The short answer is yes, a non-resident importer may import foreign foods into Canada if the non-resident importer meets certain conditions.
TheSafe Food for Canadians Act ("SFCA") and its regulations, the Safe Food for Canadians Regulations ("SFCR") provide the answer. The SFCA came into full force on January 15, 2019 when the SFCR were adopted. The SFCA and SFCR apply, with few exceptions, to all food commodities and create a framework of standards, licensing and other requirements established to ensure that food sold in Canada is safe. Those standards and requirements apply to all persons, including non-resident importers, who wish to import food into Canada.
To be permitted to import food into Canada, on and after January 15, 2019, importers must either (a) have a fixed place of business in Canada or (b) be located in a country recognized by the Minister of Agriculture and Agri-Food (the "Minister") as having the same level of food protection. This means that with few exceptions, any person that imports food into Canada must have:
- A fixed place of business in Canada from which they carry on business related to the food; or
- A fixed place of business from which they carry on business related to the food in a foreign state that:
- for food that is meat or shellfish, has an inspection system that the Minister has recognized as providing the same level of protection as provided by the SFCA/SFCR; or
- has a food safety system that the Minister has recognized as providing at least the same level of protection in relation to that food as that provided by the SFCA/SFCR; AND
- The food must be imported directly from that recognized foreign state.
Therefore, if: (i) you are exporting directly from a country with an inspection system and/or food safety system so recognized by the Minister; (ii) the product that you are exporting is covered by the applicable recognition arrangement; (iii) the product meets all other requirements of the SFCA and SFCR (e.g. Preventative Control Plan, recall procedures, traceability, labelling, standards, packaging, standards, etc.); (iv) the product meets any other Canadian legislative requirements that apply to that product (e.g. labelling, applicable testing requirements); AND (v) you have secured an import license, as required under the SFCA and SFCR transitional provisions, THEN, the SFCA/SFCR permit a non-resident importer to import that product into Canada as and to the extent permitted by its import license.
If an exporter is not exporting directly from a country recognized by the Minister as described above, or the exported product is not covered by the applicable recognition arrangement, then that exporter must have a fixed place of business in Canada from which they carry on business related to the exported food. Neither the SFCA nor the SFCR defines the terms: "fixed place of business"; or from which "they carry on business related to the food". In its Glossary of terms, the Canada Food Inspection Agency provides the following general direction regarding the term: "fixed place of business":
"The term "fixed place of business" is not specifically defined in the Safe Food for Canadians Act nor in the Safe Food for Canadians Regulations (SFCR). In general terms, "fixed place of business" when used in Part 2 – Trade of the SFCR (Safe Food for Canadians Regulations), refers to a permanent, physical business location. A post office box is not considered a fixed place of business." [emphasis added]
The underlying intent of the requirement (to ensure food safety) and the use of similar terms in other pieces of Canadian legislation suggest that a notional presence in Canada is not enough. When an exporter applies for its import license, it will be asked to declare that it has a fixed place of business in Canada from which it carries on business related to the food.
Failure to comply with the requirements of the SFCA and the SFCR may result in rejection of shipments at the border, seizure of offending food products and/or the imposition of stiff penalties ranging from fines of $250,000 - $5,000,000 and/or imprisonment of 6 months – 5 years for each offence. Any director or officer or agent of the offending organization, who authorizes, assents to or acquiesces or participates in the commission of the offence also may be liable on conviction to these penalties.
Exporters are advised to ensure that they have the required presence in Canada and meet all requirements under the SFCA, SFCR and other applicable Canadian legislation, before they export food to or seek an import license for Canada.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.