Mandatory Recalls Now Possible

A new law came into effect yesterday: the Canada Consumer Product Safety Act, S.C. 2010, c. 21 (the “Act”).

While the definition of a consumer product is quite broad (according to s. 2 of the Act, it is “a product, including its components, parts or accessories, that may reasonably be expected to be obtained by an individual to be used for non-commercial purposes, including for domestic, recreational and sports purposes, and includes its packaging”), a number of goods are already excluded from this legislation under Schedule 1, products which are already covered by another piece of legislation. Such consumer products include food, cosmetics and firearms.

Schedule 2 also lists 15 consumer products that are cannot be manufactured, imported or sold, including such things as “kite strings made of a material that conducts electricity” and “lawn darts with elongated tips”. It is clear from a quick reading of this list to understand why it is these items have been prohibited. The government can add to this list.

This Act imposes a number of obligations on those who sell, manufacture or import consumer products, such as keeping documents with the name and address of the person from whom they obtained the product and reporting incidents occurring within and without Canada within two days of becoming aware of the event. Manufacturers and importers have ten days to provide information on the product involved in the incident and other similar products that could be involved in a similar incident. Incidents include incorrect labeling, recalls, defects and occurrences that can reasonably be expected to have an adverse effect on an individual’s health.

Inspectors administering and enforcing the Act have wide powers to ensure compliance: they can enter a place where they have reasonable grounds to believe consumer products are being manufactured, sold or imported and can take samples (free of charge), test objects, open packages, examine documents, etc. If the place they need to enter is a personal residence, they will have to obtain consent or a warrant.

One of the most interesting aspects of this legislation is Health Canada’s ability to order recalls and to remove unsafe products from the shelves. Prior to this Act, recalls could be requested but not enforced.

With important fines and imprisonment terms set out under this Act for those contravening the act, it will be interesting to see how often and to what extent this Act is enforced.

More information is available on Health Canada’s website.

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