In June the Canada Consumer Product Safety Act (CCPSA) came into effect. The legislation creates a new regulatory regime that applies to virtually all consumer products, whether or not they are manufactured in Canada or imported from outside of the country.
The CCPSA is a huge step forward in consumer safety in Canada. The legislation prohibits the manufacturing, importation, advertisement or sale of any consumer product that poses an “unreasonable danger” to human health and safety.
As unbelievable as it sounds, until now Canada did not have the power to order the recall of dangerous products. If a product was found to be dangerous, the government had to ask manufacturers and importers to issue a voluntary recall of the dangerous product. The CCPSA gives the Federal Minister of Health the authority to order mandatory recalls among other remedial powers.
The Canadian government has shown that it intends to take a broad approach to the remedial safety measures contained in the legislation.
Manufactures and importers will not be able to avoid recalls claiming that the risks or dangers associated with a product were uncertain. The preamble to the CCPSA provides that:
"…a lack of full scientific certainty is not to be used as a reason for postponing measures that prevent adverse effects on human health if those effects could be serious or irreversible."
What’s a “Consumer Product”?
The Act defines a consumer product as anything that may reasonably be expected to be obtained by an individual to be used for non-commercial purposes such as household, recreational or sports purposes. That could include, for example, anything from toasters or toys to table tennis.
What’s not a "Consumer Product"?
Certain food, health and cosmetic products continue to be regulated by industry specific legislation.
The legislation imposes an obligation on sellers to report "incidents" that have serious adverse effects on health. If an importer fails to comply with the legislation they will be subject to financial and criminal penalties.
When Must an "Incident" be Reported?
The CCPSA requires sellers to report any incidents involving consumer products to Health Canada.
"Incident" is defined as:
- An occurrence anywhere in the world (not just Canada);
- A defect or characteristic; or
- An incorrect, insufficient or missing label or instructions, any of which resulted (or may reasonably have resulted in) death, serious injury or a serious adverse effect on someone’s health.
In case it isn’t obvious, the Act says that any recall or any other safety measure instituted by a foreign entity or a provincial government for health or safety reasons is considered to be an incident.
Penalty for Non-Compliance
Fortunately the legislation carries a "big stick" to ensure compliance. The Act creates financial penalties as well as criminal liability for violations of the statute.
For example, contravention of the CCPSA can result in a fine of up to $5,000,000.00 or imprisonment for a term of up to two years or both.
Help for Injured Victims
The reporting obligations will not only help make Canadian consumers safer, they will also potentially help Canadians who have been injured by dangerous products recover compensation for their injuries.
Although the legislation does not impose an obligation to compensate injured persons, the reporting provisions in the legislation may help victims meet the burden of proof in personal injury claims. The legislation could create a “paper trail” that can be used in personal injury claims, product liability claims, class actions and other consumer safety litigation.
A Step Forward
I think the new legislation is a positive step. It finally gives some teeth to Canada’s consumer safety laws. Anything that makes consumer products safer is something we should all support.
Needless to say there are detractors. Persons who represent the manufacturing-importing industry in particular are concerned about the additional burden that reporting will cause. Of course, they raise to the specter of future litigation.
A Balancing Act
However, when you weigh the safety of Canadian citizens against potentially unfounded speculation about litigation that may or may not ever happen, Canadian consumer safety wins every time.