry out a visual inspection of the premises where the thing was seized and detained, to determine whether it has simply been moved inside the building
  • take note of the date of the report, who was present and any other relevant information
  • take photos (even if the thing that was seized and detained is no longer present)
  • look for the detention tag originally affixed to the thing that was seized and detained
  • interview the person having possession, care or control of the thing to obtain as much information as possible about what happened, such as:
    • where the thing is currently located
    • what means of transport was used to move it
    • who took the decision to move it despite the seizure and detention
    • when did it happen
    • for what reasons
    • ask for copies of sales invoices, inventories, records and any other documents related to the broken seizure and detention

Moving or altering a seized and detained item without the inspector's authorization constitutes a non-compliance that is part of the horizontal enforcement priorities. An inspector non-compliance report (INCR) should be completed and submitted to the Enforcement and Investigation Services (EIS). The selection of the appropriate enforcement action should be guided by the application of the Standard regulatory response process and the Operational Procedure – Enforcement and investigation file referral standard (EIFRS) (available only on the Government of Canada network – 18266484).

If the inspector finds that the thing that had been seized and detained has been or could have been distributed, including exported, and has reason to believe that the food may pose a risk of injury to human health, the inspector should refer to the Food incident response process (FIRP) and notify the regional recall coordinator or the area recall coordinator, as applicable.

6.4 Release of a thing that has been seized and detained

6.4.1 Release of a thing seized and detained

  1. Determine if the thing seized and detained may be released based on 1 of the following conditions:
    • the inspector is satisfied that all the provisions of the act and the regulations that apply with respect to the thing seized and detained have been complied with
    • a court or tribunal has ordered the thing to be returned to the owner or person having possession, care or control
    • a release may also be made if the reasonable grounds for the original seizure and detention are no longer present
  2. To release a thing from seizure and detention:
    • complete a Notice of Release from detention Form 3257 (accessible only on the Government of Canada network)
    • provide the owner or person having possession, care or control of the thing with the completed release form
    • wet or digital signature can be used for the release
    • the notice of release from detention can be sent by email
    • remove all detention tags and CFIA tape, if used
    • update case file and include a copy of the release form
    • proceed with any necessary follow-up inspection activities
  3. In case of partial release, follow step 1 and 2 above and:

6.4.2 Other options for the handling of a thing seized and detained

If a thing seized cannot be released (conditions of 6.4.1 not met), determine how the thing can be otherwise disposed.

Table 1: Determining options for handling of a thing seized and detained
Scenario Suggested options for inspector action

the thing is perishable

or

in the inspector's opinion, the thing presents a risk of injury to human health and disposal is necessary to respond to the risk
  • the inspector may dispose of the thing or order disposal of the thing seized and detained
  • see section 6.4.3, below
the owner or person having possession, care or control of the thing requests permission to dispose of the thing rather than bring it into compliance
  • the inspector may authorize the thing seized and detained to be disposed and an inspector should witness the disposal
the thing is an imported food and does not meet the requirements of the act or regulations or was imported in contravention of the act or regulations

or

  • if removal is not possible, the inspector may order destruction of the food
  • see section 6.4.3

the thing is an imported food that has not been removed or destroyed within the time specified on notice to the owner, or otherwise, within 90 days

or

within 60 days of seizure, the owner of the thing or person entitled to have it has not been identified (SFCA 34(1)(a))

or

within 60 days of release from seizure, the owner of the thing or person having possession, care or control of it, does not claim it (SFCA 34(1)(b))

6.4.3 Ordering the movement, disposal or storage of a seized thing

Inspectors have the authority under SFCA 29 b) and c) to order the movement, disposal or storage of a thing that has been seized and detained. Under SFCA 29 c), an inspector may order the disposal when the thing is perishable or the inspector is of the opinion that the thing presents a risk of injury to human health and that its disposal is necessary to respond to the risk. If used, these orders are at the expense of the owner or person in possession, care or control of the thing.

When ordering the disposal, movement or storage of a thing, follow these steps:

  • prior to ordering the disposal, movement or storage of a thing, verify that the action will not be a contravention of Health of Animals Regulations or Plant Protection Regulations or otherwise cause a risk to the animal or plant resources or the environment
  • provide the owner or the person having possession, care or control of the seized thing a notice in person or by registered mail that the thing must be moved, disposed or stored in a certain manner
  • include any conditions to be met such as CFIA presence when the order is being carried out
  • record all communications with the regulated party, including the time, date and place of such communications
  • if the regulated party agrees to proceed with the ordered action, follow-up inspection should be conducted in order to confirm that the order was carried out
  • if the owner or the person having possession, care or control of the seized thing refuses to comply with the order, then consider other control options such as movement, disposal or storage by the CFIA (SFCA 29 a) or c) or initiating the forfeiture process for the thing, if applicable
  • consult Operational guideline – Food regulatory response guidelines and the Standard regulatory response process for the available control and enforcement options

6.5 Correction of a Notice of detention

If the Notice of detention Form 3256 (accessible only on the Government of Canada network) form has been given to the owner or person having possession, care or control of the thing and there is an error on the form, determine the appropriate way to correct the error. These corrections are provided to the extent that the on-site seizure and detention was made without error (the right thing and the amount of thing was seized in the right place. If there was also an error on the on-site seizure and detention, the full correction option should be selected.

Table 2: Error type on the Notice of detention and appropriate correction
Error type Example Recommended type or correction
Minor

Minor error in the description of the thing seized or detained (wrong lot, common name, quantity) without preventing the identification of the thing

Partial correction

  • Take back all copies of the notice of detention and on each copy:
    • cross out the incorrect word(s) without hiding them
    • correct the error by writing the right information above the crossed-out word(s)
    • initial and date the correction nearby
Major

Wrong act and/or regulation

Incorrect description of the thing seized or detained which makes identification impossible

Full correction

  • Issue a new Notice of detention, noting that it replaces the previous one
  • The original date of detention remains the same
  • Write at the bottom of the erroneous notice "this notice is replaced by notice xx" and give a copy to the owner or person having possession, care or control of the thing
  • Send a letter stating that the old notice is replaced by a new notice and that the product is still under detention
  • Change the detention tags on the seized item
  • Deliver the new Notice of detention and the letter in person or by registered mail

If in doubt at any time, the inspector may submit an electronic Request for Action Form (e-RAF) to obtain support in determining the appropriate correction. If the request is urgent, check the appropriate box when completing the e-RAF. For enquiries requiring an immediate response, within 1 business day, consider using the Fast-Track Process (accessible only on the Government of Canada network – RDIMS 9633088)

6.6 Follow-up on non-compliance

Apply the Standard inspection procedures (SIP) and the Food preventive control and traceability inspection – Compliance verification of a system or the Operational procedure: Food preventive control inspection – Implementation verification (as applicable) and any applicable commodity specific guidance to conduct any follow-up inspections necessary to determine if non-compliance associated with the thing seized and detained has been corrected.

If the non-compliance has not been corrected, consult the Standard regulatory response process and the Operational guideline – Food regulatory response guidelines to determine if licence actions or enforcement actions should be applied.

Follow-up inspection activities or the initiation of licence actions or enforcement actions can occur independent of the final disposition of the seized thing (for example, release, waste disposal/destruction, removal, forfeiture).

6.7 Documenting regulatory response actions

When all required regulatory response actions have been completed and are associated with inspections documented in the Digital service delivery platform (DSDP):

If there is no associated inspection case in DSDP but a food safety investigation was conducted then document the seizure details in the Issues Management system (IMS) by referring to the Business Rules of Use for the IMS (accessible only on the Government of Canada network) and the IMS User Manual (accessible only on the Government of Canada networks – RDIMS 1599661).

6.8 Considerations on reviewable decisions

A reviewable decision is a decision which can be reviewed by federal court. It includes only those that affect someone's legal rights, impose legal obligations and/or cause prejudicial effects. Notices of detention (SFCR 368) are examples of reviewable decisions. For reviewable decisions such as the notices of detention, a decision based on reasonable grounds should be made by the designated inspector using these tips:

  • get prepared – Ensure you have all the facts and relevant evidences, consider all applicable CFIA policies and guidance
  • be aware of the procedural fairness requirements – the decision maker is unbiased and the regulated party is properly informed and has the opportunity to be heard, where applicable
  • justify the decision – be transparent, for example, provide the authority under which you are acting, explain your decision
  • document the decision – record any documents and policies you have consulted and keep record of meetings, consultations

For general inquiries related to this operational guidance document, please follow established communication channels, including submitting an eRAF (accessible only on the Government of Canada network).

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