Packaging & Labeling

Summary of Canadian Packaging & Labeling Laws

A. Introduction

1. Both Federal and Provincial Legislation Applies

Product packaging and labeling is governed in Canada both by federal and provincial legislation and, accordingly, compliance at both levels (federal and provincial) must be ensured.

The most common federal requirements are found in two statutes, the Consumer Packaging and Labelling Act and the Food and Drugs Act, and their respective Regulations. Another key federal requirement is the marking of certain imported goods with their country of origin, pursuant to customs legislation.

Additional requirements may be found in provincial statutes. For example, bilingual labeling requirements are found not only in federal statutes, but also in the Québec Charter of the French Language. Also, specific labeling requirements for stuffed articles (i.e., stuffed toys) are found in certain provinces, including Ontario (see the Ontario Upholstered and Stuffed Articles Act).

2. Specific Types of Products

Many federal and provincial statutes contain regulations on marketing or advertising specific types of products. Federally, the Textile Labelling Act regulates consumer textile fibre products, the Environmental Protection Act regulates advertising on refillable or returnable beverage containers, and the Food and Drugs Act and the Canadian Agricultural Products Act regulate specific food and beverage products. For example, the Canadian Agricultural Products Act regulates specific products under the Processed Products Regulations, Egg Regulations, Fresh Fruit and Vegetable Regulations, Honey Regulations, Maple Products Regulations, Processed Egg Regulations, and Dairy Products Regulations. The Canadian Food Inspection Agency Act ensures that products meet federal standards for safety, quality, quantity, composition, handling, identity, processing, packaging, and labeling. Special requirements and exemptions for specific types of products are found in the various provincial statutes, such as the Upholstered and Stuffed Articles Act of Ontario, and the Charter of the French Language of Québec, as further discussed below.

Therefore, for each type of product, the packaging and labeling requirements must be carefully reviewed. Proposed amendments to statutes should also be considered, such as proposed amendments to the Food and Drugs Act with respect to mandatory nutritional labeling, novel foods, nutrient content claims, and health claims. Government policies and regulatory proposals with respect to labeling of genetically modified foods should also be reviewed in the assessment of upcoming labeling requirements in this particular area.

3. General Prohibitions

Lastly, in addition to mandatory requirements, various federal and provincial Acts contain general prohibitions against making false or misleading statements on product packaging and labeling, or in advertising (e.g., Competition Act, Trade-marks Act). These prohibitions cover not only the actual words used on labels, or in advertising, but also the general impression conveyed, and accordingly, provide the relevant government body with broad discretion to regulate certain words and symbols. Furthermore, third parties, such as competitors, may have a cause of action arising from such statutes. Accordingly, care should be taken to ensure that statements are not misleading in any way. In some cases, the government has published guidelines on advertising or packaging which assist in interpretation of regulations. It is important to determine whether there are any applicable government guidelines.

B. Federal Laws

1. Consumer Packaging and Labelling Act (CPLA)

The Consumer Packaging and Labelling Act (CPLA) contains packaging and labeling requirements for “prepackaged products." The CPLA affects not only goods which originate in Canada, but also goods imported into Canada and thereafter sold in prepackaged containers. The CPLA defines “prepackaged products” as any product that is packaged in a container in such a manner that it is ordinarily sold to, used, or purchased by the consumer without being re-packaged.

The CPLA requires certain information to appear on the product label, namely:

1. The common or generic name of the product;
2. a declaration of net quantity, generally in numerical count or metric units of measurement (although supplementary non-metric measurements may also be used); and
3. the identity and address of the person by or for whom the product was manufactured, sold, or imported (i.e., the dealer identification).

In regard to the dealer identification requirement, if the product is imported, then one of three particular formats must be used:

1. The name and address of the Canadian dealer, preceded by the words “imported by” or “imported for;” or
2. the country of origin adjacent to the name and address of the Canadian dealer; or
3. the name and address of the dealer located outside of Canada.

The Regulations also dictate the placement of labels. Generally, the label must be applied to the principal display panel of the product. What constitutes the “principal display panel” differs depending on the type of packaging, but typically will refer to the prominent surface of the product.

The Regulations to the CPLA require all mandatory information, other than the dealer identification, to appear in both English and French. Therefore, the name of the product, net quantity, and, if applicable, the words “imported by/for” must be in bilingual format. The dealer identification may appear in English or French.

Certain prepackaged products are exempted from all provisions of the CPLA, or from one or more of the individual requirements. Also, the Regulations contain stipulations regarding size and type style of lettering and numbering. Accordingly, the Regulations should be carefully reviewed both to determine whether any of the exemptions apply and to ensure that format requirements have been met.

Note: in addition to setting minimum labeling requirements, other matters are also governed by the CPLA and Regulations (i.e., standard sizes of containers for certain products are stipulated).

2. Food and Drugs Act (FDA)

Requirements pertaining to the advertising, labeling, and packaging of food, drugs, medical devices, and cosmetics are set out in the Food and Drugs Act (FDA) and the Regulations thereto. As noted above, there are also numerous acts and regulations pertaining to specific food products.

3. Country of Origin Marking Program

Pursuant to the federal “Country of Origin Marking Program,” certain goods imported for sale in Canada must be marked with their country of origin. This program is governed by three sets of Regulations, which were enacted pursuant to the Customs Tariff:

1. Marking of Imported Goods Regulations
2. Determination of Country of Origin for the Purpose of Marking Goods (NAFTA Countries) Regulations
3. Determination of Country of Origin for the Purpose of Marking Goods (Non-NAFTA Countries) Regulations

These Regulations differentiate between “NAFTA goods” vs. “non-NAFTA goods.”

Attached to the latter two Regulations are schedules which list the imported goods that must be marked with their country of origin (i.e., one schedule covers NAFTA goods and the other non-NAFTA goods). There are also schedules setting out NAFTA and non-NAFTA goods that are exempted from the Regulations.

The Marking of Imported Goods Regulations provide that the country of origin marking on NAFTA goods may be in English, French, or Spanish, whereas on non-NAFTA goods it may be in English or French. The Regulations further require the country of origin to be marked in a manner that is legible, sufficiently permanent, and capable of being seen easily under normal handling of the goods or their containers. Also, the Regulations state that if the words “Canada” or “Canadian” (or any abbreviation thereof) or the name of any country other than the country of origin appears (i.e. in the address of the dealer) then the country of origin must appear in close proximity to such words and must be preceded by words such as “made in”, “produced in”, “printed in”, etc. The reason is that the display of the word Canada or another country name may mislead the consumer into believing that the product has been made in Canada or that other country.

It is important to note that, at this time, the test to determine “country of origin” is different for goods imported from a NAFTA country versus goods imported from a non-NAFTA country. For goods imported from a non-NAFTA country, the country of origin of goods is simply the country in which the goods were “substantially manufactured." However, since preferential tariff rates are available for certain NAFTA goods, the test to determine country of origin for goods imported from a NAFTA country is much more complex. Accordingly, for goods imported from a NAFTA country, unless the goods are wholly manufactured in a NAFTA country from materials domestically obtained there, the Determination of Country of Origin for the Purpose of Marking Goods (NAFTA Countries) Regulations must be carefully reviewed to determine the country of origin. We understand that the federal government is considering (and has been for a number of years) abandoning the non-NAFTA rules to determine the country of origin.

4. Hazardous Products Act (HPA)

The Hazardous Products Act (HPA) applies to the advertising, sale, and importation into Canada of hazardous products and substances.

The first part of the HPA deals with “prohibited products” and “restricted products." Attached to the HPA is a schedule (Schedule I), which is divided into Part I and Part II. Any product, material or substance included in Part I of Schedule I is called a “prohibited product” and any product, material, or substance included in Part II of Schedule I is called a “restricted product." The advertising, sale, or importation of prohibited products is absolutely forbidden, and the advertising, sale, or importation of restricted products is prohibited except as authorized by the Regulations.

The second part of the HPA deals with “controlled products,” which are products, materials, or substances included in Part II of Schedule I, but not packaged as consumer products (i.e., instead are sold for use in the workplace).

The HPA has many sets of Regulations, each of which is directed to a particular product category. For example, there is a separate set of regulations dealing with toys, which include not only technical provisions but also labeling requirements (i.e. a suffocation warning for toys sold in flexible film bags). The provisions dealing with labeling require that any written statement or warning or other information required by the Regulations appear in English and French.

5. Textile Labelling Act (TLA)

The Textile Labelling Act (TLA) regulates the labeling of consumer textile articles.

The TLA defines “consumer textile article” to mean any textile fibre, yarn or fabric; or any product made in whole or in part from a textile fibre, yarn or fabricthat is in the form in which it is or is to be sold to any person for consumption or use, other than consumption or use in the manufacturing, processing, or finishing of any product for sale.

The term “textile fibre” is defined to mean “any natural or manufactured matter that is capable of being made into a yarn or fabric and, without limiting the generality of the foregoing, includes human hair, kapok, feathers and down and animal hair or fur that has been removed from an animal skin."

The term “textile fibre product” is defined to include: (a) any consumer textile article, or (b) any textile fibre, yarn or fabric used or to be used in a consumer textile article.

Generally speaking, the TLA prohibits the sale, importation, or advertising of “prescribed” consumer textile articles, unless the article has applied to it a label indicating (i) the textile fibre content of the article, and (ii) the name and postal address of the “dealer” (i.e., the manufacturer, processor, finisher, or retailer of the textile fibre product, or the person engaged in the importation or selling of the textile fibre product). If a non-prescribed consumer textile article has applied to it a label containing a representation with respect to the textile fibre content of the article, the label must comply with the TLA and Regulations.

If the product is sold in a designated bilingual area (i.e., Québec, New Brunswick, etc.), the fibre content must be shown in both English and French on the label. Separate labels may be used, one French and one English, provided that the labels are contiguous.

Canadian dealers have the option of indicating their identity by showing a CA Dealer Identification Number, which can be obtained from Industry Canada. Only one dealer identification number will be assigned per legal entity and certain conditions apply.

The textile fibre article must bear the label at the point of sale. The permanency of the label depends on the type of article. For articles listed in Schedule I to the Regulations (i.e. clothing such as jackets and pants, etc.), the labels must be permanently attached and able to withstand ten cleanings, whereas articles listed in Schedule III (i.e., hats and gloves, etc.) may bear a paper label.

Certain consumer textile articles are exempted from the labelling requirements of the TLA, and they are set out in Schedule II to the Regulations. Exempted products include toys and ornamentations. However, if exempted products are labeled, they must be labeled in a manner which is neither false or deceptive.

C. Provincial Laws

1. Québec - Charter of the French Language

As noted above, bilingual requirements are contained in federal statutes, and these requirements must be met regardless of where the products are sold in Canada. However, to the extent that business is carried on in Québec, the more onerous bilingual labeling requirements of the Québec Charter of the French Language (the Charter) must also be met. The Charter is enforced by the Québec “Office de la langue française."

Chapter VII of the Charter sets out language requirements for commerce and business and the Regulation respecting the language of commerce and business, provide exemptions to the general requirement under the Charter, as further discussed below.

Section 51 of the Charter requires that every “inscription” on a product, its container, or packaging, or on a leaflet, brochure, or card supplied with it (including directions for use and the warranty certificates) must be in French. If the French inscription is accompanied with a translation or translations, such translations may not be given “greater prominence” than the inscription in French.

Certain products may bear inscriptions exclusively in a language other than French. For example, inscriptions on certain cultural or educational products (books, magazines, publications, disks, films, or tapes), or non-promotional greeting cards, appointment books, or calendars, may be exclusively in a language other than French, if their content is in a language other than French, or if they have no language content. Other exemptions to Section 51 may be found in Division I of the Regulations.

Section 52 of the Charter sets out French language requirements for catalogues, brochures, folders, commercial directories, and any similar publications. Exemptions to such requirements may be found in Division II of the Regulations.

Section 54 of the Charter prohibits the offering of toys or games to the public, which require the use of a non-French vocabulary for their operation, unless a French version of the toy or game is available on no less favorable terms on the Québec market.

Section 58 of the Charter sets out French language requirements for public signs, posters and commercial advertising. Exemptions to such requirements may be found in Division III of the Regulations. Section 58 of the Charter states that where both French and text in another language are displayed on a public poster, a sign or in a commercial advertisement, the French must be "markedly prominent."

Markedly Prominent: Section 1 of the Regulation defining the scope of the expression "markedly predominant" for the purposes of the Charter of the French Language states that French is "markedly predominant" where the French text has a "much greater visual impact" than the text in any other language.

Much Greater Visual Impact: Sections 2, 3, and 4 of the Regulation defining the scope of the expression "markedly predominant" for the purposes of the Charter of the French Language set out when the French text is deemed to have a much greater visual impact than the English text. According to Section 2, if French and English, for example, appear on the same sign, the French text is deemed to have greater visual impact than the English text if the French text and the space allotted to the French text are twice as large as the English text and there are no other elements that detract from the French text. Section 3 deals with the presentation of French and English text on different signs or posters of the same size. Section 4 deals with the presentation of French and English text on different signs or posters of different size.

Chapter VII of the Charter also sets out French language requirements for firm names and certain business documents, such as contracts, invoices, etc. In regard to the firm name requirement, an exception is set out in Division IV of the Regulations.

Exemptions For Specific Inscriptions

Whereas sections 51, 52 and 58 of the Charter provide for the general rule that all inscriptions on products, commercial documentation, and public signage must be in French, sections 7, 13 and 25 of the Regulation Respecting the Language of Commerce and Business provide that certain inscriptions on products, commercial documentation, and public signage may be exclusively in a language other than French, such as:

1. The firm name of a firm established exclusively outside Québec;
2. a name of origin, the denomination of an exotic product or foreign specialty, a heraldic motto, or any other non-commercial motto;
3. a place name designating a place situated outside Québec or a place name in such other language as officialized by the Commission de toponymie du Québec, a family name, a given name or the name of a personality or character, or a distinctive name of a cultural nature; and
4. a recognized trademark within the meaning of the Trade-marks Act, unless a French version has been registered.

Regarding the place name exemption (no. 3 above), we have been advised by the Office that phrases such as “made in” need not be translated.

As for the trademark exemption (no. 4 above), a Commentary on the Charter published by the Office de la langue française indicates that the phrase “a recognized trademark within the meaning of the Trade-Marks Act” applies to both registered and unregistered marks; nonetheless, the prudent approach would be to ensure that an application has been filed for the relevant mark. However, if a French version of the trademarks are registered, then it must be used.

2. Ontario - Upholstered and Stuffed Articles Act

Currently, Ontario is one of three provinces in Canada to have legislation governing the labeling of upholstered and stuffed articles. (The other two provinces are Manitoba and Québec.) The Ontario Upholstered and Stuffed Articles Act broadly defines “upholstered and stuffed articles” to mean “an article any part of which contains stuffing,” and requires that such articles be labeled as prescribed by the Regulations immediately after their manufacture, with the labels applied so that they are easily visible. The sale of such articles without the required labels is prohibited.

All three provinces require “manufacturers” of upholstered or stuffed articles to be registered. “Manufacturer” is defined by the Ontario Upholstered and Stuffed Articles Act to mean “a person who inserts and covers stuffing in any article or part thereof in the manufacture of an upholstered or stuffed article or any part thereof.”

It is sufficient for a manufacturer to apply one label complying with the requirements of one of the three provinces, provided that the manufacturer has been registered in all three provinces. Apparently, the three provinces are in the process of preparing a uniform label, and the proposed label most closely resembles the currently existing Ontario label.

The Regulations set out the colour, size, and format of the labels. For example, articles stuffed with new materials must bear white labels, which must be in one of two formats (shown in Forms 1 and 2 of the Regulations). The minimum size of the label is also mandated, and corresponds to the format chosen for the label.

The Regulations also set out the informational content of the labels. For example, where the article contains new material only, the label must indicate, among other things, that the article contains new material only, the main stuffing materials, the manufacturer’s identification number. No other information may appear on the labels, except the name and address of the manufacturer, if the manufacturer desires, or information required by federal laws, if the manufacturer wishes to use an extended version of the prescribed label. Despite the latter provision, no name other than the name of the manufacturer may appear on an extended version of the prescribed label, and, accordingly, in some instances, a stuffed article will need to bear more than one label to comply with both federal and provincial labeling requirements.