Manufacturers, importers, packagers, advertisers, distributors and sellers of consumer products take note of the Canada Consumer Product Safety Act (the Act) which will come into force on June 20, 2011.
The Act, touted as updated legislation adopting modern tools and techniques that strengthen protection and bring Canada’s consumer product safety system into line with key trading partners, is administered by Health Canada. The Act places responsibility on the industry for the safe manufacture, import, packaging, storing, advertising, labelling, testing, transportation and sale of consumer products. Consumer products include children’s toys, household products, recreational and sporting goods, as well as their packaging. The Act does not apply to motor vehicles, food, drugs, natural health products and animals already covered by other Canadian legislation.
Some of the key components of the Act include:
- imposing an early warning reporting obligation to Health Canada wherein information concerning safety incidents or product defects that result, or could reasonably be expected to cause death or have an adverse effect to an individual’s health, including injury. Similarly, once becoming aware of any incident related to the consumer product, such person must provide information relating to the product within two days after they become aware of the incident.
- requiring any person who manufactures, imports, advertises, sells or tests a consumer product to maintain accurate records and paperwork so that unsafe products can be traced back to their source. These records are required to be kept in Canada unless an exemption is obtained from the Minister. These reporting requirements are more detailed at higher levels of trade.
- requiring manufacturers or importers to provide or obtain safety information that indicate whether a consumer product meets the requirements under the Act. This includes information concerning studies or tests.
- prohibiting the manufacture, importation, sale or advertisement of consumer products that could pose an unreasonable danger to the health and safety of Canadians.
- prohibiting the packaging, labelling or advertisement of a consumer product in a manner that is false, misleading or deceptive in respect of its safety.
- effecting a recall as required by the Minister of Health.
One of the key effects of the Act is that it provides the Canadian government with a larger toolkit to take enforcement action including to authorize mandatory recalls. The Act permits the Minister of Health (the Minister) to order any person who manufacturers or imports a consumer product for commercial purposes to conduct tests and studies to provide evidence of compliance with the Act. The Minister is also given broad inspection powers under the Act to enter into any place of business where a consumer product is manufactured, imported, packaged, stored, advertised, sold, labelled, tested or transported, to take samples, seize and detain any article, take photographs and examine computer systems. According to Health Canada, the number of product safety inspectors would be doubled. The Canada Border Services Agency, the agency responsible for enforcing the legislation governing the flow of persons and goods across the Canadian border, will assist Health Canada with additional targeted inspections of consumer products and shipments from companies who have a history of poor compliance. According to Health Canada, inspections will continue to be conducted according to a strategic risk assessment approach and by working with the Canada Border Services Agency, dangerous consumer products will not be allowed to cross the border.
It is unclear how the Act will co-exist with existing federal legislation such as the Consumer Packaging and Labelling Act. The Act has introduced a new regulatory regime that is intended to address problems before they occur, to permit Health Canada to keep a close watch on what they deem to be higher risk consumer products and to grant the government broader powers to take immediate action in enforcement. How the Act will be implemented, the use of the Minister’s broad discretionary powers and how it will affect manufacturers and sellers of consumer products remains to be seen.