Products Of Ottawa, 2009-10 Edition – for Sep. 2, 2010

The third session of the 40th Parliament is adjourned until Sept. 20. What are the changes to federal food law since last summer? Here is a brief selection:


Following up on the recommendation of its listeria investigator, on March 31, 2010, Agriculture Minister Gerry Ritz finally announced he intends to proceed with appointing the board that is required by Section 10 of the act but has remained dormant for nine years. The Canadian agriculture and food trade associations should be clamouring to have representation on the 12-person board. This is an important accountability mechanism that could have made a real difference in the last nine years.


Under the leadership of Minister Jean-Pierre Blackburn, the government is again reviewing the Product of Canada issue. The clumsy consultation is trying to limit the opt ions to exempt ing specific ingredients such as sugar, vinegar and salt. This is a mistake. The solution is clear: adopt the 85 per cent rule for Product of Canada, and set up a process to recognize Grown in Canada to help local farmers.


Health Canada (HC) couldn’t ignore the energy drink regulatory mess any longer. The old rule to allow caffeine to be added only to “cola-type” beverages drove over 30 companies to have their beverages “regulated” as natural health products. With all the cows well out of the barn, HC finally announced that it would immediately allow caffeine and caffeine citrate in carbonated soft drinks at a maximum permitted level of 150 ppm in the finished product. With the new food fortification rules still stalled, what are they going to do about the vitamin-enriched waters?


On May 31,2010, HC announced that it will now allow phytosterols to be added to certain foods at the level of one gram per reference amount and serving size. This

decision was not a surprise, as 34 countries already allow this. What was most surprising was the agreement to allow companies to make the health claim that “plant sterols help lower cholesterol.” For years HC has insisted that such claims were drug claims and would require at a minimum a regulation allowing for a new disease risk-reduction claim. If this signals a new interpretation of HC’s regulatory flexibility, it could be the most dramatic reform of food law.


There is still no progress on the promised modernization. Even HC admits the current process is indefensible. Maybe the same lawyer

at HC who approved the new approach to phytosterols can be recruited to provide a regulatory change to allow for administrative changes to the additive tables. The current sclerotic system continues to undermine innovation, investment and competitiveness.


Consultations are ongoing on melamine, acrylamide policy, allergen policy, sodium reduction, trans fats, new policy on flavours labelling, health claims (again!), and food fortification (again?). We got new guidance on probiotic claims, listeria testing, food-like natural health products and lots more.

The dozen federal statutes enforced by the CFIA form the basis of thousands of pages of regulations but, as this year demonstrates again, these formal rules are just the tip of the iceberg. Just because there was no legislation and few formal regulatory changes doesn’t mean that it hasn’t been a busy year on the soft law front, as public servants issue their directives, guidelines, policy interpretations, manual changes, prosecutions, rules and new standards. Who needs Parliament and cabinet committees?

– Ronald L. Doering, a past president of the Canadian Food

Inspection Agency, practises food law in the Ottawa offices of Gowling Lafleur Henderson LLP

and can be reached at Ronald. [email protected]


Canadianagricultureandfoodtradeassociations shouldbeclamouringtohaverepresentation ontheCFIA’s12-personadvisoryboard.


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