When enacted, section 14 of the Canada Consumer Product Safety Act (CCPSA) will require each supplier, regardless as to whether the supplier is the manufacturer, the importer, the distributor or the retailer of the consumer product in Canada, to report to the Minister of Health (and to the person, if any, who supplied the product to such supplier) all information in its control regarding any "incident" related to such consumer product within two days of such supplier becoming aware of the incident.

A reportable "incident" will include those situations which have resulted or could reasonably be expected to result in the death or a serious adverse effect on the health of an individual arising from the use of a consumer product, a defect in a consumer product, such as a design flaw, or an incorrect or deficient label or instructions for the safe use of the consumer product.

Accordingly, if you are a supplier of consumer products in Canada, you should be considering exactly who will perform the functions of the CCPSA compliance officer within your organization including being responsible for dealing with the question as to whether a reportable "incident" has, in fact, occurred and for undertaking any statutorily mandated reports to the Minister of Health.

Who the CCPSA compliance officer should be will depend on a number of variables including the nature of the consumer product, the size of the supplier, the sophistication of its employees, the reporting lines that exist within the supplier and the supplier's decision making structure. Uncertainty with respect to which employee is ultimately responsible for overseeing compliance with the CCPSA and its reporting requirements could not only delay the taking of needed corrective action, resulting in potential additional civil liability, but also expose the supplier, and its officers and directors, to possible prosecution under the CCPSA for the failure to properly report a consumer product related incident.

In addition to designating compliance officers, Canadian suppliers will also want to establish the proper policies, processes and procedures that will help ensure that all relevant information related to reportable incidents comes to the attention of the compliance officer in a timely manner so that CCPSA reporting obligations are complied with in a fashion that does not create unnecessary additional exposure to the supplier. While many suppliers may already have established policies, processes and procedures in place, even those suppliers will want to review all of those practices in the context of the additional obligations which will be imposed by this new legislation.

Some reportable incidents, such as a death or serious injury connected with a consumer product, may be fairly easy to identify. Others, such as "near miss" situations where no harm actually resulted, may be less obvious. For this reason, employees who are the most likely to receive consumer product complaints will need to be adequately trained to identify these potentially reportable situations so that such situations can be brought to the attention of the CCPSA compliance officer in a timely manner.

While the enactment of the CCPSA has encountered a number of delays, it seems a virtual certainty that this legislation will be enacted in substantially the form of Bill C-36. Given this fact, Canadian manufacturers, importers, distributors and retailers should be considering what policies, processes and procedures will need to be in place for the day that the CCPSA ultimately comes into force.

Caveat Venditor

The expression caveat emptor, let the buyer beware, is well known. However, with the proposed enactment of the Canada Consumer Product Safety Act, manufacturers, importers, distributors, advertisers and retailers will need to become familiar with the expression caveat venditor – let the seller beware. Fines for offences and administrative monetary penalties for violations of the Canada Consumer Product Safety Act could be significant.