Consumer Product Safety Act (US) [“USCPSA”]

Canada Consumer Product Safety Act [“CCPSA”]

The application of the regime

Manufacturers, importers, distributors, private labellers (owns a brand or trademark), and retailers of consumer products.

Manufacturers importers, distributors, and retailers as well as advertisers and testers of consumer products.

Products excluded from the regime

Motor vehicles (and motor vehicle equipment), boats, aircraft (and aircraft engines, propellers and appliances), alcohol, tobacco, firearms, ammunition, food, drugs, cosmetics, pesticides, medical devices.

Motor vehicles (and motor vehicle equipment), boats, aeronautical products, tobacco (other than ignition propensity), firearms, ammunition, food, drugs, cosmetics, pesticides, medical devices, most agricultural products (including plants, seeds, seeds, fertilizers), and animals.

Power to ban certain products

Where it presents an unreasonable risk of injury; and no feasible safety standard under the Act would adequately protect the public from the associated risk.

Where there is a danger to human health or safety, the product is the subject of a recall order, or otherwise not in keeping with the Act. Certain Scheduled products are banned.

Setting Standards and Regulations

The CPSC can make consumer product safety standards regarding: performance requirements, requirements that a consumer product be marked with or accompanied by clear and adequate warnings or instructions, or requirements respecting the form of warnings or instructions.

The Governor in Council has broad regulatory power to make regulations regarding such things as: exempt products, banned products, record keeping, communication of warnings or safety information to the public, the timing of delivery of notices and documents under the Act, the recognition or designation of persons who are qualified to certify products, inspection functions, the taking of samples or the seizure, detention, forfeiture or disposal of things under the Act, and even generally “respecting” or “prohibiting” “the manufacturing, importation, packaging, storing, sale, advertising, labelling, testing, or transportation of a consumer product.”

Testing

Must certify, based on a test of each product or upon a reasonable testing program, that products subject to a rule or standard under the Act comply with those rules and standards.

Manufacturers or importers can be ordered to conduct tests or studies and compile information on products to verify compliance or prevent non-compliance with this Act or the regulations.

Reporting Requirements

Must report within 24 hours of knowledge if a product fails to meet a product safety rule, standard, or ban; contains a defect which could create a substantial hazard; or creates an unreasonable risk of serious injury or death.

Must report incidents of actual or possible serious adverse health effects in respect of a consumer product occurring anywhere in the world, a recall or measure instituted for health and safety reasons anywhere, or mislabelling that may result in serious adverse health effects within 2 days of knowledge, and deliver a more detailed report including proposed remedial measures within 10 days.

Recall Powers

Recalls are ordered by Courts against imminently hazardous consumer products (presenting imminent and unreasonable risk of death, serious illness, or severe personal injury) and they affect manufacturers, distributors, and retailers.

Recalls are ordered by the Minister, without a Court order, if the product is a danger to human health or safety and they effect manufacturers, importers, or retailers.

Powers To Govern Labelling & Advertising

No jurisdiction over misleading advertising and labelling.

Prohibits labelling, packaging, advertising, and selling products in a manner that may create an erroneous impression regarding human health or safety, or that is misleading regarding safety certification or safety standard or regulatory compliance.

Search & Seizure

Agents can enter and inspect any factory, warehouse, or establishment in which consumer products are manufactured, held, or distributed, or any conveyance being used to transport consumer products. Courts can order the seizure of products under the Recall powers.

Inspectors can enter any place without a warrant (except houses) and examine, inspect, test, seize, detain, take photographs and make recordings of records and products.

Record-Keeping

Manufacturers, private labellers, or distributors keep such records and make reports to demonstrate compliance with the Act.

Importers, retailers, or distributors identify the manufacturer of a product by name and address. Manufacturers must identify by name and address of each retailer or distributor to which the manufacturer directly supplied a given consumer product, each subcontractor involved in the production and from which the manufacturer obtained a component thereof.

Retailers to maintain documents that indicate the name and address of the person from whom they obtained the product and the location where and the period during which they sold the product.

Manufacturers, importers, advertisers, and testers must maintain documents that indicate the name and address of the person from whom they obtained the product, and to whom they sold it.

Confidential Information

Information obtained by the Commission that is related to or containing a “trade secret” is considered confidential and is not disclosed except to officers, employees, or representatives of the Commission concerned with carrying out the provisions of the Act.

Confidential business information may be disclosed, without consent or notice, to a person or government (including a foreign government) that carries out functions to protect human health or safety or the environment if the recipient agrees in writing to maintain the confidentiality of the information and to use it only for the purpose of carrying out those functions.

In situations involving a “serious and imminent danger to human health or safety or the environment” confidential business information may be disclosed to anyone without consent if the disclosure is essential to address the danger.

Penalties

Fines of up $100,000 for each offence not to exceed $15,000,000 in accumulated total (no accumulation if the violator had no actual knowledge) and imprisonment for up to 5 years for a knowing and wilful violation.

Any director, officer, or agent of a corporation who wilfully or knowingly performs any of the violating acts are personally subject to penalties, regardless of the penalties imposed on the corporation.

Fines of up to $5 million (or potentially higher at the discretion of the Court for knowing or reckless violations), or up to 2 years imprisonment (5 years for knowing or reckless violations), or both.

Directors, officers, agents, and mandataries can be prosecuted if they assented to, or acquiesced in, the commission of the offence.

Author

Robert L. Love 
RLove@blg.com
416.367.6132

Other Author

Michael C. Smith

Expertise

Insurance and Tort Liability
Product Liability