Solutions Newsletter - Fruit and Vegetable Dispute Resolution Corporation

Navigating Regulatory Import Requirements and Contractual Obligations

Romaine lettuce from the United States (U.S.) is in full swing. It is important to remind the industry to be informed of Canadian regulatory import requirements and aware of contract expectations for this commodity.

Multiple cases of E. coli O157:H7 illnesses in Canada have been linked back to romaine lettuce from specific areas of California in the past. Therefore, adhering to regulatory import requirements is essential. On July 20, 2023, the Canadian Food Inspection Agency (CFIA) issued a notification outlining Temporary Import Requirements for Romaine Lettuce from the United States.

These Canadian requirements affect any romaine lettuce and/or salad mixes containing romaine lettuce from a recurring geographical area associated with the U.S. outbreaks. This area encompasses the California Salinas Valley counties of Santa Cruz, Santa Clara, San Benito, and Monterey.

When importing romaine lettuce and/or salad mixes containing romaine lettuce into Canada, Canadians are required to do the following:

Provide proof that the product does not originate from the counties mentioned above.
If the shipment originated from the counties mentioned above, an attestation form and Certificates of Analysis for each shipment must demonstrate that the romaine lettuce does not contain detectable levels of E. coli O157:H7.

It is common knowledge that U.S. growers/shippers include exclusionary language in their invoices. For example, “bruising and/or discoloration following bruising” would be inserted. This is an essential aspect that buyers need to be aware of. While buyers in the U.S. are familiar with this exclusion, it doesn’t necessarily automatically apply to other jurisdictions like Canada (unless it can be proved that this exclusion was agreed).

It is imperative to look closely and double-check all documents you are receiving, including all contract terms that were agreed upon. If you notice a wording or term you are unfamiliar with or did not agree to, immediately bring it to your supplier’s attention, preferably in writing.

In the event of a dispute, the burden is on the parties to prove that all terms were discussed, Understood, and Agreed Upon (DUA). If you buy romaine lettuce from the U.S., you must be aware of any exclusionary language used and double-check all documentation. As best practice, verifying documentation to ensure contract terms are as agreed should not be limited to romaine lettuce only. Take the necessary precautions and avoid potential disputes by reading and understanding all documentation accurately.

If you have any questions regarding the article, or you have media enquiries, contact:

Nicole MacDonald
Communications & Marketing Specialist
Fruit and Vegetable Dispute Resolution Corporation
[email protected]
1-613-234-0982

There is considerable uncertainty surrounding the responsibilities of a buyer or receiver in cases where they need to dispose of a portion or the entirety of a shipment that no longer holds any commercial value upon receipt. Section 9 of the Fruit and Vegetable Dispute Resolution Corporation (DRC) Trading Standards clarifies:

“Reasonable cause for destroying or disposing of any produce exists when the commodity has no commercial value … The term “commercial value” means any value that a commodity may have for any purpose that can be ascertained by the exercise of due diligence without unreasonable expense or loss of time. When produce is being handled for or on behalf of another person, proof as to the quantities of produce destroyed or discarded in excess of five percent of the shipment shall be provided by procuring an official certificate regarding the actual disposition of the discarded produce…”

An “official certificate” is a federal inspection indicating a very high percentage of condition defects demonstrating no commercial value. It can now be discarded.

For instance, a buyer receives 4,000 cartons of mangoes in poor condition. An inspection by the Canadian Food Inspection Agency is requested and performed in a timely manner, showing 2% decay, 12% bruises and 5% shrivelling. Since the mangoes have more than 15% total defects, it means the shipment does not comply with DRC’s Good Arrival Guidelines. In this case, the buyer can choose to renegotiate the contract or claim damages.

After salvaging the product, the buyer submits an account of sales showing each lot sale less expenses. In the sales section of the liquidation report, 700 cartons were reported as discarded.

Should the buyer have requested an inspection showing the mangoes’ condition before discarding them?

The answer to this question is “Yes”. The buyer discarded 700 of the 4,000 cartons received. In other words, 17% of the entire load was disposed of, which exceeds the 5% threshold.

It is important to note that when disposing or destroying more than 5% of a load, an official certificate is required to demonstrate that the product has no commercial value. A dump certificate alone is not sufficient evidence, as it only indicates the amount of product disposed of or destroyed. Therefore, a government inspection is necessary to comply with regulations.

For more information or media inquiries, please contact:

Nicole MacDonald
Communications & Marketing Specialist
Fruit and Vegetable Dispute Resolution Corporation
[email protected]
1-613-234-0982