New Consumer Product Safety Legislation

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On June 20th, 2011, the Canada Consumer Product Safety Act (the "CCPSA") came into force, replacing the consumer product safety regime previously found in the Hazardous Products Act. The CCPSA places significant responsibilities on manufacturers, importers and retailers in order to help protect Canadians from hazardous consumer products.

What does the CCPSA do?

The CCPSA's primary purposes include prohibiting the manufacture, import, advertising or sale of hazardous consumer products, imposing record keeping and reporting requirements on manufacturers, importers, retailers, advertisers and product testers, and empowering Health Canada to investigate and recall hazardous consumer products. The record keeping and reporting requirements will permit Health Canada to track trends in consumer product safety issues and, more importantly, respond quickly to health and safety concerns caused by hazardous consumer products.

Who is in charge?

Health Canada is responsible for administering the CCPSA. Under the CCPSA, Health Canada has broad powers to investigate potential violations. They can also require manufacturers or importers to conduct tests on consumer products, and order product recalls where necessary to ensure public safety.

Health Canada is also responsible for receiving reports and collecting the records kept by manufacturers, importers, retailers and advertisers.

Who is governed by the CCPSA?

The CCPSA applies to anyone who manufactures, imports, sells, advertises or tests consumer products in Canada. It should be noted that "selling" a consumer product includes any distribution, including giveaways and donations. And manufacturing doesn't just mean creating new consumer products; it also includes repackaging, preparing or reconditioning consumer products for sale.

What does "consumer product" mean?

The CCPSA defines a "consumer product" as a product that would be obtained by an individual for non-commercial purposes (including domestic, recreational and sports purposes). The definition is not restricted to the finished product itself; it also includes components, parts, accessories and the product's packaging.

Consumer products which are already governed by separate legislation (including food, drugs, cosmetics and tobacco) are excluded from the definition of consumer product.

What are the record keeping requirements?

The CCPSA requires retailers to record the names and addresses of the persons from whom they obtained consumer products, as well as the period during which the products were sold. Manufacturers, importers and advertisers are required to record the names and addresses of persons from whom they purchased, and to whom they sold, consumer products. Additional record keeping obligations may be imposed by regulation.

Generally, these records must be kept for six years after the end of the year for which they relate. The records must be kept at the record keeper's place of business in Canada. According to Health Canada guidelines, the records may be stored in electronic form, so long as they are easily accessible from a computer at the place of business in Canada. Records must be produced upon written request from Health Canada.

What are the reporting requirements?

The CCPSA requires manufacturers, importers and retailers to notify Health Canada of any incident relating to a consumer product that they become aware of that could pose a risk to the health and safety of Canadian consumers. Incidents include occurrences resulting in death or serious adverse health effects, defects which may reasonably be expected to cause death or serious adverse health effects, incorrect or insufficient information or instructions which may reasonably be expected to cause death or serious adverse health effects, or a recall initiated by a foreign or domestic entity.

The CCPSA requires that an incident be reported to Health Canada, and the person from whom the product was received, within 2 days of becoming aware of it.

Manufacturers and importers must also submit a detailed report (including proposed measures to be taken) to Health Canada within 10 days of becoming aware of an incident.

It should be noted that Health Canada is offering free webinars to help industry participants learn about their record keeping and reporting requirements under the CCPSA.

What powers does Health Canada have?

Health Canada's inspectors can enter premises, including transportation vessels, where they believe consumer products are manufactured, imported, packaged, stored, advertised, sold, labeled, tested or transported. The inspectors can examine anything, take samples (free of charge), open packages, examine and copy documents, take photographs or sketches, detain transportation vessels, and demand the identity of the owner or of the person in charge.

What are the penalties for violating the CCPSA?

The penalties for violating the CCPSA vary depending on the nature of the violation and whether it is a first or subsequent offence, but can carry fines of up to $5,000,000 and up to two years imprisonment, or both. Further, misleading Health Canada, or knowingly or recklessly violating the CCPSA can result in a fine that is within the discretion of the court, and up to five years in prison, or both. If a violation continues for more than one day, each day the violation is committed counts as a separate offence.

What should businesses do?

Every business must assess whether it is governed by the CCPSA. If so, a compliance program should be established immediately. Consult your lawyer if you are uncertain about your obligations.

Trina Fraser is a partner with BrazeauSeller.LLP. Trina's practice focuses on business and commercial law, Internet and e-commerce law and trade-mark law. Trina is also a registered trade-mark agent. To contact Trina Fraser, call 613-237-4000 ext. 232 or e-mail tfraser@brazeauseller.com

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