FSMA in Canada

Our industry has been focused on FSMA (Food Safety Modernization Act) in the USA.  Granted it is a huge transition, and it affects food companies worldwide (at least any that ship food into the US), but there is another piece of legislation that affects Canadians, and anyone shipping into Canada.  That is the Safe Food for Canadians Act, which received Royal Assent on November 22, 2012.  Large portions of the legislation are not yet in force, but they will be.

Now, I am not a lawyer, but I did read the Act, and it reads fairly easily.  I’ll share some of its concepts over the next few blog posts.

Aside from the fact that it is 39 readable pages, and not full of run on sentences with generous use of “wherefore”, “heretofore” and “forthwith”, what really struck me is that it has teeth.

Fines may be a “cost of doing business” but most would not see years of imprisonment as such!

People who are convicted of contravening the Act can be subject to a fine of $5,000,000 and up to 2 years in prison.  If that contravention “knowingly or recklessly causes a risk to human health” the financial penalties are at the discretion of the court and up to 5 years in prison.  (Section 39 (3))

The Act also deals with the “company” being the transgressor with Section 39, subsection (4), which states:

“If a person other than an individual commits an offense under subsection (1), any of the person’s [corporation’s] directors or officers, or agents or mandatories, who directs, authorizes, assents to, or acquiesces or participates in the commission of the offence is a party to the offence and is liable on conviction to the punishment provided for by this Act, even if the person is not prosecuted for the offence.”

 So theoretically, the Crown can prosecute an individual for simply looking the other way, without trying the company itself.

Although the Act doesn’t specify regulations, it does “incorporate by reference” any regulations established covering a wide range of food quality and safety issues. (Section 52), and it specifically is intended to consolidate the provisions for food currently covered by the Food and Drugs Act, Fish Inspection Act, Meat Inspection Act, Canada Agricultural Products Act, and Consumer Packaging and Labelling Act.  So (again I am not a lawyer, but as I read it), a Quality Manager could go to jail for having inadequate quality records!

However, there is some good news in the form of Section 39 (2) which states that:

 “A person is not to be found guilty … if they establish that they exercised due diligence to prevent the commission of the offence”

 which I would take to mean that if you set up reasonable systems to monitor processes and ensure quality and compliance, that you are effectively shielded from any unintended breach of the Act.