Every year in Canada, there are thousands of emergency room visits which are a direct result of children, under the age of 10, being injured by consumer products found in and around the home. In an effort to improve the safety of the products that Canadians purchase, Canada’s Health Minister announced on June 20, 2011, that a new Canada Consumer Product Safety Act (CPSA) is now “the law of the land”.
The purpose of the new Act is to protect the health and safety of Canadians, particularly children, by addressing or preventing dangers posed by consumer products. The Canada Consumer Product Safety Act places new obligations on industry, not with consumers, to ensure that they are not marketing potentially dangerous consumer products. The Act applies to you if you manufacture, import, sell (includes leasing or distributing product, even if no money is exchanged), advertise, test or package and label a consumer product in Canada.
The Canada Consumer Product Safety Act replaces 40-year old legislation with modern laws to protect Canadians from unsafe products, and give Government more powers in dealing with those unsafe products. The Government now has the authority to remove dangerous products from store shelves by issuing mandatory recalls, something that was difficult to do under the old system of legislation, the Hazardous Products Act. The CPSA introduces new record-keeping requirements, new mandatory incident reporting requirements, a new fine/penalty structure for violations, allows the Government to require testing to verify compliance and allows Government to require corrective actions.
What are some of the highlights of the new CPSA requirements?
A. Document Retention : The purpose of the new document retention requirements is to allow tracability of any consumer product being sold in Canada, which will in turn assist in reporting and recalls. Retailers now must maintain records of where a product was obtained (purchased) from and the period of time (dates) during which those products were resold to the general public. Manufacturers/Importers must maintain records of where a product was obtained (purchased) from or who the product was sold to, or both. Any required documentation under the CPSA must be retained for a period of six years.
B. Incident Reporting : Manufacturers/Importers must now report ‘incidents’ to the Government within a mandatory time period following the occurance of an ‘incident’. What is the ‘key’ to reporting, is what is considered to be a ‘reportable incident’. Inherent hazards need to be kept in mind when determining if an ‘incident’ is reportable. For example, kitchen knives are inherently sharp. An accidental cut obtained while using a kitchen knife is not a reportable incident. However, if a plastic toy had sharp seams due to a defect in the manufacturing process it could result in a cut to a child’s finger. Any “incidents” of cuts to children following play with that toy would be considered a reportable incident..
C. Penalties : Voluntary compliance with the CPSA is always the preferred response to any issues that arise in relation to a consumer product that requires action. Under the new CPSA Health Canada inspectors may visit places of business or even specific locations where documents are retained and request actions be taken within a specific time period. If that inspector then comes back at the end of the allotted time and no corrective actions were completed, that is when a notice of violation is issued (which may include an appropriate fine). Requested corrective actions taken by Health Canada inspector may include orders for products to be quarantined or seized, and to subsequently be kept on or off site. Actions such as these are at the Manufacturer’s/Importers expense. In very severe cases of non-compliance, Health Canada can resort to seeking criminal charges in the courts.
What are some of the frequently asked questions about the requirements of the new Act?
i. What about incidents that occur with products that are not intended to be used by children? An incident with a product that is not intended to be used by a child will likely not result regulatory action. For example a coffee table is not generally intended to be chewed on by a child. Incidents of children chewing on a table would not generally warrant regulatory action. However, if that particular table is repeatedly involved in incidents with children chewing on it, regulatory action may involve a review or testing of the coatings used on the table, not a review of the table itself. Similarily, a Christmas ornament, although not intended to be chewed on by children, may cause regulatory action if the ornament is shaped like a piece of candy or a toy, which is highly attractive to children.
ii. What kinds of ‘labeling’ issues might cause regulatory action? The new CPSA does not institute new labeling requirements in addition to other labeling requirements already in place in Canada (e.g. required labeling from the Consumer Chemicals and Containers Regulations 2001 or CCCR 2001). Regulatory action due to labeling concerns would be initiated for issues such as insufficient instructions for assembling a product, or false labeling claims such as identifying a product as ‘lead-free’ when the product does contain reportable levels of lead.
iii. When are ‘testing’ orders issued? Health Canada’s requirement to test in the new CPSA only applies when the Government feels that there is or might be an issue. An example would be for a person or company that is selling special glazed pottery. The Government may have a concern that the glaze used on the pottery could have lead in it and would require the person or company producing the pottery to have the glaze tested for lead content.
iv. What is ‘unforeseeable’ vs. ‘forseeable’ in assessing an incident? The very first time a manufacturer/importer receives a report about an incident, the incident itself may not flag an incident report because the ‘incident’ may be considered ‘unforeseeable’. If a manufacturer/importer were to start seeing a pattern of a specific incidence, the incident will then become ‘foreseeable’ and the incident will be reportable.
Lastly, it is important to remember that its not only industry that has a role in the new Canada CPSA, but also consumers. Consumers are reminded that they too have a role to play in consumer product safety. Products should always be used safely and according to the manufacturer’s instructions.
For more information: Please consult the Canada Consumer Product Safety Act website: www.health.gc.ca/ccpsa Follow Health Canada on Twitter for updates: www.twitter.com/healthcanada