Friday, November 22, 2013

Pollo Campero to Canada!

Ah, the good stuff.
I think everyone in Latin America knows how delicious Pollo Campero is (although a friend of mine calls it Pollo Con Pello). This unique Guatemalan/Salvadoran treat uses a special brining and flouring process and excellent and tasty, locally raised chicken to produce a terrific product. I think it was good enough to recently put KFC in El Salvador out of business.

My son has visited me here several times and loves the chicken. He once drove from Toronto to Florida to eat Pollo Campero (which has numerous franchises in the US). But the chicken doesn’t taste the same there, probably because the chickens here are less aggressively farmed and may be fresher. In fact, the grocery stores in El Salvador routinely sell locally raised chicken (that is smaller, yellower and not frozen) for $1.50 a lb while the giant, white and pre-frozen US chicken is sold at $1.00 a lb. I once bought three pieces of each chicken for grilling in a “taste-off” and was amazed that the local sample had an intense chicken flavour while the US import tasted watery and bland in comparison.

"Sharing the flavour with my friends, with my family, with the whole world" ... except for Canada

This is another reason why people travelling from the San Salvador airport to the US still purchase special large bags full of Pollo Campero at the airport even though they can get the fresh cooked version locally. And this is being done legally.

What would happen if you tried to bring the deliciously fried Pollo Campero into Canada? I did try on one occasion when my son asked for some chicken. I went to the San Salvador airport which is mostly run by Taca, the local carrier (recently bought out by the Colombian based Avianca and is being slowly and painfully debranded), and has a very busy Pollo Campero outlet with way too few tables upstairs. At lunch time, there is always a huge line up for chicken but, somehow, by the time the chicken is served, a table magically opens up or you can always ask to share a table. So I purchased 12 pieces of chicken, ate one in the restaurant (steaming hot and delicious), ate two more on the airplane (cooled down but still delicious), and declared the chicken to the customs official. Bam – or Squawk rather – off to a secondary customs check. I opened my bag and showed the 9 remaining pieces of chicken, sealed in a Ziploc bag, to the very polite officer. He said that I could not enter with the chicken. I mentioned that it was commercially prepared and fully cooked but he said no way. He did say that I could eat the chicken rather than surrendering it ... but I already had 3 pieces of chicken and was full!

So I had to tell my son that there was no fried chicken for him and he would have cried himself to sleep if he wasn’t 24 years old at the time.

The Chinese get to eat it too.
Now what happens if you don’t declare your friend chicken? Consider the sad case of Mario Castillo. He was in El Salvador visiting his family and before his flight, he was in the shower when his mother secreted 15 pieces of fried chicken with a stated approximate value of $18.00. The chicken was discovered by the crack Canadian Border Services Agency Officer on the night of 25 January 2012.
The attempted illegal importation of fried chicken was considered by the Agriculture and Agri-Food Administrative Monetary Penalties Regulations as a contravention of section 40 of the Health of Animals Regulations and classified as a “serious violation” which resulted in an $800 fine for Mario.

Mario had the choice of paying $400 within 15 days but he stuck to his guns and bad legal advice and decided to have his day in court. On 2 November 2012, he went before the Canada Agricultural Review Tribunal whose stellar adjudicators decided to throw out the case on a technical issue of Mario not being given “a reasonable opportunity to justify the importation of a meat product found [in] their bags.”

So justice for Mario and perhaps his mother could stop feeling so guilty about using her son as a fried chicken mule.

But wait a minute, slow day in the Canada Border Services Agency legal department and they decided to appeal to the Federal Court of Appeal - the second highest court in Canada! I better not find out that there is outside counsel involved who are charging the Canadian Government (and taxpayers) a huge hourly rate for this!

 The Federal Court of Appeal held the hearing in Toronto on 30 September 2013 and delivered their decision on 20 November 2013. See .  In a nutshell, Justices Sharlow, Mainville and Near decided that the appeal should be allowed, that this was an absolute liability violation and it was immaterial that his mother had packed the chicken without his knowledge (akin to the dog ate my homework defense) and that the tribunal erred in law in deciding that Mario should have been provided with a reasonable opportunity to justify his importation of fried chicken. What does that mean? Back to the Canada Agricultural Review Tribunal. Thankfully, no costs were ordered.

From infraction (sorry, “serious infraction”) to a federal appeal in less than two years - not bad Canadian legal system! Now let’s start a crowd funding drive to raise money to take this to the Supreme Court of Canada. IF YOU LOVE FRIED CHICKEN, DO NOT LET US DOWN.

Hmm, never mind. This stupid blog is enough work as it is.

Elliot about to attack a heaping plate of Pollo Campero.
But my son living in Canada does love the chicken. So how do you get the fried chicken past the Canada Border Services Agency? What permits or certificates could you obtain to import fried chicken? Or to paraphrase the appeals court decision, how do you satisfy a CBSA Officer, on reasonable grounds, that the chicken was processed in such a way that would prevent disease from coming into Canada?

So I went onto the Agriculture and Agri-Food Canada government website and hunted around. Obviously, not easy to find guidance on this and the regs were no help so I decided to send them a message:

I am a Canadian lawyer living in El Salvador. My son has visited me on several occasions and loves a local fried chicken brand called Pollo Campero. They are very large with several hundred locations in Latin America, the US and internationally in Spain and China. It is legal for travellers to bring the cooked chicken from El Salvador to the United States and this frequently occurs with a restaurant in the San Salvador international airport providing special packaging for carrying on the chicken. But it appears that it is illegal to bring the chicken to Canada and I experienced it when I flew back one time and declared it - I was told that I could eat the chicken on the spot but would have to surrender the remaining chicken for disposal. A recent Federal Court of Canada decision adjudicated on the case of an individual who was apprehended entering Canada with fried chicken. They refer to certain exemptions at Part IV of the Health of Animals Regulations but these provisions are quite vague. The case mentions "CBSA Officer was not satisfied on reasonable grounds that the chicken was processed in such a way that would prevent disease from coming into Canada." How can one satisfy a CBSA Officer that commercially prepared fried chicken was processed to prevent disease from coming into Canada?

I also wrote to Pollo Campero on FB: 

Sabes que esta legal a traer Pollo Campero a EEUU pero esta illegal a importar a Canada. Porque y puedes hacer algo? Mira este caso en el segundo mas importante tribunal en Canada

I will follow up when I hear back ... if I hear back.

Wow, all this talk of fried chicken is making me hungry. Guess what I am going to have for dinner!  And anyone looking for a great franchising opportunity in Canada ... this is it!