Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Canadian Manufacturers (and U.S. Manufacturers/Exporters) May Have A New Mechanism to Stop Unsafe Imports Into Canada

The new Canada Consumer Product Safety Act, which received Royal Assent in December 2010 (also known as Bill C-36) may present an opportunity for Canadian manufacturers to stop or impede imports of unsafe goods. The Canada Consumer Product Safety Act is not yet effective - meaning that its effective date will be established by a future regulation. The mechanism has not yet been tested. 

That being said, Canadian manufacturers should consider whether they know facts that can present a perfect test case. International trade lawyers have experience in drafting anti-dumping and countervailing duty complaints, and memos on WTO and NAFTA issues that are intended to be turned into requests for consultation. International trade lawyers are used to gathering facts and evidence from foreign jurisdictions and testing imported goods for the purposes of customs duty tariff classification cases and determinations of whether goods are subject to an antidumping/countervailing duty order. International trade lawyers are used to classifying goods for the purposes of obtaining export permits.  International trade lawyers can help.

Section 31 of the Canada Consumer Product Safety Act permits the Minister of Health to issue a recall order against a person who imports or sells a product if the Minister believes "on reasonable grounds" that a consumer product is a danger to human health or safety. A domestic manufacturer (or other person) may put together evidence of the dangers and submit it to the Minister for action.

Section 32 of the Canada Consumer Product Safety Act gives the Minister of Health broad discretion to order an importer of goods to take certain actions (including to stop imports) if certain criteria are satisfied. A domestic manufacturer (or other person) can give the Minister what he/she needs to make the necessary order.

There are checks and balances in the Canada Consumer Product Safety Act that incorporate due process so that the provisions are not misused. However, the object and purposes of the Canada Consumer Product Safety Act is to protect Canadians from unsafe goods. As a result, if a Canadian manufacturer (or other person) is able to demonstrate that an imported good is dangerous (and provide evidence on which the Minister can rely in making a reasoned decision), the Act may present an opportunity.  Yes, the Canadian manufacturers may have to do the investigating and put together the evidence, but the Canadian manufacturer may benefit from those efforts.

This mechanism is not restricted to Canadian manufacturers and may also present opportunities to U.S. manufacturers of goods that export to Canada or would like to export to Canada. Anyone who will put together the necessary information may submit it to the Minister of Health for consideration.  If the information highlights dangers, the Minister may take action.

If you would like to discuss this further in light of specific circumstances, please contact Cyndee Todgham Cherniak at 416-307-4168 at McMillan LLP.

Leave a Reply

remember my information