Late last year, the Manitoba legislature introduced Bill 7, The Food Safety and Related Amendments Act, which received first reading on December 3, 2008 (the Bill). If passed, the Bill will require the licensing of food establishments and set out mandatory reporting obligations of food establishment operators. In addition, the Bill will enable the government to establish standards and requirements for food, food premises and food safety systems, and will make it an offence to sell or distribute a food that is identified as a food safety risk. Finally, the Bill will provide the government with certain recall and order-making powers.
The Bill would apply to “food premises” which includes not only premises where food is grown or produced, but also any premises where food is processed, prepared, packaged, distributed, transported, sold, stored or handled for any of these purposes. This definition will capture manufacturing and packaging plants, storage/distribution warehouses, restaurants, cafeterias, etc. and includes vehicles. Furthermore, the Bill will apply to food or beverage for human consumption, including ingredients, unless the regulations provide for a specific exception.
Responsibility for Food Safety
The Bill provides a definition of a “food safety risk” which applies to food as well as to agricultural inputs (e.g., feed, fertilizers, pesticides, manure, supplements, growth promoters, etc.). It also creates an offence for an operator of food premises who sells or distributes any food that is a food safety risk. The “sale” of a food by definition includes offering and displaying a food, possessing or delivering a food for the purposes of sale, bartering or exchanging food and offering food as a prize or reward. The Bill also creates mandatory reporting obligations of operators who reasonably believe that a prescribed food safety risk exists on their premises. The Bill encourages voluntary reporting by employees (and other individuals) by creating whistleblower protection for employees who, in good faith, report their reasonable beliefs that a food safety risk exists on their employer’s food premises.
The Bill would require that certain designated types or classes of food premises be licensed. Such licenses would be non-transferable and may be subject to terms and conditions as imposed by an appointed director. The creation of a public registry of licensed establishments is also contemplated under the Bill.
Inspections and Orders
Under the Bill, food premises will be subject to spot-inspections at any reasonable time and without notice by Minister-appointed inspectors. Inspectors will be charged with general inspection powers (i.e., premises entry, sampling and testing, operation of equipment on premises, record inspection and production, copying, photographing), as well as search and seizure powers under certain circumstances. Inspectors will also be able to issue orders where they reasonably believe a food safety risk exists and an order is necessary to prevent, control or eliminate the risk, or where a person has failed to comply with the legislation. An order may (among other things) direct a person to:
(1) clean or disinfect premises or equipment;
(2) modify or not use certain equipment, ingredients or agricultural inputs;
(3) destroy or remove a food or other item; and
(4) modify or stop operations, including selling or distributing food from the premises.
An order issued by an inspector may not, however, require a person to recall any food or agricultural input. A review process will be available for most types of orders.
Under the Bill, only the minister, on reasonable grounds, may order a recall, withdrawal or quarantine of a food or an agricultural input, and only after consulting with the chief provincial public health officer and in accordance with the regulations. The Bill also enables the minister to establish a “control area” within, from or to which certain persons may be prohibited or restricted from selling, transporting or distributing food or agricultural inputs. It is an offence for an individual to fail to comply with such orders.
Standards and Requirements
The Bill provides that regulations may be created to establish standards and requirements for food, including the preparing and packaging, marking and labelling, displaying and selling of food. Regulations may also be created concerning:
(1) food premises (i.e., requirements for the location, design, maintenance and sanitation of food premises, production practices used, control and supervision of food premises, and qualifications and training of staff);
(2) food safety systems and programs (i.e., monitoring and auditing practices);
(3) record-keeping and the reporting obligations of operators;
(4) food-origin tracking systems; and
(5) the disposal of food by-products.
Failure to comply with a prescribed provision of the legislation may result in an administrative penalty issued by an inspector of up to $5,000. The director may also issue public reports disclosing the details of any administrative penalties issued. Individuals who commit an offence under the legislation – which can include officers, directors, employees or agents of a corporation who authorized, permitted or acquiesced in the commission of the offence – may be liable for a fine of up to $50,000 and/or a six-month term of imprisonment. Corporations may be liable for a fine of up to $500,000.