A recent Leger poll indicates that 81 per cent of Canadians have either significantly increased or plan to increase their purchase of Canadian-made products.
With Canadian consumers increasingly choosing local products, more food and beverage companies are adopting labels like ‘Made in Canada,’ ‘Product of Canada,’ or even ‘Roasted in Canada’ to appeal to the rising national sentiment. These claims are legally regulated, and there can be severe consequences for non-compliance.
Kloes specializes in advertising, marketing, and consumer protection law. Photo © Candice Kloes
According to Candice Kloes, a counsel at Borden Ladner Gervais (BLG), who specializes in advertising, marketing, and consumer protection law, the legal landscape for such claims is not always straightforward due to various pieces of legislation and differing guidance depending on the product type.
“There are various pieces of legislation, different laws and guidance that apply to products in Canada when it comes to making these types of claims,” Kloes said.
Canadian Food Inspection Agency (CFIA) and the Competition Bureau share jurisdiction over these claims, depending on the context.
While CFIA oversees food labelling, the Competition Bureau focuses on ensuring that marketing and advertising practices comply with the Competition Act.
‘Product of Canada’ vs. ‘Made in Canada’
For food products, Canadian claims are subject to general prohibitions in the Food and Drugs Act and the Safe Food for Canadians Act, which prevent representations that are false, misleading, or likely to create an erroneous impression regarding a food product’s origin. The CFIA provides specific guidance for these claims.
Kloes explained that CFIA guidelines differentiate between ‘Product of Canada’ and ‘Made in Canada’ claims, both of which are voluntary. ‘Product of Canada’ is the more stringent claim, requiring that “all significant ingredients, manufacturing process, labour, etc., must have happened in Canada.” Negligible traces of foreign ingredients may be permissible, but virtually all ingredients and the labour involved in the manufacturing process must originate from Canada. For example, milk, where cows are in Canada, and the entire process from milking to packaging occurs domestically.
In contrast, the ‘Made in Canada’ claim is less strict. It permits the inclusion of ingredients from other countries, provided that “the last substantial transformation of the product happens in Canada.” For instance, if pasta is imported from Italy but used to create lasagna in Canada, it can be labelled ‘Made in Canada.’ However, a critical requirement for ‘Made in Canada’ claims is the inclusion of a mandatory qualifying statement, such as “made in Canada from imported ingredients” or “made in Canada from local, domestic and imported ingredients,” ensuring truthfulness.
“To assist business in complying with this prohibition, CFIA has provided guidance for Canada origin claims that is specific to foods, which businesses should be familiar with if they intend to make any ‘Canadian’ claims for their products,” said Katrina Coughlin, a partner in the Ottawa office of Gowling WLG, specializing in food and drug regulatory law.
“Businesses making a ‘Product of Canada’ or ‘Made in Canada’ claim should ensure that they have documentation available to substantiate that they meet the applicable requirements for that claim. In addition, it is important to take note of CFIA’s requirement for a qualifying statement to accompany a ‘Made in Canada’ claim,” she added.
‘In Canada’ claims and imagery
Beyond these broad categories, businesses can use more specific claims such as ‘Distilled in Canada,’ ‘Roasted in Canada,’ or ‘Canned in Canada.’ Coughlin said that these claims “may offer a more favourable or accessible approach for some businesses or products.”
These are acceptable if the claims are truthful and do not create a misleading impression of the product’s origin. Kloes cited coffee, which is always imported as beans, as an example where ‘roasted and blended in Canada’ is a truthful claim. Other examples include ‘distilled in Canada’ for bottled water, ‘packaged in Canada’ for bulk imported food packaged domestically, and ‘prepared in Canada’ for food entirely prepared in Canada. However, Kloes further clarified that claims like ‘processed in’ or ‘prepared in’ should be used with caution due to potential consumer confusion.
“Claims such as ‘processed in’ or ‘prepared in’ that are more vague should be used with caution as it may not always be clear to a consumer how these claims differ from being ‘Made in’,” said Coughlin.
The use of Canadian imagery, such as a maple leaf or the National Flag of Canada, is also considered an implied claim about origin and must be truthful and not misleading. The National Flag and the stylized 11-point maple leaf are subject to trademark protection. Their commercial use typically requires permission from the Department of Canadian Heritage, which assesses usage to ensure it aligns with their guidelines and maintains the symbols’ integrity.
Legal considerations and consequences
The overarching principle for all ‘Canadian’ claims, whether explicit text or implied through imagery and context, is that the overall general impression must be truthful. “Even if it is practically correct, if you use it in a way that implies a different meaning, one can get into trouble,” Kloes said, emphasizing that placement, colours, and images all contribute to the consumer’s perception.
While these labels are not mandatory, companies often choose to use them due to strong consumer sentiment favouring Canadian products.
“Regulators generally permit these claims if executed properly, but issues arise when a company is trying to take advantage of consumers and lead consumers into thinking that the products are Canadian … when they are not,” Kloes said.
In instances of non-compliance, CFIA has the authority to recall improperly labelled products. Further, potential consequences can include fines and criminal liability.
Regarding provincial differences, CFIA guidelines primarily address national claims. While they do not specifically cover regional or provincial content, they define ‘local’ as food produced in the province or territory of sale, or within 50 km across provincial borders.
Provincial consumer protection laws also contain general provisions prohibiting misleading claims.
While origin claims can strengthen consumer trust and build brand loyalty, the advice for companies is to be diligent and cautious.
“My guidance to manufacturers is clear: ‘Be truthful. Be specific. And when in doubt, ask’,” said Kloes.
