With the implementation of the Canada Consumer Product Safety Act (CCPSA) in June of this year, those who are involved in the distribution chain of consumer products must meet new specified obligations.
The most important of these obligations is ensuring that one does not sell an unsafe consumer product. “Selling” includes distribution with or without consideration (i.e., a giveaway of consumer products as part of a promotion or when bundled with another product). Prior to sale, the manufacturer should have completed testing to ensure that the product, as labelled, will be safe when used. Before distribution, evidence should be gathered from the product supplier indicating that the sale of the consumer product, as labelled, is not unsafe. In the U.S., a manufacturer is often asked to provide a certificate confirming compliance with applicable legislation governing consumer products to verify that the consumer product is safe to sell. As such, it would be prudent to follow a similar approach in Canada. In addition, because importers can be called upon by the Minister of Health to conduct studies and assemble data to support the safety of a consumer product, importers should consider whether or not to seek an indemnity from the manufacturer. In addition, the importer should ensure that it obtains an undertaking from the manufacturer to provide the importer with any information Minister of Health requests from the importer, and to conduct any studies the Minister of Health may require.
It is important to ensure that labelling of consumer products provides explicit information regarding safe use of the product, including foreseeable and unforeseeable use. All marketing material, labelling and inserts should be checked carefully to ensure they contain information that is consistent with instructions for the safe use of the product.
As for the specific steps outlined under the CCPSA, those in the distribution chain are required to:
- Maintain records detailing from whom the consumer product was purchased and to whom it was sold. Retailers are not required to retain records regarding to whom they sell consumer products, and instead need maintain only a record of the date and where the product was sold. These records must be kept for six years from the end of the year in which the product was sold, and must be maintained in Canada.
Report any incidents arising from the use of a consumer product to the Minister of Health. Incident reporting seems to be a significant concern to retailers, many of whom receive a substantial number of product returns. Under the CCPSA, retailers will be responsible for determining if the return could give rise to an obligation to report an incident, and if so, for reporting the incident. Each participant in the distribution chain with an obligation to report incidents should ensure they have standard operating procedures for the effective determination of whether an incident has occurred, including:
- gathering information necessary to report to Health Canada.
- having experts on hand to help evaluate whether the consumer product caused the event.
- ensuring that notice is delivered within the required time frame, if an incident is determined to have occurred.
Importers and manufacturers will likely also want access to the returned consumer product in the event that testing is required.
Consumer products covered under the CCPSA are defined as all products, components, parts, accessories and packaging obtained by a person for non-commercial use. There are a host of products that are exempted from the application of the CCPSA, including:
Pest control products
Plants subject to exemption
Prohibited devices under the Criminal Code
Seeds subject to exemption
While it would appear that cosmetics, for example, are exempt from the application of the CCPSA, Health Canada has taken the position that what is actually exempt is the cosmetic itself, but not the container. This interpretation places an obligation on those involved in the distribution chain to maintain records to keep track of the distribution of product containers.
In addition, if an incident arises from a container containing a food, drug, NHP or cosmetic, Health Canada must be notified. In fact, depending on the nature of the incident, the section of Health Canada that oversees the product itself, (e.g., the Natural Health Products Directorate), may also require notice.
In summary, it’s critical to be prepared. Ensure there are standard operating procedures in place that govern record-keeping, the effective routing and administration of customer complaints and the filing of incident reports. Ensure you have information from the supplier confirming the product is safe and in compliance with the CCPSA. For more information on the CCPSA, visit: http://www.hc-sc.gc.ca/cps-spc/legislation/acts-lois/ccpsa-lcspc/index-eng.php.