T
he Canadian health food industry is facing a crisis. As consumers, retailers, distributors and manufacturers, we have been duped into a losing game of progressive incrementalism. Dangling carrots of “approved claims” and “increased consumer confidence”, a succession of federal governments have fronted an odious policy from the senior levels of the Health Canada bureaucracy, a policy that has had the reverse effect. The “unmoved mover” behind the policy is the bureaucratic zeal to bind Canada to international standards, promulgated by international agencies, whose existence and power are directly proportional to their capacity to benefit global industry. The reality for the plutocrats who seek to destroy our domestic health food business is that our legal system is stacked against them. In our British legacy system, we have a “black list” system of regulation: unless it is specifically forbidden it is allowed, with legal remedies if the restriction is deemed by the courts as arbitrary or impinging upon our God-given rights. Our bureaucrats want us to “harmonize” our regulations with the irreconcilable, European (Napoleonic Code) “white list” system: unless it is specifically allowed, it is forbidden, with no right of appeal as your rights are a gift from the state, not a birthright. The new policy is always “just about ready” and promises pie-in-the sky rewards for the health food industry and consumer alike. In reality, the situation always gets worse. Small manufacturers, overwhelmed with regulatory burden, fail. Products disappear from shelves. Consumer choice is limited. Importers wind up competing against grey-market, same-label goods at discount prices because not all importers follow the same rules. Enforcement is uneven. In June of 1997, Freedom of Choice in Health Care filed suit against Health Canada in Ontario Provincial Court. It was challenging Health Canada’s imposition of Site Licensing Fees on the manufacturers of health foods. It argued that Health Canada bureaucrats could not impose a new tax based on regulation, and that only parliament had the power to tax. This forced the Chrétien government to rethink its position, ultimately withdrawing the proposed regulation and embarking on one of the federal government’s largest ever public consultations. The Standing Committee on Health held public meetings from coast to coast; MPs heard directly from hundreds of stakeholders and received more than one million “sincere constituent contacts” and hundreds of thousands of petitions
supporting personal freedom of choice in the use of health foods. This led to the publication of the New Vision report and the subsequent Transition Team Report and the establishment of the Office of Natural Health (ONHP), currently known as the Natural Health Products Directorate (NHPD). Although the report is long on detail and covers many issues addressed by the existing regulatory scheme, one of the main recommendations is the striking down of Schedule A and Section 3.1 and 3.2 of the Food and Drug Act. (Schedule A is a list of about 40 diseases and Sections 3.1 and 3.2 make it an offence to advertise or sell to the general public any product that prevents, treats or cures any of the diseases listed on Schedule A.) The other main point of the report is that health foods should be regulated differently than drugs and that any regulation recognize the product’s “wide margins of safety” and the freedom of informed individuals to have free access to the products of their choice for self-care. In December of 2001, the Proposed Regulatory Framework for the regulation of health foods, which, with no legislative authority, it referred to as Natural Health Products, was published in the Canada Gazette. The proposed regulatory scheme was universally attacked as a betrayal of the Standing Committee report and even of the significantly watered down 53 Recommendations which were purported to summarize the New Vision report. After more than a year of foot-dragging and fighting on the part of Health Canada, Private Members Bill C-420 was given first reading in the House in March of 2003. The bill sought to do by legislation what the bureaucrats were stifling. Namely, to treat the products more like food and get rid of sections 3.1 and 3.2. Grudgingly, an amended Gazette was published in June 2003 and an impossible task, a task designed to fail, was shouldered by the under-funded, under-staffed NHPD. Steady parliamentary pressure and scrutiny was applied to the Health Canada’s corporate cabal and in a testament to widespread parliamentary dissatisfaction, Bill C-420 passed second reading by a well-briefed House in October of 2003, with all-party support and hundreds of thousands of petitions. With the June 2004 election, C-420 died on the order paper, but was reintroduced in Paul Martin’s new parliament and given unanimous consent at second reading to go to committee and resolve the many outstanding issues with the rapidly failing new regulatory scheme. continued on p. 39
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