Joint Interim Policy Statement: Enforcement of Section 37 of the Food and Drugs Act as it pertains to the export of packaged food

November 27, 2023

Policy Statement

Health Canada and the Canadian Food Inspection Agency (CFIA) recognize that the food export regime under the Food and Drugs Act (FDA) does not align with the food export provisions set out under the Safe Food for Canadians Act (SFCA) and its Regulations (SFCR). This misalignment has resulted in unnecessary barriers for certain Canadian manufacturers who wish to produce packaged foods destined solely for sale in foreign markets (that is, for export only).

In light of this situation, and in discussion with Health Canada, the CFIA will prioritize enforcement of the food export requirements of the SFCA/SFCR until further notice. The CFIA will, however, continue to respond to export-related complaints under the FDA and will consider any enforcement action as appropriate.

Purpose and Scope

This document sets out Health Canada and the CFIA's joint policy position with respect to packaged foods manufactured in Canada and destined for export only, that is, not to be sold in Canada. The purpose of this joint interim policy statement is to ensure packaged foods destined for export only can continue to be manufactured according to the specifications and requirements of the country to which they are being exported while ensuring they continue to maintain a level of safety and quality that has been established under the export regime of the Safe Food for Canadians Act and SFCR.

This joint interim policy statement does not apply to packaged foods intended for sale in Canada.

Roles & Responsibilities

Health Canada: federal authority responsible for establishing standards, policies and regulations regarding, among other things, the safety and nutritional quality of all food sold in Canada, under the Food and Drugs Act and its Regulations.

Canadian Food Inspection Agency: federal authority responsible for the enforcement of the FDA as it relates to food, and the administration of the provisions of the FDA as it relates to food, except those that relate to public health, safety or nutritional quality. The CFIA is also responsible for the administration and enforcement of the SFCA/SFCR, which govern, among others, the inspection of food, their safety, their labelling, advertising, their import, export and interprovincial trade.

Manufacturers and Exporters: responsible for ensuring that their food products comply with applicable food legislation, policies, and standards.

Background

All food manufactured in Canada should be safe to consume whether it is intended to be sold domestically or internationally, subject to specified exemptions. Foods exported from Canada are subject to the requirements of both the FDA and the SFCA, as well as their respective regulations. Both legal regimes provide exemptions for the exportation of non-compliant foods provided specified conditions are met. For the FDA, these conditions are set out under section 37 of the Food and Drugs Act. For the SFCA, specific requirements for the exportation of non-compliant foods are set out in section 16 of the SFCR.

In 2016, amendments were made to section 37 of the FDA that, in effect, resulted in the full suite of protections under section 4, 5(1) and 7 that apply to foods intended for domestic consumption to also apply to foods manufactured solely for export even if the country to which the food products are being exported has differing requirements from Canada's. Prior to 2016, no such conditions on exports were in place and Canadian manufacturers could legally export foods produced in accordance with the requirements of the destination market.

The 2016 amendments to the FDA also misalign with the export requirements under the SFCA/SFCR. Brought into force in January 2019, the SFCR aligns with internationally recognized food safety and consumer protection requirements. The SFCA/SFCR requirements for export, including the conditions under section 16 for the export of non-compliant foods, facilitate international trade by helping to ensure that foods exported from Canada meet an acceptable standard of safety and quality, while also enabling Canadian manufacturers to produce foods for export that meet the technical specifications and requirements of the foreign markets where they are intended to be sold.

Health Canada and the CFIA have no concerns from a food safety perspective with food exports being primarily subject to oversight under the SFCA and SFCR rather than section 37 of the FDA.