Harm, History, Intent – What Would CFIA Do?

With a number of recalls in Canada recently caused by Listeria contamination, the most recent of which was related to a block cheese, the CFIA has been increasing the use of its Enforcement Escalation Policy for non-compliances of all types. Based on a continuum of actions in response to the potential or actual risk of the non-compliance, the escalation policy considers harm, history, and intent to determine enforcement ranging from a Letter of Non-compliance to prosecution. In this article, we discuss both the considerations to determine if action should be taken and how enforcement escalation can impact a food business. 

Harm, history, intent. When it is determined that enforcement action is applicable, the degree of food safety risk, the seriousness of the non-compliance, and the potential or actual harm, compliance history, and intent are taken into consideration, based on the following descriptions:

• Harm: The seriousness of harm or the potential harm of the non-compliance (e.g., impact on human health, marketplace deception, product misrepresentation).
• History: The compliance history of the regulated party with respect to the existence and/or seriousness of instances of non-compliance during the previous five-year period.
• Intent: The intent of the regulated party to commit a violation or cause harm (e.g., evidence demonstrates the regulated party knowingly violated the legislative requirement).

From these, it is determined if enforcement action is required and the extent of the action to be taken.

Enforcement Action

CFIA’s Compliance and Enforcement Policy is based on the concept of a continuum, through which the CFIA conducts inspections to check that requirements are being met. If a noncompliance is found, the agency first takes action to control any immediate risk, then may take enforcement action to compel a regulated party back into compliance. The higher the gravity of a non-compliance, the more stringent the enforcement response is likely to be.

As depicted in the following escalation of enforcement actions, CFIA may:

1. Issue a Letter of Non-Compliance (LoNC) or meeting with the regulated party to reinforce regulatory requirements. Issuing a LoNC may be appropriate in situations when:
   • The non-compliance has not resulted, or is not likely to result, in serious or very serious harm.
   • The non-compliance is not intentional.
   • The inspector believes that a LoNC will provide appropriate deterrence.
   • The regulated party has an otherwise good compliance history.
2. Issue an administrative monetary penalty (which may contain a warning or a financial penalty). Under the Agriculture and Agri-Food Administrative Monetary Penalties Act and Regulations, the CFIA may issue an administrative monetary penalty (AMP) to encourage compliance.
   • An AMP can be a notice of violation with a warning, or a notice of violation with a penalty.
   • The penalties, similar to ticketing fines, are imposed through an administrative process and do not result in a criminal record or imprisonment.
   • AMPs may not be appropriate when an offence is serious enough to warrant consideration for prosecution.
3. Suspend or Cancel licences, registrations, or permits. CFIA’s reasons for suspending, cancelling or refusing to renew the licence or registration of an establishment or company are generally because the operator of the establishment or company:
   • Has provided false information to the CFIA.
   • Has not maintained and operated the facility in accordance with regulatory requirements.
   • Has not complied with other requirements of the acts or regulations enforced by the CFIA.
   • Has not provided reasonable assistance to enable the CFIA to carry out its duties.
   • Has unpaid fees to the CFIA.
4. Suspend or cancel organic certifications issued under the Canada Organic Regime. The CFIA has the authority to suspend the accreditation if there is non-compliance with any SFCA provision or regulation, or with ISO 17065 requirements.
   • A suspension remains in effect until the required corrective measures are implemented and verified, or until the accreditation is cancelled.
   • Suspension and cancellation notices are kept for three years, then archived for 5 years more.
5. Recommend prosecution by the Public Prosecution Service of Canada for violators, based on the severity of the violation or the escalation of enforcement actions. A public prosecution bulletin is then issued and posted upon resolution of the Court process.

Each of these actions is considered on a case-by-case basis based on the three discussed factors: the harm caused by the non-compliance, the compliance history of the regulated party, and whether there is negligence or intent to violate federal requirements.

It is important to note that under the escalation policy, history is measured by the number of inspection notifications (non-compliances) over 5 years. Even if a finding is not serious or is corrected, it remains on the facility’s record and is counted as a noncompliance. Having more than two findings in a five-year period is not uncommon, so it is likely that there are more plants than may be expected that will have a “record” that affects their history status and could lead to a higher level of CFIA enforcement in the event of another inspection finding.

Although the total number of food recalls decreased in FY25 from FY24, the number of recalls specifically related to microbiological contamination increased by almost 10% and the total number of Class I recalls increased by 40%. With Class I recalls being the most serious, and microbiological contamination having the potential for serious health effects, it’s not surprising that CFIA is taking a close look at food businesses and taking a stricter stance in enforcement. Thus, it behooves the Canada food establishments to take a close look at their own business, themselves, to actively seek to find – then correct – non-compliances before CFIA does.

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