Bill C-38: Omnibus or ominous?

Consumers can be forgiven for being in the dark about recent significant changes to our food safety laws: the changes were hidden in the omnibus budget bill (Bill C-38). Indeed, it would surprise me if most of the MPs who voted for the Bill are aware of all the changes.

Exemptions to food safety requirements

The most significant change within the Bill allows the Health Minister to grant exemptions to food safety requirements without publishing those exemptions and without Parliament’s oversight.

One of our most fundamental food safety protections includes a prohibition from selling adulterated food. Another protection allows the Government to set a food standard when it is necessary to prevent injury. It is illegal to sell or advertise in such a way that the consumer will mistakenly believe a food meets the standard when it does not.

Prior to Bill C-38 the Minister was allowed to grant exemptions to these fundamental safety protections. However, there were safeguards to alert consumers of the exemptions granted, and to allow for oversight by Parliament. The most significant protection was that any exemption did not take effect until it was published in the Canada Gazette (the Government’s newspaper). This enabled consumers and the media to be aware of changes, such as allowing ingredients from genetically modified organisms into food.

Another protection was that the exemptions were temporary. They expired after two years unless a regulation was passed. Passing changes to the regulations required further publication in the Gazette, and gave Parliament supervision. Both the House of Commons and the Senate have the authority to revoke a regulation.

Safeguards removed

These safeguards are erased with Bill C-38 and exemptions are now permanent. They do not need to be published in the Gazette and there is no obvious way for consumers or the media to learn about changes being made. Unless these changes are voluntarily published it will be difficult for consumers to avoid food ingredients that concern them.

As well, any new exemptions will not require changes to the food safety regulations to stay in force. This will hinder parliamentary scrutiny and oversight when the Minister grants exemptions. It is difficult to see how these changes benefit either the consumer or our democratic process.

Before Bill C-38 the Minister could only grant an exemption if she determined that the food in question “would not be harmful to the health of the purchaser or consumer.” This was an important protection considering that a common reason for granting exemptions is to permit higher levels of agricultural chemicals, veterinary drugs, and additives in foods. Now the Minister can grant exemptions increasing these levels without having to ensure that the food will not be harmful.

On a more positive side, the Minister will now have the authority to sanction some previously banned food claims. The Food and Drugs Act bans any treatment claims for 29 conditions, including cancer and acute arthritis. Curiously, natural health products will continue to be banned from making any treatment claims for these same ailments.

Hidden agenda?

The fact that the power to authorize claims does not extend to natural health products, combined with another new power, leads me to speculate that Health Canada may be planning on adopting food claim regulations similar to those of the European Union. The other new power allows any food regulation or exemption (formally called a marketing authorization) to incorporate by referencing “any document, regardless of its source.”

The ability to incorporate “any document” into our regulations or into exemptions to our food safety laws has unpredictable ramifications. For example, the Minister could grant a blanket exemption allowing agricultural chemicals for foods in amounts listed as safe by a trade association of chemical companies. Or, as I speculate, a food regulation or market authorization could incorporate parts of the European Union’s restrictive regulations on nutrition and health claims for foods.

I believe this new power to incorporate by reference is not an accident. It was deliberately passed because Health Canada has something in mind. Without knowing the details of the plan, we can only speculate on whether it will be positive or negative in the short term.

Transfer of authority

Regardless of the short term merits of any incorporated documents, the power to incorporate any document represents a fundamental shift concerning who has authority to ensure our food is safe. Previously, Parliament had the oversight.

Food safety laws were either acts or regulations. Acts must be voted on by Parliament. Even regulations, which are not voted on, have significant built-in safeguards:

• They must be published in the Gazette.
• The public has an opportunity to comment on them.
• They are examined to ensure they are authorized by law, and that they do not trespass unduly on existing rights and freedoms.

Even after they are passed, regulations are permanently before parliamentary committees who can present resolutions in Parliament to revoke them. None of these safeguards applies to a document adopted in a marketing authorization.

The adoption of any document presents other challenges. If, for example, the Minister granted a blanket exemption allowing agricultural chemicals for foods in amounts listed as safe by a trade association of chemical companies, there would be no use petitioning Parliament for a change. One is now better off petitioning the trade association. This represents a transfer of supervision of our food safety from Parliament to the bureaucracy and, depending on what documents are incorporated, to foreign governments or private corporations.

Unfortunately, for anyone concerned about these changes, the omnibus bill has already passed. This does not mean that the changes cannot be undone. The strength of our democratic process is that when enough people become involved, change happens.

Become involved!

• Educate yourself about the changes:
• read documents such as the NHPPA Discussion Paper on Bill C-38 at nhppa.org
• support groups dedicated to protecting your access to safe foods
• engage your MP