As we reported in the November 2007 Osler Advertising and Marketing Review, the Organic Products Regulations (2006 Regulations) were enacted on December 14, 2006 under the Canada Agricultural Products Act. A new set of proposed regulations, the Organic Products Regulations, 2009 (2009 Regulations) were introduced on February 14, 2009. The 2009 Regulations would replace the 2006 Regulations (which would be repealed). The 2009 Regulations were drafted after extensive consultation with several different stakeholders. They attempt to clarify several provisions of the 2006 Regulations and provide additional requirements for the certification and marketing of organic products.
Notably, the 2009 Regulations clarify that the scope of application of Canada’s organic product certification regime is limited to food and drink intended for human consumption, as well as food intended to feed livestock (including agricultural crops used for those purposes) and the cultivation of plants. This limits the meaning of “agricultural products” as defined under the Agricultural Products Act such that the 2009 Regulations will not apply to cosmetics, pet foods or other consumer products.
Incorporation of Standards
Further, the 2009 Regulations incorporate (by reference) several organic product standards of the International Organization for Standardization Standards (ISO) and the Canadian General Standards Board (CGSB), in particular standards concerning:
- the requirements for “conformity verification bodies” (which replaces “accreditation bodies” under the 2006 Regulations – the bodies charged with the assessment, recommendation for accreditation and subsequent monitoring of certification bodies);
- the requirements for a certification body itself (certification bodies certify organic products under the regime);
- the application and certification processes (as well as the suspension and cancellation processes) for organic product, packaging and labelling certification, including the determination of the percentage of organic products contained in a multi-ingredient product; and
the requirements for record-keeping. The incorporation of these standards aims to add an element of consistency to the accreditation process undertaken by the conformity verification bodies and the certification processes undertaken by the certification bodies. Applicants who are refused accreditation as certification bodies now have a statutory right of review by the Canadian Food Inspection Agency (CFIA).
Organic Product Certification
A person who wishes to obtain organic certification for an agricultural product must apply to an approved certification body in the prescribed manner. A certification body is required to certify an agricultural product as organic if the product meets a series of requirements contained in the applicable CGSB standard. That body must now also issue documents to the applicant confirming the organic certification of the product. In addition, an onus now exists on any person that holds a certification for an organic product to inform the certification body of any change that may affect certification.
Packaging and Labelling Certification
Also new to the 2009 Regulations is the introduction of separate requirements for organic product packaging and labelling. Once a person has obtained organic certification of a product, to package and label the product he or she must apply to a certification body in the prescribed manner for a certificate confirming that the packaging and labelling are done in accordance with certain CGSB standards. Such certification remains in effect for a period of twelve months. Note that, whereas the 2006 Regulations stipulated that organic certification of a product remained in effect for only one year, there is no such limitation period in the 2009 Regulations for organic product certification. The 2009 Regulations only provide a limitation period for the certification of such product’s packaging and labelling.
Labelling and Advertising Requirements
The “agricultural product legend” which, under the 2006 Regulations, was a logo with the words, “Canada Organic / Biologique Canada,” has been slightly modified in the 2009 Regulations to read, “Canada Organic Regime / Régime Bio-Canada.” The logo may appear on any organic product except for a multi-ingredient product (i.e., an agricultural product composed of two or more agricultural products) that contains less than 95% organic products. Certain descriptors such as “organic,” “organically grown,” “organically produced” and related symbols may also be used on labels or in advertisements for organic products. The only exceptions are labels and advertisements for multi-ingredient products which are required to include a statement indicating the percentage of organic ingredients contained in the product in the manner prescribed.
A multi-ingredient product that is not an organic product is permitted only to identify any organic products it contains in its list of ingredients. The 2009 Regulations maintain the additional labelling requirements set out in the 2006 Regulations, but add that the claims permitted to be included on labels of organic products under the 2009 Regulations must appear in both English and French, unless only one language is required under the Food and Drug Regulations.
Importing Organic Products
The 2009 Regulations are drafted to facilitate international trade. A product may be imported and marketed in Canada as an organic product if it originates from a country with which the CFIA has entered into an agreement about the importation and exportation of organic products, and the product is certified as organic in accordance with the agreement by a certification body recognized by that country. A product originating from a country that has not entered into an agreement about the importation and exportation of organic products may nevertheless be imported and marketed in Canada as an organic product if it is certified as organic by a certification body recognized by a country with which the CFIA has entered into an agreement regarding the importation and exportation of organic products. There are no specific requirements under the 2009 Regulations that exported products meet Canadian regulatory requirements.
Implementation of the 2009 Regulations
The 2009 Regulations come into force on June 30, 2009. Certifications that were issued before the coming into force of the 2009 Regulations will remain valid provided they were issued by certification bodies with a recognized accreditation pursuant to the 2009 Regulations. The CFIA has indicated that it plans to implement temporary compliance and enforcement measures for 24 months, based on educational activities and minimum enforcement guidelines, with the intent of implementing more stringent enforcement activities thereafter.