The Canada Consumer Product Safety Act (CCPSA)

The initiative

The Canada Consumer Product Safety Act (CCPSA) came into force on 20 June 2011, with the objective of protecting the public from the dangers to human health that could be posed by consumer products, including both domestic and imported goods.[2] Health Canada, the federal department responsible for administering the Act, aims to help Canadians maintain and improve their health, with the overall goal of making Canadians "the healthiest people in the world". For this, the organisation implements the following principles in its initiatives: reliance on scientific research; implementation of ongoing consultations with Canadians to determine how to best meet their long-term healthcare needs; and the communication of information about disease prevention to protect Canadians from avoidable risks.[3]

The mission of the Consumer Product Safety Program is to identify, assess, manage, and communicate to Canadians health or safety risks associated with consumer products and cosmetics. The Program's long-term objective is to reduce adverse health incidents related to consumer products and cosmetics in Canada. In its role of administering the CCPSA, Health Canada was given the authority to order product recalls, to levy penalties, and to establish the mandatory reporting of incidents for manufacturers, importers, and retailers of consumer products. Mandatory incident reporting by industry was instituted in 2011 for consumer products, but not for cosmetics.[4]

Later on, the federal government established a post-market programme to oversee the safety of consumer products and cosmetics. Therefore, there was no pretesting of product safety, or preapproval of products before they were available on store shelves. While the legislation prohibited industry from selling noncompliant products, companies were not required to demonstrate compliance with safety regulations before selling a product in Canada. “In a post-market regulatory environment, industry is responsible for ensuring that products are safe, the regulator is responsible for oversight of industry to ensure that regulations are respected, and consumers are expected to make informed choices and use products appropriately.”[5]

The challenge

The number and variety of consumer products and cosmetics available and consumed in Canada has been growing for many years, as it has throughout the world. Products with complex chemistries and new materials have been entering the Canadian marketplace, without providing consumers with full information about their characteristics and effects. While there could be clear benefits from their use, effective governmental oversight was also necessary to address or prevent any dangers to consumers.

Already in the early 2000s, there was evidence that exposure to chemical substances used in some cosmetics and other consumer products posed risks to human health. They could lead to reproductive, developmental, and cognitive disorders, depending on the level of exposure and the individual's stage of life. Endocrine disruptors were identified as particularly dangerous, posing dangers to human health and safety even at low doses.[1]

The public impact

The evidence indicates that there has been some progress made through the CCPSA initiative, but that Health Canada has failed to enforce the Act strongly enough, with the following results:

• The country made some progress in the identification and development of policies regarding chemicals in consumer products. “Since the [CCPSA] came into force in 2011, Health Canada had made progress in developing policies and procedures to guide risk management and compliance and enforcement activities. Its approach included tools to identify higher-risk consumer products and companies, such as those with poor compliance history.”[6]
• In 2013, the government used its powers under the Act to order the removal of novelty magnet sets from the marketplace. These sets contain small, powerful magnets that can be easily swallowed or inhaled by children - the first-ever mandatory recall of a consumer product, in this case from NeoMagnetic Gadgets Inc.
• On the other hand, Canada's auditor general found that, in most cases, Health Canada did not routinely confirm whether industry was complying with legislated requirements for reporting potential health and safety incidents and for submitting cosmetic notifications. Therefore, health and safety issues might go unnoticed for extended periods and "the Department cannot assure Canadians that it has acted promptly to address risks or that it has been effective in holding industry accountable for noncompliance".[7]
• The Exemption Regulations (Consumer Products) were implemented in 2015 to ensure that charitable organisations and retailers selling secondhand consumer products obtained by donation are exempt from certain CCPSA record-keeping requirements, except when the donation is from a business.[8]

Stakeholder engagement

There was an extensive consultation process with several stakeholders - including industry representatives, consumer groups, children's organisations, standards development organisations, other levels of government and the general public - before designing the CCPSA's provisions.[9] The CCPSA was implemented with a principle of inclusiveness to take into account the input from several stakeholders. "Because product safety is in everyone's best interest, everyone has a role to play. The CCPSA clearly defines industry's obligations, helps consumers to make informed choices about the products they purchase, and provides government with the tools to take action when necessary.”[10]

An overview of the law published by the National Law Journal in 2009, when it was still under discussion, advised that  the initiative was widely supported “The CCPSA is not yet law in Canada, but it is expected to pass through Parliament without significant revision because it carries the support of all political parties in Canada. This new law will significantly fortify Health Canada's stature and power as a regulator of consumer products, and likely will fundamentally overhaul the entire nature of consumer product regulation in Canada.”[11]

Political commitment

The Canadian government has been strongly committed to the CCPSA and its objective of controlling the use of chemicals in consumer products and other safeguards. In 2007, an initiative was launched to improve the oversight of cosmetic safety and, since 2008, funds have been allocated to take action regarding areas of improvement.[12] Bill C-52, An Act respecting the safety of consumer products, and its companion bill, Bill C-51, An Act to amend the Food and Drugs Act and to make consequential amendments to other Acts, were "key components of the federal government's Food and Consumer Safety Action Plan. On 10 January 2008, the Government of Canada issued a discussion paper outlining the key aspects of its plan and inviting Canadians to provide input."[13]

A press release published by the Government of Canada in 2010 reaffirming its support for the CCPSA stated: “Over the past year (2010), the Harper Government has demonstrated its ongoing commitment to consumer product safety through new regulations on lead, cribs and cradles, and surface coating materials. With the CCPSA, the Government will continue to provide a high level of protection for Canadians and will be able to do even more to address emerging consumer product safety issues.”[14]

Public confidence

There is very limited evidence on the public's opinion and support for this initiative, but neither is there evidence that it was rejected by the public. On the other hand, Health Canada integrated consumers' input in its implementation. It did this by asking for reports from consumers regarding incidents related to chemicals in consumer products or any injuries they suffered due to use of a toxic product. As a result, it received several incident reports in the period 2011- 15.[15]

Similarly, Parachute Canada, a not-for-profit organisation which promotes preventive measures for the safety of Canadian citizens, stated at the time: "We all have a role to play in making sure Canadians are protected from unsafe consumer products. Children are particularly vulnerable to product-related injuries because of their size, their developmental abilities and because they often use a product in ways outside of its intended use. We are proud that the CCPSA has strengthened consumer product safety in Canada."[16]

Clarity of objectives

The objectives were clearly defined by the federal government in the relevant legislation and remained constant throughout the implementation. However, a review of the policy by Canada's auditor general concluded that the initiatives taken by government were not properly designed to achieve the targets. For instance, the Act was not as thorough in the oversight of cosmetics, which are very much prone to toxic chemicals.

Health Canada launched the Consumer Product Safety programme as part of its implementation of the Act, with the mission of identifying, assessing, managing, and communicating to Canadians any health or safety risks associated with consumer products and cosmetics. Its long-term objective was to reduce adverse health incidents related to consumer products, with a strategic focus on prevention, detection, and rapid response:

• “Prevention: Promote compliance through industry and consumer outreach, and work with industry to develop safety standards
• “Detection (targeted oversight): Take a risk-based approach to the timely and accurate detection of consumer product and cosmetic hazards
• “Rapid response: Use the programme's full range of abilities and authorities, such as ordering product recalls, to effectively respond to risks in the marketplace and hold industry accountable for noncompliance.”[17]

Strength of evidence

The goals and provisions of the CCPSA were designed using the US Consumer Product Safety Improvement Act (CPSIA) as an example, but with certain adaptations relevant to the Canadian context and previous experience. "The CCPSA mirrors the goals and provisions of the CPSIA, but is different in a few key ways. For example, the Canadian definition of a consumer product is broader, saying an item is such a product if consumers are likely to obtain it. The US definition states a good is a consumer product if the manufacturer or seller intended or caused to make the product available for use by consumers.”[18]

Additionally, the CCPSA was the result of several years of consultations to address the many shortcomings of its predecessor, the Hazardous Products Act. These efforts included a range of critical measures such as: product recall powers; new reporting and record-keeping obligations for manufacturers, importers and retailers; an expansion of inspection and enforcement tools; and the ability to impose large penalties - which the previous initiative had not addressed properly.[19]

Feasibility

The programme was based on a number of previous legislative initiatives, such as the Canadian Environmental Protection Act, 1999 and Canada's Toxic Substances Management Policy. However, Health Canada's resources allocated to consumer efforts have been reduced over time, potentially jeopardising the initiative.

The 1999 Act states that new substances manufactured or imported into Canada above certain thresholds must undergo government-led health and environmental assessments. Building on this guideline, a Chemicals Management Plan (CMP) was launched in 2006 to bring existing programmes within a single strategy. It introduced more rigorous timelines for action on chemical substances, and set objectives to assess and develop risk management strategies for all categorised existing substances in the country. It aimed to examine approximately 4,300 chemical substances used commercially in Canada by 2020.[20] “While the CMP assesses chemical substances to determine what risk management measures may be warranted, the role of Health Canada's Consumer Product Safety programme is to ensure that risk management measures, including regulatory controls, are being respected and enforced in the Canadian marketplace."[21]

The resources allocated to the consumer products programme, however, have been reduced over time and were considered insufficient to address the challenges of the initiative effectively. In 2009-10, Health Canada spent a total of CAD3.75 billion on its programmes, but the amount spent on consumer products was only CAD27.3 million. “Of Health Canada's 11 programme activities, only two (Canadian Assisted Human Reproduction and International Health Affairs) had a budget smaller than that of Consumer Products.”[22] This CAD27.3 million also had to be shared with the programme's two other sub-activities, Cosmetics and Radiation-Emitting Devices. Apart from being one of the lowest-funded federal activities, the consumer products programme has also had its resources reduced. While the overall budget for Health Canada has increased steadily since 2004, the budget for consumer products has decreased significantly since 2007-08 - dropping to its lowest historical level as a percentage of Health Canada's budget in 2010. As a result, the Consumer Products division also cut 10 percent of its staff in that year.[23]

Management

Health Canada is the federal department responsible for implementing consumer product protection. As an organisation, it has the authority to support the development of safety standards and guidelines, and to enforce legislation by conducting investigations, inspections, seizures and prosecutions: “Under section 14 of the [CCPSA], industry MUST report to Health Canada after they become aware of a health or safety incident involving its consumer product”.[24] The purpose of the Act is to reinforce industry's responsibility to ensure they are not supplying consumer products that could be a danger to human health or safety, and Health Canada's role is to work closely with them to communicate and supervise requirements.[25] Health Canada's specific responsibilities include:

• “Supporting the development of safety standards and guidelines
• "Enforcing legislation by conducting investigations, inspections, seizures and prosecutions
• "Testing and conducting research on consumer products
• "Providing importers, manufacturers and distributors with hazard and technical information
• "Publishing product advisories, warnings and recalls
• "Promoting safety and the responsible use of products.”[26]

A report by the Canadian auditor general found several problems in the performance of the organisation, which impacted the effectiveness and impact of the initiative:

• Although there was overall progress in improving Health Canada's oversight approach, there were information gaps that limited the Consumer Product Safety programme's ability to detect and assess risks to human health and safety posed by targeted chemicals in consumer products and cosmetics.
• "Health Canada was slow to respond to notifications of cosmetics containing substances prohibited by the Cosmetic Ingredient Hotlist." There was no service standard for responding to these notifications, but the organisation took an average of nine months from receiving a notification to confirming that cosmetics containing prohibited substances had been removed from, or prevented from entering, the Canadian market - which the auditor deemed a slow response by general standards.
• Monitoring was also considered inadequate: “Health Canada's follow-up on enforcement actions, such as requesting a product recall or sales stoppage, was frequently insufficient to confirm that cosmetics containing prohibited substances had actually been removed from, or prevented from entering, the Canadian market.”[27]
• During the period examined by the auditor general, it was found that Health Canada did not normally record its conclusions about the overall effectiveness of a recall. Without the appropriate record to confirm that recall had been successful, there was insufficient evidence to conclude that the noncompliant products had been removed from the market.[28]

Measurement

According to the auditor general's review, the mechanisms that Health Canada had in place to measure results were not effective in monitoring the outcomes of the Consumer Product Safety programme.  The auditor concluded that: “Health Canada did not routinely confirm whether industry was complying with two key legislated reporting requirements… As a consequence, the Department did not have the information needed to assure that industry was fulfilling its legislated reporting obligations, or that the programme had been effective in reducing the number of health and safety incidents.”[29] Some of the specific items identified in the review included:

• Health Canada generally conducted cyclical enforcement projects in accordance with its established schedules. However, it was identified that sample sizes within cyclical enforcement projects were very small and results were not intended to reflect overall market compliance, meaning that they could not be used to draw conclusions about overall industry compliance and trends, or programme effectiveness.
• The bio-monitoring programme intended to measure and track concentrations of chemicals of concern and help determine the effectiveness of regulatory and other actions in reducing exposure over time was not operating effectively - Health Canada determined that it was too early to measure trends for most of the chemicals of concern. Therefore, the Department could not yet use the data to assess and report on the effectiveness of the programme.
• An internal evaluation in 2013 also found there was not enough data to reach a definitive conclusion about whether the programme was achieving its expected outcomes, as many of the programme's performance indicators were activity-based, and some critical indicators were not being tracked.
• There was no consistent reporting against performance indicators in the period between Fiscal Years 2009-10 and 2014-15. This was reportedly due to a change in the overall programme structure and implementation of the CCPSA. In May 2015, Health Canada approved a new performance measurement strategy.
• According to the auditor general, in 48 percent of cases there was insufficient evidence on file to confirm that products containing prohibited substances had been removed from, or prevented from entering, the Canadian market. There were instances in which the Department did not completely verify whether a company had taken the agreed corrective actions, and others where companies were notified of their noncompliant status, but did not request or receive information on how to correct this noncompliance.[30]

Alignment

All the major stakeholders - the federal government, the industry and the public - were aligned in seeking the policy objective of ensuring that Canadians were protected from unsafe consumer products. Members of the industry voiced their support for the CCPSA as a tool to help government and industry work together to address risks and ensure safe, high-quality products for Canadian consumers.

The government actively communicated with industry to inform them of their obligations and requirements under the Act in order to ensure a smooth transition to the new standards. Information sessions were held across the country and Health Canada published a number of resources on its website - including a Quick Reference Guide - to help with industry awareness of new responsibilities, including mandatory reporting of consumer product-related incidents.[31]

The parliamentary secretary to the minister of health marked her approval of the initiative by saying that: "Canadians need to have confidence in the safety of the products they buy for their families. The CCPSA provides our government with the tools to protect Canadians when risks are identified. The actions taken under this bill have kept our families safe from dangerous products, and will continue to make a real difference for years to come." Similarly, the president of the Retail Council of Canada reaffirmed the industry's support by saying that: "The CCPSA has been an effective tool in helping government and industry work together to build upon our strong record and to continue to partner effectively to address risks and ensure safe, quality products for Canadian consumers."[32]

Bibliography

Bill C-52: An Act respecting the safety of consumer products, Jennifer Bird, 22 April 2008, Parliament of Canada

Canada Consumer Product Safety Act: S.C. 2010, c. 21, Canada Justice Laws Website

Canada gets serious about consumer-product safety, Peter Pliszka and Richard Butler, 25 May 2009, The National Law Journal

Consumer Product Safety in Canada: From Enacting to Acting, Hari Bapuji and Kevin Morris, 1 April 2011, Policy Options

Government of Canada Celebrates Consumer Product Safety Achievements, 19 June 2015, Newswire

Harper Government's Consumer Product Safety Act Receives Royal Assent, 15 December 2010, Government of Canada

Industry Guide on Mandatory Reporting under the Canada Consumer Product Safety Act - Section 14 "Duties in the Event of an Incident", Health Canada

National Reporting to CSD-18/19 Thematic Profile on Chemicals, United Nations

Report 3—Chemicals in Consumer Products and Cosmetics, Office of the Auditor General of Canada

Strengthening Canada's legal framework to reduce human health risks from toxic substances, November 2015, Canadian Environmental Law Association

The Canadian Consumer Product Safety Act (CCPSA) has become law, 17 June 2011, Your Brand Marketing