With the implementation of the CCPSA in June of this year there are specific obligations that those in the distribution chain of Consumer Products must meet.
The most important of all obligations, is that of ensuring that one does not sell an unsafe Consumer Product. Selling includes distribution with or without consideration (i.e. a giveaway of Consumer Products for free as part of a promo or when bundled with another product). The manufacturer should, prior to sale, ensure that it has completed testing to ensure that the sale of the product as labeled will be safe when used. Before distribution, on sale of a Consumer Product other than to the end user, you would want to gather information from those from whom the Consumer Product is purchased that provides evidence that supports that the sale of a Consumer Product as labeled is not unsafe.
In the USA, a manufacturer is often asked to provide a certificate confirming compliance with the applicable legislation governing Consumer Products, in effect asking for confirmation that the Consumer Product is safe to sell. As such, it would be prudent in Canada to follow a similar approach. Thought should also be given as to whether an indemnity should also be sought, at least by the importer who can be called upon by the Minister of Health to conduct studies and assemble data to support the safety of the Consumer Product. In addition, the importer should ensure that it obtains an undertaking from the manufacturer to provide that information which the Minister of Health could request from the importer, and to conduct those studies the Minister of Health may require the importer to carry out.
It is important to ensure that the labeling of the Consumer Product provides explicit information geared to the safe use of the Consumer Product, having regard not only to foreseeable use, but also to unforeseeable use. All marketing material, labeling and inserts should be checked carefully to ensure that they contain information that is consistent with instructions for the safe use of the Consumer Product.
As to specific steps that are required under the CCPSA, those in the distribution chain are required to:
- Maintain records of whom the Consumer Product was purchased from and in the case of other than a retailer, to whom it was sold. The retailer only needs to maintain a record of the date and where the product was sold. These records must be kept for 6 years from the end of the year when sold, and maintained in Canada; and,
- Report any incidents arising from the use of a Consumer Product. Incident reporting seems to be a significant concern to retailers, many of whom receive a substantial number of product returns. In light of the obligation contained in the CCPSA, retailers will be responsible to determine if the reason for the return could give rise to an obligation to report an incident, and if so report the incident. Each participant in the distribution chain with an obligation to report incidents will want to ensure that they have in place standard operating procedures that will allow for the effective determination if an incident has occurred, including: the gathering of the necessary information in order to report to Health Canada, having on hand experts that can assist in the evaluation of whether or not the Consumer Product caused the event, determining if the event was caused by the Consumer Product, and ensuring if an incident is determined to have occurred, ensuring that notice is delivered in the required timeframe. Importers and manufacturers will likely also want to ensure they will have access to the returned Consumer Product in the event testing of the implicated Consumer Product is required.
Products covered under the CCPSA are defined as “Consumer Products”. Consumer products are defined to mean all products, components, parts, accessories and packaging, reasonably expected to be obtained by a person for non-commercial use. There are a host of products that are exempted from the application of the CCPSA:
Pest Control Products
Prohibited devices under the Criminal Code
Plants subject to exemption
Seeds subject to exemption
While it would appear that cosmetics, as an example, are exempt from the application of the CCPSA, Health Canada has taken the position that what is actually exempt is the cosmetic itself but not the container. This would mean an obligation on those involved in the distribution chain to maintain records of the distribution of cosmetics, in order to keep track of the distribution of the containers to satisfy the requirements of the CCPSA.
In addition, if an incident arises from a container containing a food, drug, NHP or cosmetic, the part of Health Canada overseeing the CCPSA would require notification of the incident. In fact depending on the nature of the incident that part of Health Canada that overseas the product itself, i.e. the drug/NHP, may also require notice.
Be prepared. Ensure you have SOPs in place that govern record keeping and the receiving of customer complaints and routing them for review and if necessary, filing of an incident report. Ensure you have information from the supplier confirming the product is safe and in compliance with the CCPSA. Click here for more information on the CCPSA http://www.hc-sc.gc.ca/cpsspc/legislation/acts-lois/ccpsa-lcspc/index-eng.php