Consumer products and public safety (2010)

CONSUMER PRODUCTS AND PUBLIC SAFETY
JASON MOSCOVICI*
ROBIC, LLP
LAWYERS, PATENT AND TRADE-MARKS AGENTS
Re-introduced as Bill C-6, the newly revised Canada Consumer Product Safety Act
will regulate a previously unregulated class of products. The Act will instate a
government managed surveillance system that imposes a duty to inform and a duty
to act upon to the key players involved in the manufacturing and sale of consumer
products.
In light of mounting product safety concerns and in continuing its objective of
protecting public health, the Parliament of Canada has decided once again to go the
regulatory route with regards to consumer products; the hope being that with a wider
net, they will catch more fish.
While the legislation itself has not been granted Royal assent due to last minute
amendments introduced at the Senate level, it is still important to understand what
may be coming down the pipeline for Consumer Product stakeholders.
Scope
The proposed legislation targets consumer products (defined as products, including
their "components, parts or accessories that can reasonably be expected to be
obtained by an individual to be used for non-commercial purposes, including for
domestic, recreational and sports purposes, and include their packaging") and is
aimed primarily at those who sell consumer-based products in Canada.
Who Will Be Affected
Consumer products being defined broadly, anything that can "reasonably be
expected to be obtained by an individual to be used for non-commercial purposes"
would be considered a consumer product. It is tricky to explicitly list all of those
products which can be affected by this new legislation, since the line between selling
a consumer product and a non-consumer product is becoming more and more
blurred; traditionally commercial products are starting to populate the homes of
consumers. Furthermore, since components are also the target of Bill C-6,
© CIPS, 2010.
*
With ROBIC, LLP a multidisciplinary firm of Lawyers, and Patent and Trade-mark Agents. Published
in the Winter 2009 Newsletter of the firm (Vol. 13, No. 4). Publication 068.117E.
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manufacturers whose parts find themselves in consumer products can also be
subject to this new legislation.
Also, through its broad definition of "sell" (monetary exchange is not a pre-requisite
as distribution can occur without consideration), the Bill targets anyone involved in
the product supply chain.
How Will They Be Affected
In summary, the Act:
• Prohibits the sale of certain products and enforces certain mandatory testing
and evaluation standards for others;
• Instates a reporting system making it obligatory for sellers of consumer
products to report any incident linked with the use of their product, including
defects and misuses;
• Establishes a system for the inspection and seizure of non-compliant
consumer products;
• Obliges sellers to report recalls and empowers the government to order
recalls;
• Empowers inspectors to enter a premises to order seizures, recalls and any
other activities deemed necessary;
• Creates penalties for both violations and offences under the Act. Directors,
officers and managers can be held directly liable for the actions of the legal
entity that they represent.
Conclusion
In short, it is still early to determine the impact that Bill C-6, if approved, will have on
the industry and the public. On one hand, this new revision maintains the imposition
of a strict documentation, reporting and auditing system. On the other hand, the Act
renders explicit various general principles that are already well recognized by certain
industry standard associations like the CSA and the ISO. As well, the recent
amendments seem to weaken the powers given to Inspectors and to the Minister
with respect to inspections and information sharing.
We will continue to monitor and report further developments regarding the recently
amended Canada Consumer Product Safety Act in future newsletters. For more
information on the current Bill, please do not hesitate to contact us.
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voué depuis 1892 à la protection et à la valorisation de la propriété intellectuelle dans
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marquage, publicité et étiquetage; poursuite, litige et arbitrage; vérification diligente
et audit. ROBIC, a group of lawyers and of patent and trademark agents dedicated
since 1892 to the protection and the valorization of all fields of intellectual property:
patents, industrial designs and utility patents; trademarks, certification marks and
indications of origin; copyright and entertainment law, artists and performers,
neighbouring rights; computer, software and integrated circuits; biotechnologies,
pharmaceuticals and plant breeders; trade secrets, know-how, competition and antitrust; licensing, franchising and technology transfers; e-commerce, distribution and
business law; marketing, publicity and labelling; prosecution litigation and arbitration;
due diligence.
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