U.S. Seeks NAFTA Panel for Mexico Dispute

(American Shipper)

The United States on Friday asked the North American Free Trade Agreement Free Trade Commission to set up a dispute settlement panel regarding Mexico’s decision not to move its “dolphin safe” labeling dispute from the World Trade Organization to NAFTA, as requested by the United States and as required by NAFTA’s Article 2005. Read more here.

Canadian Farmers Challenge U.S. Labelling Requirements at WTO

(Bridges Weekly)

Canada is challenging the U.S.’s country-of-origin labelling (COOL) requirements for beef and pork at a meeting of the WTO’s Dispute Settlements Body (DSB). The Canadian government, backed by several business groups – including some from the U.S., claims that the implementation of COOL requirements is immensely costly forcing Canadian businesses to seek less money for their beef so as to absorb the cost of implementing the requirement. They maintain that COOL is a technical barrier to trade (TBT) and as such illegal under WTO law.

“The COOL measure is not intended to address health or safety concerns,” Canada said in its opening statement. “The objective of the COOL measure was to distort the conditions of competition in the U.S. market to favour U.S. cattle and hogs compared to imported livestock.”

The COOL act requires that consumers be informed of the country of origin of meat by a label on the sales package. To receive an “A” label, cattle must be born, raised, and slaughtered in the United States. Meat from cattle with a mixed life – for example, born and raised in Canada but slaughtered in the U.S. – must have a label indicating the mix. Read more here.

Low Carbon Tags For Products

(Global Times)

The National Development and Reform Committee (NDRC), and the Certification and Accreditation Administration of China (CNCA) on Thursday stated to make out a framework on labeling products as low carbon, according to reports.

Future products marked with the low-carbon symbol will bring positive effect on environmental protection and carbon emission reduction. They can guide consumers to consciously purchase eco-friendly stuff.

Low carbon product authentications have been used in many countries like Japan, Germany, and the UK, but different countries adopt various evaluation methods, so China needs to find one that suits its own needs, said Chen Wei, a senior official from the China Quality Certification Center (CQC).

The Ministry of Information and Industry (MIIT), CQC and the Ministry of Environment (MOE) also joined in the project.

Licensing of Food Importers

(CFIA)

On Monday August 16, 2010 CFIA posted a consultation survey on the CFIA website signalling their intent to move forward with licensing of food importers. Importers of food and food ingredients that are regulated under the Food and Drugs Act will require a license and to be able to demonstrate that they have in place a food safety system that minimizes the risk of a food-borne incident being associated with the products that they import, and processes that ensure that the their products comply with the requirements of the Consumer Product Packaging and Labelling Act and Regulations.

The regulation will be established under the authority of the Agricultural Products Act and will apply to importers of products such as:

• alcoholic and non-alcoholic beverages
• confectionery
• fats and oils
• infant formula
• coffee and tea
• cereals
• spices and seasonings
• juices
• bakery products

The regulation will not apply to importers of:

• processed fruits and vegetables
• meat and poultry
• dairy products
• egg products
• honey and maple products
• seafood
• fresh fruits and vegetables
• synthetic colours
• bottled water

CFIA intends to hold public consultations in Halifax, Montreal, Ottawa, Toronto and Vancouver during September. Dates and details will be an announced when finalized.

The CFIA on line consultation survey, background material and question and answers can be found on the CFIA website. The consultation closes October 4, 2010.

CFIA intends to publish the draft regulation in Canada Gazette Part 1 before the end of December 2010.

Labelling Non-Food Products – Enforcement Guidelines for “Product of Canada” and “Made in Canada” Claims Now in Effect

(Ian K. Bies and Emily Rix, McCarthy Tétrault LLP)

Manufacturers and processors making “Product of Canada” and “Made in Canada” claims on non-food products will now have to comply with new guidelines from the Competition Bureau – or risk enforcement action. The enforcement guidelines, which recently came into effect, describe the Bureau’s approach to assessing these claims under the false or misleading representations provisions of the Competition Act, the Consumer Packaging and Labelling Act, and the Textile Labelling Act.

The guidelines set out the approach the Bureau will take in determining when it will investigate claims for non-compliance, or undertake enforcement action under the false or misleading representations provisions in these acts. The guidelines were released following public consultations last summer on a draft version of the guidelines, and replace the Bureau’s 2002 Guide to “Made in Canada Claims” Enforcement Guidelines.

The guidelines create a distinction between “Product of Canada” and “Made in Canada” claims for non-food products. “Product of Canada” claims are subject to a higher, “all or virtually all” 98% threshold of Canadian content (i.e., at least 98% of the total direct costs of producing or manufacturing the product must have been incurred in Canada). “Made in Canada” claims remain subject to a 51% content threshold, but should be accompanied by a statement declaring that the product contains imported content. In both instances, the last substantial transformation of the product must have occurred in Canada. Read more here.

CFIA Launches Updated Labelling and Advertising Website

(CFIA)

Based on recommendations received from stakeholders, the Consumer Protection Division (CPD) has updated the food labelling and advertising web pages to better meet the needs of its users. The pilot website can be found here.

After viewing the pilot website, individuals are encouraged to complete the online questionnaire to evaluate its organization and design. The survey will be available until September 3, 2010.

Regulatory Amendment to Require Non-Medicinal Ingredient Labelling for Drugs in Canada

(Lexology – Penny Bonner et al., Ogilvy Renault LLP)

Canada has amended its Food and Drug Regulations to require non-medicinal ingredients (“NMIs”) to be included on the outer label of non-prescription drug products marketed in Canada.

The costs and administrative burden will be significant to both the pharmaceutical industry as well as the personal care product industry.

The NMI labelling requirement will be in force as of May 12, 2012.

Health Canada Considers Changes to Precautionary Labelling of Priority Allergens

(Lexology – Gowling Lafleur Henderson LLP)

Health Canada and the Canadian Food Inspection Agency are considering four potential policy options to update their position on precautionary labelling of priority allergens. Precautionary labelling allows manufactures to alert consumers that priority allergens may be in a food product, even where these allergens have not been intentionally added as an ingredient.

Currently, precautionary labelling is done on a voluntary basis. The four potential policy options are: an “enhanced voluntary” approach; an “enhanced voluntary approach with consumer notification;” a “mixed voluntary and regulatory approach; and a “regulatory” approach. Read more here.

New ‘Canadian’ Labelling Irks Industry

(Toronto Sun – Christina Spencer)

New federal standards for when a product may be marketed as “Made in Canada” have stirred confusion among some businesses and complaints from a national consumer group.

The standards, which take effect July 1, state that a consumer good can only be labelled or advertised as a “Product of Canada” if virtually all of its content originates in this country. It can be marketed as “Made in Canada” if 51% of its content is Canadian – provided the advertisement or label also carries a qualifying phrase such as “from imported products” if any components come from elsewhere.

The new standards replace a previous rule, which stated simply that any product – whether a toy, a car, a computer or any other non-food good – could be advertised as Canadian if 51% of its content and manufacturing took place here. No qualifier was needed. Read more here.

Canadian Regulator Publishes Counterfeit Guidance

(SecuringPharma.com)

Health Canada has finalised a guidance document on counterfeiting of health products, laying out the principles of how the agency intends to identify, assess and manage health risks associated with fakes.

The primary objective of the response strategy is “to manage the risk to Canadians and to have the counterfeit product removed from market using the most appropriate level of intervention and notifying parties at risk,” according to Diana Dowthwaite, Health Canada’s Director General.

The document indicates that the presence of counterfeit health products in the regulated supply chain in Canada is “infrequent.” Nevertheless the purpose of the new guideline is to help Health Canada’s inspectorate and enforcement officials focus on potential vulnerabilities in health product “manufacturing, packaging/labelling, wholesaling, importation, distribution, sale and use.” Read more here.

Health Products & Food Branch Policy on Counterfeit Health Products

(Lexology – Jennifer Wilkie, Gowling Lafleur Henderson LLP)

By a document posted May 14, 2010, the Health Products & Food Branch Inspectorate have set out guiding principles of Health Canada’s decision making framework for identifying, assessing and managing health risks to identify the issues of counterfeit health products. In the background of this document it is set out that, while these issues of counterfeit health products is infrequent, the document is intended to focus on potential vulnerabilities into the regulated supply chain which includes manufacturing, packaging, labelling, wholesaling, importation, distribution and sale of health products.

Counterfeit health products are described as follows:

“A counterfeit health product is one that is represented as, and likely to be mistaken for, an authentic product. Counterfeiting can apply to both branded and generic products, and could relate to a product’s identity or source, could include products with the corrected ingredients/components, with the wrong ingredient/components, without active ingredients, with insufficient active ingredients or with misleading packaging or labelling.”

Read more here. Additional information is available from Health Canada here.

Competition Bureau Clarifies New Guidelines on “Made in Canada” and “Product of Canada” Claims

(Competition Bureau Canada)

The Competition Bureau… further clarified its enforcement approach to “Made in Canada” and “Product of Canada” claims.

In December 2009, the Bureau released its revised Enforcement Guidelines for "Product of Canada" and "Made in Canada" Claims. The Guidelines describe the Bureau’s approach to assessing "Product of Canada" and "Made in Canada" claims for non-food products under the false or misleading representations provisions of the Competition Act, the Consumer Packaging and Labelling Act and the Textile Labelling Act. The Guidelines take effect on July 1, 2010.

As is always the case, businesses should note that a mere deviation from any enforcement Guidelines does not necessarily mean that the Bureau will launch an investigation or take enforcement action. All relevant factors will be examined, on a case-by-case basis, in order to determine whether potential issues are raised under the laws in question. Should a potential issue be identified, the Bureau has a variety of tools at its disposal to achieve compliance with those laws, ranging from education and awareness to enforcement action, where appropriate. […]

In order to ensure an effective and fair industry transition, and consistent with past practice when introducing new enforcement guidelines, for the six-month period following the July 1, 2010 implementation date, the Bureau confirms that it will only consider enforcement action in circumstances of bad faith. Specifically, in that transitional period, the Bureau confirms that, in the absence of bad faith, the Bureau will limit its response in cases of apparent non-compliance to education and warning letters consistent with the options outlined in the Bureau’s Conformity Continuum.

WTO COOL Dispute Moves Ahead

(Portage Online)

It’s another step forward in Canada’s case against American Country-Of-Origin Labelling legislation.

The World Trade Organization has appointed three members to a panel to review whether the U.S. labelling requirements violate international trade rules. Both Canada and Mexico say the laws restrict market access and act as a technical barrier to trade. Federal Agriculture Minister Gerry Ritz welcomed the creation of the dispute panel. He says Canada has a strong case.

“We know we have the data on our side to prove there’s been economic harm,” Ritz says. “We’re disappointed that the Americans continue moving ahead with this as opposed to taking a good, educated look.” Read more here.

“Made in Canada” and “Product of Canada” Claims

(Lexology – Laurent Massam, Gowling Lafleur Henderson LLP)

The Competition Bureau has released Enforcement Guidelines relating to when “Product of Canada” and “Made in Canada” claims may be made in association with non-food products sold to Canadian consumers (“Guidelines”). Food products that are associated with “Made in Canada” and “Product of Canada” claims are subject to different guidelines created by the Canadian Food Inspection Agency.

Although the Guidelines are not legislation, they do describe the general approach of the Bureau to assessing “Made in Canada” and “Product of Canada” claims under the false and misleading representations provisions of various Acts, including the Competition Act, the Consumer Packaging and Labelling Act, the Textile Labelling Act and the Precious Metals Marking Act.

The Guidelines come into effect on July 1, 2010. After this date, all non-food products that are associated with a “Made in Canada” or “Product of Canada” claim, including inventory that is already on-shelf, must meet the conditions set out in the Guidelines. In certain circumstances, it may be necessary to consider options such as over-stickering to make product packaging compliant post July 1, 2010. Read more here.

New Pork Labelling Scheme [UK]

(Lexology – Jane Hanney, Blake Lapthorn)

A new voluntary Code of Practice for the labelling of pork and pork products was introduced at the end of February.

This was developed by the Pig Meat Supply Chain Task Force which represents a broad range of stakeholders, including retailers, food service companies, consumers, processors, industry organisations, government and its agencies. It is intended to provide consumers with clear and unambiguous labelling regarding country of origin, pig production terms and the use of breed names.

While there are specific legal requirements for foods such as beef, veal, fish and shellfish to be labelled with information on country of origin, there is no such legislation covering pork and pork products. These foods have to comply with the Food Labelling Regulations which require that the place of origin or provenance need only be labelled if failure to do so might mislead a purchaser. This has led to a lack of clarity and ambiguities where imported pork processed in the UK is labelled as ‘Produced in the UK’ without additional details on country of origin being required. The new Code is designed to address these issues. Read more here.

California Moves Toward Requiring Labels on All Fur-Bearing Garments

(World Trade Interactive)

The California State Assembly voted April 5 to require that all garments made with animal fur carry a label indicating the animal from which the fur was taken and the country of origin. If the measure (Assembly Bill 1656) is approved by the state Senate and signed by Gov. Arnold Schwarzenegger, California will join Delaware, New Jersey, New York, Massachusetts and Wisconsin on the list of states that have imposed such a requirement.

The federal Fur Products Labeling Act requires all garments made entirely or partly with fur to include a label disclosing various information, including the name of the animal from which the fur was taken and the country of origin if the product was imported. However, this requirement is waived if the cost of the fur trim used on a garment, or the selling price of a fur product, is $150 or less. This exemption does not apply if the product contains dog or cat fur. Furthermore, the Dog and Cat Protection Act of 2000 prohibits importing, exporting, selling, trading, advertising, transporting or distributing any products made with dog or cat fur.

The sponsors of the California bill noted that the $150 loophole in federal law disadvantages consumers that are allergic to fur or object to wearing it on ethical grounds.

AHPA Adopts New Extract Labeling Trade Requirement, Guidance

(Food Ingredients First)

In October 2008 the American Herbal Products Association (AHPA) adopted a trade requirement on how the word “extract” may be used in labeling of herbal ingredients, and established at that time a restriction against the use of the word extract to describe dehydrated plant materials that have not been subject to additional processing other than size reduction, such as cutting or milling. This initial policy was adopted in response to reports of dehydrated but otherwise unprocessed herbs, such as hoodia stem (Hoodia gordonii), being marketed for example as “Hoodia gordonii extract 20:1.”

The AHPA Board of Trustees voted March 11 to revise this original trade requirement to also address the use of extract ratios (such as “20:1” in the above example). The new policy therefore also prohibits the use of such ratios on herbal ingredients that are not processed by one or another extraction process. Click here to read the new rules recommended by the APHA.

New Rules for “Made in Canada” and “Product of Canada” Claims

(Lexology – Stephen I. Selznick and Elizabeth Sinnott, Cassels Brock & Blackwell LLP)

In continuing efforts to ensure truth in advertising and to provide manufacturers, importers and retailers with timely compliance guidance, the Competition Bureau1 (the “Bureau”) has introduced new Enforcement Guidelines relating to “Product of Canada” and “Made in Canada” Claims (the “Guidelines”) applicable to non-food products. The Guidelines, which are effective July 1st, 2010, and supersede the former Guide to “Made in Canada” Claims (the “Former Guide”), describe the Bureau's approach to assessing claims under the false or misleading representation provisions of the Competition Act (Canada), the Consumer Packaging and Labelling Act (Canada) (with respect to non-food products only) and the Textile Labelling Act (Canada) (collectively, the “Acts”). The publication of the Guidelines in the Summer of 2009 with an effective date one year later, is a clear signal to industry that territorial source of origin claims should be revisited and re-examined with the Guidelines in mind well before the Summer of 2010 effective date, in order to avoid attracting scrutiny from the Bureau and in deflecting potential consumer complaints.

The Acts administered by the Bureau all prohibit the making of false or misleading representations.2 As such, when a business chooses to make a “Made in Canada” or “Product of Canada” claim, it should do so in accordance with the Guidelines. The Bureau relies on the Guidelines when determining whether it should investigate a consumer claim or whether it should undertake appropriate enforcement action for non-compliance.
As a significant change from the past, the Guidelines create a clear distinction between “Product of Canada” and “Made in Canada” claims.

In order to be properly identified as a “Product of Canada,” items will now have to meet two conditions. First, the last substantial transformation of the goods must have occurred in Canada.3 Second, at least 98% of the total direct costs of producing or manufacturing the goods must have been incurred in Canada. Read more here.

Enforcement Guidelines – “Product of Canada” and “Made in Canada” Claims

(Industry Canada)

This publication is not a legal document. It contains general information and is provided for convenience and guidance in applying the Competition Act, the Consumer Packaging and Labelling Act and the Textile Labelling Act.

This publication replaces the following Competition Bureau publications: Enforcement Guidelines – Guide to “Made in Canada” Claims – January 22, 2002 [and] Enforcement Guidelines – Enforcement Guidelines Relating to “Product of Canada” and “Made in Canada” Claims, Draft for Public Consultation, July 10, 2009

AMI Sides with Canada & Mexico on COOL

(Food Safety News – Dan Flynn)

The American Meat Institute (AMI) is coming down on the side of Mexico and Canada when it comes to opposing the USA’s Country of Origin Labeling (COOL) as mandated by the 2008 Farm Bill. AMI has weighed in with a seven-page letter to the U.S. Trade Representative saying the COOL law puts the United States at odds with its international trade obligations.

“Critical to the United States’ ability to enforce successfully World Trade Organization (WTO) and North American Free Trade Agreement (NAFTA) obligations is consistency in U.S. behavior and actions,” wrote Mark D. Dopp, senior vice president, regulatory affairs, and general counsel. “In that regard, the United States’ credibility is undermined when U.S. legislation violates America’s commitments pursuant to those international agreements.” Read more here.