In the May 2008 Osler Advertising and Marketing Review, we reported on new consumer product safety legislation which had been introduced last year as part of the federal government’s Food and Consumer Safety Action Plan: Bills C-51 and C-52. When Parliament was dissolved on September 7, 2008 to issue writs of election, both Bills died on the order table. Recently, the Conservative government re-introduced an adapted version of Bill C-52, which proposed to replace Part I (Prohibited and Restricted Products) of the Canada Hazardous Products Act (HPA) and introduce a new safety regime for consumer products. The new Bill C-6, the Canada Consumer Products Safety Act (CCPSA), is substantively similar to the former Bill C-52, although the government has attempted to address some of the concerns expressed by industry stakeholders under Bill C-52. This article summarizes some of the substantive changes incorporated into the revised version of the proposed CCPSA.
Changes to the Definition of “Danger to Human Health or Safety”
To address concerns that the former definition of “danger to human health or safety” was too broad, in that it could capture dangers that cannot reasonably be eliminated by manufacturers (e.g., sharp knives or cooktops that may provide dangerous hot surfaces), the definition was amended to apply to any existing or potential unreasonable hazard.
Prohibition Against Advertising and Selling Unsafe Consumer Products
Formerly, the prohibition against advertising and selling unsafe consumer products applied to persons who know or ought to know that such products are a danger to human health or safety. Under the new Bill C-6, the standard has been lowered from an objective to a subjective standard: the prohibition applies only to those persons who know that such products are a danger to human health or safety. The prohibition has also been broadened to apply to manufacturers and importers.
Disclosure of Personal Information Without Consent
Under Bill C-6, the Minister of Health would have an unfettered right to disclose personal information without the consent of the individual if the disclosure is necessary to identify or address a serious danger to human health or safety. Formerly, this ability was subject to the making of regulations about the disclosure of personal information.
Review of Inspectors’ Orders
Several amendments were made to the provisions dealing with the right of review of an Inspector’s order. The right has been broadened such that an individual may now request a review of an order based on a question of either fact alone or mixed law and fact. Further, the new Bill introduces a series of standards for responses. Specifically, if a request for review of an order has been refused, the individual must be notified of the decision “without delay.” Moreover, a review must be completed within “a reasonable time” and an individual must be notified of the results of such review “without delay.”
Certain offences carried a fine of up to $5,000,000 and a two-year prison term upon conviction on indictment under the former Bill. Such offences included: offences relating to the prohibition on selling and advertising of unsafe consumer products; misleading claims in advertising and in sales; and the provision of false or misleading information to the Minister or to (or obstructing the conduct of) an inspector. These offences have been included in the second category of wilful and reckless offences under the new Bill. Contravention of these provisions or of any other provisions of the Act done knowingly or recklessly is subject to a fine in the court’s discretion, or a term of imprisonment up to five years upon conviction on indictment.
Bill C-6 provides that the Minster may review a penalty order. It introduces two separate review procedures – one to deal with the acts or omissions that constitute the alleged violation and one to deal with the amount of the penalty. The review by the Minster may only consider written evidence and submissions.
Additional categories of products are excluded from the application of the Act, including feeds, fertilizers and animals.