Companies distributing goods into Canada would be wise to take heed of Transport Canada’s recent encroachments into areas of consumer product safety.

Much attention was paid to the recent Notice to Airmen issued by Transport Canada’s Civil Aviation unit (TSSA), effectively requiring the broadcast warning of a ban on the transport of certain cell phones containing volatile lithium batteries.

These constant broadcasts would have seemed unusual to air passengers, which have instead looked to Health Canada’s for product safety and recall notifications. More importantly, the TSSA recommendations also served as notice to producers and brand owners of consumer goods that Transport Canada has entered the fray of actively overseeing the safe carriage of personal use consumer products.

Broad Powers of Transport Canada

Transport Canada has long had the broad powers to issue Protective Directions relating to any goods, including consumer items, with “dangerous” content, extending beyond shipping parties themselves to any:

“person engaged in the importing, offering for transport, handling or transporting of dangerous goods, or supplying or importing standardized means of containment”.

The targets of such Protective Directions have, however, mainly been transportation-related equipment and their makers and operators. Other than the now familiar list of items deemed potential in-flight security risks, consumers and their personal goods have been largely left to Health Canada to regulate.

ICAO’s Lithium Battery Cargo Bans

The change arguably started with the May 2016 Protective Direction issued by Transport Canada regarding the lithium battery as cargo on passenger flights.

The Protective Directive was required for consistency with the International Civil Aviation Organization (ICAO) Council ban on the transport of lithium ion batteries as cargo on passenger aircraft. (In 2014, ICAO announced a similar ban on cargo shipments on passenger aircrafts of lithium metal batteries).

Restrictions upon air transport of lithium batteries, presumptively but not necessarily as cargo, are reinforced by “special provisions” under the Transportation of Dangerous Goods Regulations codifying the ICAO Technical Guidelines changes.

From a Cargo to a Consumer Ban

What has been novel recently is Transport Canada’s assertion of jurisdiction over a (non-threatening) consumer good and its brand owner who merely have the (mis)fortune of the patronage of the travelling public.

Not only would this assertion of Transport Canada authority likely come as a surprise to makers of lithium battery-containing products, but it appears to form part of a 2016 watershed for other consumer product regulation by Transport Canada.

New Reporting Also Extends Beyond Cargo

Within a month of Transport Canada’s Protective Directive came Amended Transportation of Dangerous Goods Regulations which, while maintaining the classification structure of the United Nations Model Regulations, imposed a number of proactive policing measures – some with the effect of extending Transport Canada’s oversight of the personal movement of consumer goods

Most notably, the Amended Regulations impose, in respect of air transportation, an immediate reporting obligation upon any “person” for undeclared (or mis-identified) dangerous goods without minimum thresholds, the targeting of conventional shipping parties or any distinction between personal carriage and cargo.

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In short, consumers now have some of the same Transportation of Dangerous Goods obligations, including “post-incident” reporting duties, as commercial parties and it only remains to be seen as to how far Transport Canada will go in the name of safety and security in carving out regulatory space within the consumer product safety field.