An Act to amend the Food and Drugs Act, the Hazardous Products Act, the Radiation Emitting Devices Act, the Canadian Environmental Protection Act, 1999, the Pest Control Products Act and the Canada Consumer Product Safety Act and to make related amendments to another Act (S.C. 2016, c. 9)
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Assented to 2016-12-12
An Act to amend the Food and Drugs Act, the Hazardous Products Act, the Radiation Emitting Devices Act, the Canadian Environmental Protection Act, 1999, the Pest Control Products Act and the Canada Consumer Product Safety Act and to make related amendments to another Act
S.C. 2016, c. 9
Assented to 2016-12-12
An Act to amend the Food and Drugs Act, the Hazardous Products Act, the Radiation Emitting Devices Act, the Canadian Environmental Protection Act, 1999, the Pest Control Products Act and the Canada Consumer Product Safety Act and to make related amendments to another Act
SUMMARY
This enactment enables Canada to implement the Agreement on Trade Facilitation, which was done at Geneva by members of the World Trade Organization, including Canada, on November 27, 2014, as an amendment to Annex 1A of the Marrakesh Agreement Establishing the World Trade Organization.
It amends the Food and Drugs Act, the Hazardous Products Act, the Radiation Emitting Devices Act, the Canadian Environmental Protection Act, 1999, the Pest Control Products Act and the Canada Consumer Product Safety Act, to bring them into conformity with Canada’s obligations under the Agreement on Trade Facilitation.
It also makes related amendments to another Act.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. F-27Food and Drugs Act
Marginal note:1997, c. 6, s. 62
1 (1) The definitions analyst and inspector in section 2 of the Food and Drugs Act are replaced by the following:
- analyst
analyst means an individual designated as an analyst for the purposes of this Act under section 28 or under section 13 of the Canadian Food Inspection Agency Act; (analyste)
- inspector
inspector means an individual designated as an inspector for the purposes of this Act under subsection 22(1) or under section 13 of the Canadian Food Inspection Agency Act; (inspecteur)
(2) Section 2 of the Act is amended by adding the following in alphabetical order:
- person
person means an individual or an organization as defined in section 2 of the Criminal Code; (personne)
2 The portion of paragraph 16(a) of the French version of the Act before subparagraph (i) is replaced by the following:
a) contient une substance — ou en est recouvert — susceptible de nuire à la santé de l’individu qui en fait usage :
3 The heading of Part II of the French version of the Act is replaced by the following:
Exécution et contrôle d’application
4 Subsection 22(1) of the Act is replaced by the following:
Marginal note:Inspectors
22 (1) For the purposes of the administration and enforcement of this Act, the Minister may designate individuals or classes of individuals as inspectors to exercise powers or perform duties or functions in relation to any matter referred to in the designation.
5 Section 25 of the Act is replaced by the following:
Marginal note:Storage, movement and disposal
25 An inspector may, in respect of any article seized under this Part,
(a) on notice to its owner or the person having possession, care or control of it at the time of its seizure, store it or move it at the expense of the person to whom the notice is given;
(b) order its owner or the person having possession, care or control of it at the time of its seizure to store it or move it at the expense of the person being so ordered; or
(c) order its owner or the person having possession, care or control of it at the time of its seizure to dispose of it at the expense of the person being so ordered — or, on notice to its owner or the person having possession, care or control of it at the time of its seizure, dispose of it at the expense of the person to whom the notice is given — if
(i) the article is perishable, or
(ii) the inspector is of the opinion that the article presents a risk of injury to health or safety and that its disposal is necessary to respond to the risk.
Marginal note:1997, c. 6, s. 64
6 Sections 27 and 28 of the Act are replaced by the following:
Marginal note:Unclaimed seized articles
26.1 (1) An article seized under this Part is, at the election of the Minister or the Minister of Agriculture and Agri-Food, forfeited to Her Majesty in right of Canada if
(a) within 60 days after the seizure, no person is identified in accordance with the regulations, if any, as its owner or as the person entitled to possess it; or
(b) its owner or the person having possession, care or control of it at the time of its seizure does not claim it within 60 days after the day on which they are notified that an inspector has released it.
Marginal note:Disposal
(2) A seized article that is forfeited under subsection (1) may be disposed of, as the Minister or the Minister of Agriculture and Agri-Food may direct, at the expense of its owner or the person having possession, care or control of it at the time of its seizure.
Marginal note:Forfeiture with consent
27 (1) If an inspector has seized an article under this Part and its owner or the person having possession, care or control of it at the time of its seizure consents to its forfeiture, the article is forfeited to Her Majesty in right of Canada and may be disposed of as the Minister or the Minister of Agriculture and Agri-Food may direct, at the expense of its owner or the person having possession, care or control of the article at the time of its seizure.
Marginal note:Forfeiture — offence
(2) If a person has been convicted of a contravention of this Act or the regulations, the court or judge may, in addition to any punishment imposed, order that any article by means of or in relation to which the offence was committed, and any thing of a similar nature belonging to or in the possession, care or control of the person or found with the article, be forfeited. On the making of the order, the article and thing are forfeited to Her Majesty in right of Canada and may be disposed of as the Minister or the Minister of Agriculture and Agri-Food may direct, at the expense of the person who has been convicted.
Marginal note:Order for forfeiture on application of inspector
(3) Without prejudice to subsection (2), a judge of a superior court of the province in which any article is seized under this Part may, on the application of an inspector and on any notice to those persons that the judge directs, order that the article and any thing of a similar nature found with it be forfeited to Her Majesty in right of Canada, if the judge finds, after making any inquiry that the judge considers necessary, that the article is one by means of or in relation to which a provision of this Act or the regulations has been contravened. On the making of the order, the article or thing may be disposed of as the Minister or the Minister of Agriculture and Agri-Food may direct, at the expense of the owner of the article or the person having possession, care or control of it at the time of its seizure.
Removal, Forfeiture or Destruction of Unlawful Imports
Marginal note:Unlawful imports
27.1 (1) An inspector who has reasonable grounds to believe that an imported food, drug, cosmetic or device does not meet the requirements of the regulations or was imported in contravention of a provision of this Act or the regulations may decide whether to give the owner or importer, or the person having possession, care or control of the food, drug, cosmetic or device, the opportunity to take a measure in respect of it.
Marginal note:Factors
(2) In making a decision under subsection (1), the inspector shall consider, among other factors:
(a) whether the food, drug, cosmetic or device presents a risk of injury to health or safety; and
(b) any other prescribed factors.
Marginal note:Duty of inspector
(3) If the inspector decides under subsection (1) not to give the owner or importer, or the person having possession, care or control of the food, drug, cosmetic or device the opportunity to take a measure in respect of it, the inspector shall exercise, in respect of the food, drug, cosmetic or device, any of the powers conferred by the provisions of this Act, other than this section, or of the regulations.
Marginal note:Measures that may be taken and notice
(4) However, if the inspector decides under subsection (1) to give the owner or importer, or the person having possession, care or control of the food, drug, cosmetic or device the opportunity to take a measure in respect of it, the inspector, or any other inspector who is informed of the decision, shall decide whether the owner or importer, or the person having possession, care or control of it may remove it from Canada at their expense, consent to its forfeiture or take either of these measures, and shall notify or cause to be notified the owner or importer, or the person having possession, care or control of the food, drug, cosmetic or device that they may take that measure within the period specified by the inspector or other inspector, as the case may be.
Marginal note:Forfeiture
(5) If a person is notified under subsection (4) that they may consent to the forfeiture of the food, drug, cosmetic or device and the person consents to its forfeiture, the food, drug, cosmetic or device is forfeited to Her Majesty in right of Canada and may be disposed of, as the Minister may direct, at the person’s expense.
Marginal note:Removal or destruction
27.2 (1) An inspector who has reasonable grounds to believe that an imported food, drug, cosmetic or device does not meet the requirements of the regulations or was imported in contravention of a provision of this Act or the regulations may, by notice, whether the food, drug, cosmetic or device is seized or not, order its owner or importer, or the person having possession, care or control of it, to remove it from Canada at their expense or, if removal is not possible, to destroy it at their expense.
Marginal note:Notice
(2) The notice must be delivered personally to the owner or importer of the food, drug, cosmetic or device, or the person having possession, care or control of it, or sent to the owner, importer or person by any method that provides proof of delivery or by any prescribed method.
Marginal note:Forfeiture
(3) If the food, drug, cosmetic or device is not removed from Canada, or destroyed, within the period specified in the notice — or, if no period is specified, within 90 days after the day on which the notice was delivered or sent — it is, despite section 26, forfeited to Her Majesty in right of Canada and may be disposed of, as the Minister may direct, at the expense of the person to whom the notice was delivered or sent.
Marginal note:Suspension of application of subsection (3)
(4) An inspector may, for the period specified by the inspector, suspend the application of subsection (3) if the inspector is satisfied that
(a) the food, drug, cosmetic or device does not present a risk of injury to health;
(b) the food, drug, cosmetic or device will not be sold within that period;
(c) the measures that should have been taken for the food, drug, cosmetic or device not to have been imported in contravention of a provision of this Act or the regulations will be taken within that period; and
(d) if the food, drug, cosmetic or device does not meet the requirements of the regulations, it will be brought into compliance with those requirements within that period.
Marginal note:Cancellation
(5) An inspector may cancel the notice if the inspector is satisfied that
(a) the food, drug, cosmetic or device does not present a risk of injury to health;
(b) the food, drug, cosmetic or device has not been sold within the period referred to in subsection (6);
(c) the measures referred to in paragraph (4)(c) were taken within that period; and
(d) if the food, drug, cosmetic or device did not meet the requirements of the regulations when it was imported, it was brought into compliance with those requirements within that period.
Marginal note:Period
(6) The period for the purposes of subsection (5) is
(a) if the application of subsection (3) was suspended under subsection (4), the period of the suspension; and
(b) if the application of subsection (3) was not suspended, the period specified in the notice or, if no period was specified, the period of 90 days after the day on which the notice was delivered or sent.
Marginal note:Non-application of Statutory Instruments Act
(7) The Statutory Instruments Act does not apply to the notice.
Analysis
Marginal note:Analysts
28 The Minister may designate any individual as an analyst for the purposes of the administration and enforcement of this Act.
7 Section 29 of the Act is amended by adding the following after subsection (1):
Marginal note:Costs
(1.1) The analysis or examination of any article seized, or of any sample, shall be at the expense of
(a) in respect of an article seized or a sample taken from it, the owner of the article or the person having possession, care or control of the article at the time of its seizure; or
(b) in respect of a sample taken by the inspector, the owner of the article from which the sample was taken or the person having possession, care or control of it at the time the sample was taken.
8 (1) Paragraph 30(1)(d) of the Act is replaced by the following:
(d) respecting the importation of food, drugs, cosmetics and devices — including any importation that is solely for the purpose of export — in order to ensure compliance with the provisions of this Act and the regulations;
(2) Paragraph 30(1)(f) of the Act is replaced by the following:
(f) requiring persons who sell food, drugs, cosmetics or devices, or persons who import them solely for the purpose of export, to maintain any books and records that the Governor in Council considers necessary for the purposes of this Act;
(3) Paragraphs 30(1)(i) and (j) of the Act are replaced by the following:
(i) respecting the powers, duties and functions of inspectors and analysts and the taking of samples;
(i.1) respecting the seizure, detention, forfeiture and disposition of articles under this Act;
(j) exempting, with or without conditions, any food, drug, cosmetic, device, person or activity from all or any of the provisions of this Act or the regulations;
(4) Subsection 30(1) of the Act is amended by adding the following after paragraph (k):
(k.1) respecting the time and manner in which information, notices and documents are to be provided or served under this Act;
(5) Subsection 30(1) of the Act is amended by striking out “and” at the end of paragraph (q) and by adding the following after paragraph (r):
(s) respecting the implementation, in relation to any food, drug, cosmetic or device, of international agreements that affect them; and
(t) prescribing anything that by this Act is to be prescribed.
9 The Act is amended by adding the following after section 30.6:
Costs
Marginal note:Recovery
30.7 (1) Her Majesty in right of Canada may recover, as a debt due to Her Majesty in right of Canada, any costs incurred by Her Majesty in right of Canada in relation to anything required or authorized under this Act, including the inspection of a place or the analysis, examination, storage, movement, seizure, detention, forfeiture, disposal or release of an article.
Marginal note:Time limit
(2) Proceedings to recover a debt due to Her Majesty in right of Canada under subsection (1) shall not be commenced later than five years after the debt became payable.
Marginal note:Certificate of default
30.8 (1) Any debt that may be recovered under subsection 30.7(1) in respect of which there is a default of payment, or the part of any such debt that has not been paid, may be certified by the Minister.
Marginal note:Judgment
(2) On production to the Federal Court, a certificate made under subsection (1) shall be registered in that Court and, when registered, has the same force and effect, and all proceedings may be taken on the certificate, as if it were a judgment obtained in that Court for a debt of the amount specified in the certificate and all reasonable costs and charges attendant in the registration of the certificate.
Marginal note:2014, c. 24, s. 8
10 The portion of section 31 of the Act before paragraph (a) is replaced by the following:
Marginal note:Contravention of Act or regulations
31 Subject to sections 31.1, 31.2 and 31.4, every person who contravenes any of the provisions of this Act or of the regulations, or fails to do anything the person was ordered to do by an inspector under section 25 or 27.2, is guilty of an offence and liable
Marginal note:1993, c. 34, s. 73; 2004, c. 23, s. 3
11 Section 37 of the Act is replaced by the following:
Marginal note:Conditions under which exports exempt
37 (1) This Act does not apply to any packaged food, drug, cosmetic or device if
(a) it is manufactured or prepared in Canada;
(b) it is intended for export and is not manufactured or prepared for consumption or use in Canada nor sold for consumption or use in Canada;
(c) a certificate that the package and its contents do not contravene any known requirement of the law of the country to which it is or is about to be consigned has been issued in respect of the package and its contents in prescribed form and manner; and
(d) the packaged food, drug, cosmetic or device meets any other prescribed requirement.
Marginal note:Exception — Act
(1.1) Despite subsection (1),
(a) section 4, subsection 5(1) and section 7 apply to any food;
(b) section 8, subsection 9(1) and section 11 apply to any drug that is not a natural health product within the meaning of the Natural Health Products Regulations;
(c) sections 16 and 18 apply to any cosmetic; and
(d) section 19 and subsection 20(1) apply to any device.
Marginal note:Exception — regulations
(1.2) Despite subsection (1), any prescribed provision of the regulations respecting the method of manufacture, preparation, preserving, packaging, storing and testing of any food, drug, cosmetic or device applies to any packaged food, drug, cosmetic or device.
Marginal note:Exception — General Council Decision
(2) Despite subsection (1), this Act applies in respect of any drug or device to be manufactured for the purpose of being exported in accordance with the General Council Decision, as defined in subsection 30(6), and the requirements of the Act and the regulations apply to the drug or device as though it were a drug or device to be manufactured and sold for consumption or use in Canada, unless the regulations provide otherwise.
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