Bill C‐36, An Act respecting the safety of consumer
products (Canada Consumer Product Safety Act
(“CCPSA”))1, which received Royal Assent on
December 15, 2010, will substantially revise the
existing regulatory scheme for “consumer
products” and bring the range of regulatory
tracking and enforcement powers to par with
other comprehensive federal health and safety
regulation statutes such as the Canadian
Environmental Protection Act and the Pest Control
Products Act

This article provides a review of most significant
elements of the CCPSA which include: (1) a
mandatory reporting scheme for “incidents,” (2)
general recall powers to be exercised by the
Minister of Health, (3) inspector powers to issue
conduct orders, and (4) new private sector risk
information monitoring and record keeping
obligations to facilitate product tracking through
the supply chain. These obligations include
obtaining and maintaining information on foreign
manufacturers, and providing inspectors with
significantly broader entry and inspection powers.

Broad Coverage

The CCPSA broadens the powers of inspectors
with respect to “consumer products,” which are
broadly defined as “product, including its
components, parts or accessories, that may reasonably be expected to be obtained by an
individual to be used for non‐commercial
purposes, including for domestic, recreational
and sports purposes, and includes its
packaging.”(emphasis added).3

This definition, while elegant, is potentially
broader than the definition in the United States
Consumer Product Safety Act which defines
consumer product as:

any article, or component part thereof,
produced or distributed:

(i) for sale to a consumer for use in or
around a permanent or temporary
household or residence, a school, in
recreation, or otherwise, or

(ii) for the personal use, consumption or
enjoyment of a consumer in or around a
permanent or temporary household or
residence, a school, in recreation, or

Notably, this definition focuses on the intention
of the consumer in purchasing and using a
product, and not on the intention of the
manufacturer or the manner in which a product is
distributed. Many products designed or
marketed for “trade” purposes but capable of
being used by consumers will therefore be subject
to the Act. Consider, for example, the range of
construction tools and equipment typically made
available for consumer rental for DIY projects
including excavation and landscaping products at
“builders’ supply” businesses. A reasonably
cautious approach to such potentially hazardous
products would assume that they qualify as
“consumer products” unless consumers are
prohibited from purchasing or renting them.

The Act then establishes a broad general
prohibition against the manufacture, import,
advertisement or sale of any consumer product that poses a danger to human health or safety, is
subject to a recall under the Act, or is subject to
administrative orders restricting commerce made
under the Act. As with its predecessor legislation,
the Hazardous Product Act,5 certain products will
be expressly prohibited, or prohibited unless they
satisfy safety standards established by regulations
(such as toys, jewellery, household chemicals, and
most recently products containing lead in
children’s products or that may come into contact
with the mouth).

Representations and packaging that misrepresent
consumer products as not being a danger to
human health and safety are also prohibited.

Expanded Inspector and Ministerial

The CCPSA amends and expands on the entry and
inspection powers presently set out in the
Hazardous Products Act.

The entry and inspection powers set out in Bill C‐
36 include the power of entry “for the purposes
of verifying compliance or preventing noncompliance
with [the CCPSA] or the regulations,”6
at any reasonable time to enter a place, including
a conveyance, in which the inspector believes on
“reasonable grounds” that a consumer product is
manufactured, imported, packaged, stored,
advertised, sold, labelled, tested or transported,
or a document relating to the administration of
the CCPSA or the regulations is located.7 Where
the place is a dwelling‐house, the inspector must
have the consent of the occupant or a warrant.8

Upon entry, an inspector will have broad search
and seizure powers: an inspector may examine,
test or sample anything; open a receptacle or
package; examine, copy or extract a document,
and use any computer or other device to do so;
seize or detain an article or a conveyance to
which the Act or regulations apply; direct the
owner or the person having possession to move a
conveyance; take photographs or make
recordings or sketches; direct the owner or
person in charge of the place or a person who
conducts an activity governed by the Act to
establish his or her identity, or to stop or start the
activity; and may restrict the movement of an
“article to which this Act or the regulations

In addition to these entry and search and seizure
powers, the CCPSA empowers an inspector to
submit any samples taken to an analyst for testing
or examination.10

In the two previous versions of the CCPSA,
inspectors also had the power to order a recall
where there are reasonable grounds for believing
that “a consumer product is a danger to human
health or safety.”11 This power is now reserved to
the Minister of Health.12 If the Minister believes
on reasonable grounds that a consumer product
is a danger to human health or safety, he or she
may order a recall. Recall orders can be made to consumer product manufacturers, importers or
sellers. The order must be in writing and state the
reasons for the recall and the time and manner in
which the recall is to be carried out. The recall
power is significant as under the Hazardous
Products Act there is no mandatory recall power
and all recalls must be done on a voluntary or
negotiated basis.

Further, in certain circumstances, including where
the Minister believes on reasonable grounds that
there is a contravention of the CCPSA, the
Minister will be able to order a manufacturer to
take certain measures including: (a) “stopping the
manufacturing, importation, packaging, storing,
advertising, selling, labelling, testing or
transportation of the consumer product or
causing any of those activities to be stopped”, and
(b) “any measure that the Minister considers
necessary to remedy non‐compliance with this
Act or the regulations, including any measure that
relates to the product that the Minister considers
necessary in order for the product to meet the
requirements of the regulation, or to address or
prevent a danger to human health or safety that
the product poses”.13 Under the two previous
versions of the legislation, this power was left to
the inspector.14

The CCPSA also retains the review procedure for
orders under clauses 30 and 31, but now applies it
to the Minister’s orders rather than inspector’s
orders. A person can apply in writing to have the
Minister’s order reviewed by a “review officer”
designated by the Minister. The review officer
may confirm, amend, terminate or cancel the
order. Upon termination of the review, the review
officer must provide written notice of the decision
(along with reasons) to the applicant.15

The CCPSA also requires that the owner and every
person found in the place under inspection give an inspector “carrying out their functions all
reasonable assistance and provide them with any
information that they may reasonably require.”16
This is a common regulatory power of inspection
and is present in the Hazardous Products Act.17
Furthermore, the CCPSA provides, “[n]o person
shall knowingly obstruct, hinder or make a false
or misleading statement either orally or in writing
to an inspector who is carrying out their
functions.”18 Again, this is a common obligation in
regulatory statutes that is also present in the
Hazardous Products Act.19

Tracking Measures – Mandatory Record

In order to provide Health Canada with adequate
supply chain information to support regulatory
action, the Act requires any person who
manufactures, imports, advertises, sells or tests a
consumer product to prepare and maintain
certain documents for six years or any other
prescribed period. For retailers, this covers the
name and address of the person from whom they
acquire a product, and the location where, and
the period during which they sold the product.
For all other persons, the documents must cover
the name and address of the person from whom
they obtained the product or to whom they sold
it. Limited exemptions will apply to second hand
stores and charitable donations.

Regulations may specify time frames for
importers to provide all such documents to
Health Canada. The objective is to provide Health
Canada with supply chain information to facilitate
recalls, identify persons who have violated the
prohibitions of the Act, and to generate a body of
knowledge in respect of likely future sources of
dangerous consumer products.

Similar record keeping and tracking measures
have been in place in Canada for foods, drugs,
and agriculture imports for some time.

Mandatory Incident Reporting

Under the CCPSA, a consumer product
manufacturer, importer or seller must submit a
series of reports when an “incident” occurs. This
provision has remained substantially the same
through all iterations of the Bill.20 “Incident” is
defined in the act as one of four possible things:

  • an occurrence in Canada or elsewhere that resulted or may reasonably have
  • expected to result in an individual’s death or in serious adverse effects on their
  • health;
  • a defect or characteristic that resulted or may reasonably have expected to result in an individual’s death or in serious adverse effects on their health;
  • incorrect or insufficient information on a label or instructions, or lack thereof, that resulted or may reasonably have expected to result in an individual’s death or in  serious adverse effects on their health; or
  • a recall or measure initiated by a foreign entity, a provincial government, a
    provincial public body, an aboriginal
    government, or an institution of a
    provincial government, public body or
    aboriginal government.21

When such an incident occurs, the manufacturer,
importer or seller must provide the Minister and,
if applicable, the supplier with the prescribed
information regarding the incident within two
days after becoming aware of it.22 Ten days later,
the manufacturer, importer or seller must provide the Minister with a written report containing
information about the incident, the product, and
any products that could be involved in a similar
incident as well as measures related to be taken
regarding those products.23 Under Bill C‐52, the
manufacturer, importer or seller only had seven
days to provide the report, but this was extended
to 10 days in Bill C‐6.24 This was the only change
made to the reporting provision since Bill C‐52.

Health Canada has already released a draft of its
Mandatory Reporting Policy for consultation
purposes (Health Canada, Consultation on the
Mandatory Reporting Policy for the Proposed
Canada Consumer Products Safety Act
, online:
. The Policy provides guidance
on how Health Canada will interpret the reporting
requirements under clause 14 of the CCPSA. The
most significant part of the policy is that Health
Canada interprets “person” in the CCPSA as a
“responsible person.”

To trigger the incident reporting requirements, a
“responsible person” must become aware of the
incident. A responsible person is a directing mind
of the organization who, through the exercise of
due diligence, should become aware of an
incident. To determine if an individual is a
directing mind, Health Canada will look at factors
such as the size and decision‐making structure in
the organization, that there may be multiple
responsible persons in an organization and the
nature of the information available to the
organization. This interpretation suggests that
those who are not “responsible persons” may not
be eligible to trigger the reporting requirements
such that, for example, a part time employee
accepting defective product returns may not
create the obligation to report the defect. The
policy, therefore, goes some ways to limiting
manufacturer, importer and seller liability under
the CCPSA.

The draft Mandatory Reporting Policy also
provides some guidance on what constitutes an
incident under section 14 of the CCPSA. For
instance, Health Canada considers serious
adverse health effects to include injuries
necessitating hospitalization or the use of
emergency services, non‐fatal threats to
breathing incidents, and fire or other property
damages that could have resulted in death or
serious adverse effect on health. For defects or
characteristics that could have reasonably
resulted in death or serious adverse health
effects, Health Canada considers that noncompliance
with regulations, certification
requirements or health and safety standards,
manufacturing or production errors or flaws in
product designs trigger the reporting
requirement. For this type of non‐compliance and
for incorrect or insufficient information on labels,
an injury does not have to occur to engage the
obligation to report.

Lastly, Health Canada has provided its
expectations for what and how to report when an
incident occurs. Health Canada will require
manufactures, importers and suppliers to fill out
the Industry Form for Mandatory Reporting,
which uses the same format as the current
Consumer Incident Reporting Form but tailors the
information from the manufacturer, importer and
supplier perspective. Within the two day
reporting time period, Health Canada will require
the manufacturer, importer or supplier to fill out
Parts 1 (information about the report), 2
(information about who is reporting the incident),
3 (information about the incident), 4 (information
about the product), and 6 (information about the
source of the product). For Part 3, the
manufacturer, importer or supplier need only
provide as much information as is currently
available for the information about the incident.

Within 10 days, a complete form will have to be
submitted. The further information would include
information about the manufacturer from the
product label or package (part 5), information
about corrective measures (part 7), and any attachments of pictures or documents to
supplement the report (part 8). If further analysis
or information gathering is required, the timelines
for doing so should be indicated in the report and
the Minister may specify a greater period to make
the report.

The Health Canada Mandatory Reporting Policy
goes some way to making the clause 14 reporting
requirements clear and workable and it remains
to be seen whether industry consultation will
bring changes to the draft policy.

Mandatory Testing

Unlike certain product regulation statutes in other
countries, the CCPSA will not require regulatory
compliance or general safety tests to be
conducted as a prerequisite for Canadian sales.
However, it will continue to be prudent for
Canadian suppliers of products subject to an
express regulatory safety standard (such as
children’s toys) to require proof of compliance
with the standard as a condition of the supply

In light of the broadened scope and
administrative powers under the CCPSA, it will
likely also be prudent for Canadian suppliers of
potentially unsafe products to obtain objective
assurance that the product does not contain any
hidden safety risks and that fully developed
consumer instructions are prepared where the
product necessarily presents some operating
risks, such as home electricity products and
kitchen appliances. It should be noted that
statements in operating manuals arguably
constitute representations that would be subject
to the new safety‐specific misrepresentations
prohibition of the CCPSA.

The CCPSA contains a new general power of the
Minister to order, by written notice, any person
who manufactures or imports a consumer
product for commercial purposes to conduct tests
or studies on the product, to provide the Minister
with the information that he or she considers
necessary to verify compliance, or to prevent noncompliance
with the act or the regulations.

Ministerial orders may also extend to complying
information relevant to ascertaining compliance
and to providing other documents and test
results. This potential obligation to conduct
specific tests for the Minister is separate from the
ongoing general obligation to advise the Minister
of all information relevant to an “incident”, as
discussed above, which can comprehend existing
product test information wherever generated by
the “person” (including its international affiliates).

More extensive product testing before Canadian
sales and more carefully drafted consumer use
instructions will probably be elements of future
tort liability mitigation strategies, given that a
breach of the Act’s prohibitions will often form a
basis for a tort chain. Retailers and other supply
chain members downstream from the importer
and manufacturer can be expected to require
such information in the future in their purchasing
agreements so they can demonstrate their own
due diligence for civil liability purposes.

Implications for Advertisers

As noted in this article, the CCPSA will have
various repercussions specifically for advertisers.
As under the Hazardous Products Act,
“advertisement” is defined broadly to include
“any representation by any means for the
purpose of promoting directly or indirectly the
sale of a consumer product”. Under the Act,
however, advertising has a more prominent place
among the prohibitions. In particular:

  • Clause 8 prohibits advertising any consumer product that the advertiser
    knows is a danger to human health or
    safety, or is subject to recall orders, a
    voluntary recall, and an order to take
    measures or review orders.
  • Clauses 9 and 10 prohibit making false,
    misleading or deceptive claims on a
    consumer product’s package or label, or
    when advertising products, in a manner
    • that may reasonably lead to a
      wrong impression about the
      product’s safety; or
    • that misrepresents its safety
      certification or compliance with
      safety standards or regulations.


These and related provisions in the CCPSA
significantly raise the standard of diligence on the
part of advertisers. They provide a further reason
why it is important for risk managers to review
advertisements, or in fact any promotional
material included in instructions or other product
information, when there is a potential product
safety risk. More to the point, the CCPSA creates
potential offences of omission, arising, for
example, from failure to provide information
regarding the safe use or operation of a consumer
product. Advertisers will need to carefully review
those instances where product information and
product promotion intersect, for example, in
product packaging and inserts, instructions, and
other guidelines for use.

As noted earlier, it will also be incumbent upon all
those interacting with the product, including
advertisers, to maintain adequate information
and records to facilitate product tracking through
the supply chain. This can extend to allowing
inspectors to exercise broadened entry and
inspection powers.

Because sections 8, 9 and 10 of the CCPSA
concern "false, misleading or deceptive claims" by
the advertiser, and the "impressions" of the
consumer, it can be expected that the
interpretation of the prohibitions will be guided
by competition law, where these concepts are
fairly well understood. Their particular
application under the CCPSA in the circumstances
of product safety, however, are not yet clear,
making the advertiser's due diligence in this area
especially important.

Operation with Existing Legislation

The sheer scope of products covered by the
CCPSA raises some concerns about how the
legislation will operate with existing federal
legislation. As noted above, the CCPSA covers
every product, including its components and
packaging, that may reasonably be expected to be
obtained by an individual for non‐commercial
purposes.25 Only two products listed in clause 4
and the 20 types of products in Schedule 1 of the
CCPSA are excluded.26 Those products are
essentially ones covered by other federal
legislation, such as cosmetics (covered by the
Food and Drugs Act) or pest control products
(covered by the Pest Control Products Act).27
Outside of these 22 types of products, the range
of application is limitless, covering anything from
consumer electronics, to furniture, to clothing.

Virtually every Canadian manufacturer, importer
or supplier will be subject to the obligations and
liabilities in the CCPSA and all will be subject to
the discretionary powers of Ministers and
inspectors. Health Canada and its inspectors will
have to be versed in many consumer product
areas to be able to adequately exercise their
powers. This is in stark comparison with existing
consumer protection legislation, which typically
only grants such far reaching powers in very
defined circumstances. For instance, inspectors
have similar powers under the Pest Control
Products Act as they do under the CCPSA.
However, the Pest Control Products Act is
targeted legislation dealing with a specialized
area of consumer products: those which have as
their object the elimination of injurious, noxious
or troublesome animals, plants and organisms.28
Or compare with even broader legislation, the
Canadian Environmental Protection Act, which is still nevertheless restricted to releases of toxic
substances or pollution into the environment.29

Another problem with such a wide scope of
application is that the legislation may create
situations of overlap with provincial legislation
governing consumer safety. For example, in
Ontario, a manufacturer, wholesaler, importer,
product distributor or retailer of electrical
products or devices has reporting obligations
under the Electricity Act, 1998 Product Safety
30 Such persons must report to the
Electrical Safety Authority as soon as possible
upon the discovery of: any serious electrical
incident or accident; or any defect in the design,
construction or functioning of an electrical
product or device that affects or is likely to affect
the safety of any person or cause damage to
property.31 This broad obligation essentially
covers any situation where a consumer or his or
her property becomes damaged by an electrical
product, whether or not electricity was involved.
For example, defective mounting brackets on a
television which could cause injury by dislodging
and falling on a consumer would be caught by this
provision since it is a defect in the construction of
the electrical product that is likely to affect the
safety of a person or cause damage to property.

The boundaries between the CCPSA and existing
legislation such as the Ontario Product Safety
Regulations will have to be established. One
possibility would be imposing dual compliance on
individuals, which would bring with it the
possibility of dual penal sanctions under the
respective legislative regimes. Such double aspect
is not uncommon in Canadian regulation and
courts have considered this to be a hallmark of
Canada’s constitutional structure.32 Another is the possibility that the Federal CCPSA will completely
displace any provincial regulations by operation of
the doctrine of paramountcy. The doctrine of
paramountcy states that where there are
inconsistent or conflicting federal and provincial
laws, the federal law prevails.33 The problem with
this scenario is that there must be clear conflict in
order for paramountcy to apply, such that
compliance with one law would mean noncompliance
with the other.34 A final possibility is
that through dialogue, federal and provincial
governments create some sort of cooperative
scheme whereby compliance with one of the
reporting requirements satisfies the reporting
requirements of the other.

In any event, because of the sheer breadth of the
CCPSA’s subject matter coverage, it remains to be
seen how it will be implemented in such a way
that is manageable for both manufacturers and
sellers of consumer products, and for the
government itself.

Conclusion Limits on Regulatory Powers

The CCPSA will broaden the scope of entry and
inspection powers and conduct order powers
available to the inspectors or the Minister.
Nevertheless, the exercise of these powers is
limited by Charter rights and general principles of
administrative law. The legislation establishes a
number of common restraints on unilateral
inspector and Ministerial action, for example,
requiring a warrant for entry into a dwelling
house, requiring that certain inspector actions
only be taken on “reasonable grounds.” The Act
should also ensure some protection against
unilateral Ministerial action by providing for a
form of internal review.

However, depending on the particular facts of any
given situation, additional restraints on the
unilateral exercise of inspectors’ and Minister’s
powers may still apply. Where, for example, an inspection has become an investigation, section 7
(in the case of an individual) and section 8 (in the
case of an individual or a corporation) of the
Charter would be triggered and, consequently,
inspectors may no longer rely on their entry and
inspection powers.

Furthermore, inspectors and the Minister are
bound to some level of procedural fairness,
particularly in the exercise of conduct order
powers. The level of protection afforded to the
subject of inspector or Minister actions will vary
depending on the particular facts of any given
situation. Where the inspector action or order is
particularly intrusive, e.g., conduct order powers,
and where the risk to human health and safety is
neither imminent nor serious, the restrictions on
inspector or Minister power will be relatively
high. Conversely, where the impact of the
inspector or Ministerial action or order is minimal,
and where the risk to human health and safety is
both serious and imminent, the reverse will likely
be true.

Finally, Bill C‐36 will create a very strict and
detailed reporting regime for product safety
incidents. It is still unclear how this regime will be
implemented in light of the scope of Bill C‐36’s
application and possible conflicts with provincial
product safety legislation that also carry reporting
requirements. Although the draft Health Canada
Policy provides some guidance on what Health
Canada will expect manufacturers, importers and
sellers to report and how to report, it still leaves
unanswered how the administrative scheme itself
will be managed by Health Canada agents given
the increased scope and powers given to it by Bill