This article originally appeared on the G.S. Jameson & Company blog.
By @Glenford Jameson
Consumers are protected against false, misleading, or deceptive representations of goods or services intended to be purchased; food and food products are no exception. Per the Food and Drugs Act (FDA) and the Safe Food for Canadians Act (SFCA), false, misleading or deceptive labelling or advertising is prohibited on food; consumers have the right to make well-informed and safe food choices, which often results from reading an accurate and compliant label.
But what happens when a consumer does not handle a food product before purchase? What happens if a consumer cannot read the physical label in front of them? What happens if they are dropping groceries into an online basket, and checking out of a grocery store via the Internet? Should they have the same protections against false, misleading or deceptive advertising? Health Canada and the Canadian Food Inspection Agency (CFIA) think so.
On May 9, 2022, Health Canada and the CFIA launched a consultation on the development of voluntary guidance for providing food information for foods sold to consumers for ecommerce. Their proposal is to require all ecommerce sites to provide the same food information that is required to appear on any label of food offered for sale in a physical store. This includes: common name, net quantity, storage instructions, country of origin, a Nutrition Facts table, a list of ingredients, food allergen information and precautionary statements, caution statements, a period of minimum durability (similar to a “best before” date), and commodity specific information such as the percentage of moisture for dairy or the percentage of alcohol by volume (ABV) for alcohol products. The list is quite extensive.
In addition, Health Canada and the CFIA would like to see product images for all foods sold through ecommerce, an indication of how the delivered food may differ from the food being offered for sale online, food information presented in the same way online as it would be on a physical label, a consistent layout for product information pages, food information that is readable by screen readers, and the design of ecommerce platforms as user-friendly and easy to navigate. Again, quite an extensive list.
These intentions are good – consumers deserve transparency – and the decision arose to conduct this consultation because of an increase in online shopping during the early stages of the pandemic (we also suspect far too many undeclared allergens on ecommerce sites). Health Canada and the CFIA also point to the growing, international recognition of the need to extend food information to consumers through ecommerce sites. The Codex Committee on Food Labelling, for example, has convened a working group to develop guidance for food labelling and ecommerce; the European Union provides regulatory oversight to distance selling, and requires mandatory labelling. And yet, we must question how these new requirements might affect small business, especially those in the hospitality industry that pivoted to an online model when faced with pandemic closures, and have maintained their ecommerce presence to re-coup losses.
Paying a UX designer to develop a user-friendly interface is expensive. Paying a photographer to take recent photographs of your food products can also be costly. Consulting a lawyer to review your labels is also not cheap (we should know!). Small businesses that did not require a SFCA licence prior to the pandemic, and therefore were not subject to mandatory labelling requirements because their food products never travelled across borders, will now be required to pivot further because their ecommerce platform might reach someone in another province. All of this has us asking whether this consultation might be too soon?
Regardless, we are pleased to see that Health Canada and the CFIA have provided an online survey and link with questions to answer. Question six is of particular importance: “if you are a business that sells or is considering selling foods to Canadian consumers through ecommerce, please describe any challenges regarding displaying and maintaining current information on product information pages.” Question five also asks for commentary related to the mandatory labelling requirements.
If you would like to voice your experiences, concerns, comments, or questions regarding this proposal, you can access the Consultation here. The Consultation is open until July 8, 2022.
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