Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Non-Resident Importers Into Canada Will Have New Compliance Obligations Soon

Non-resident importers of goods into Canada will have new document preparation and maintenance requirements as soon as the Canada Consumer Product Safety Act comes into effect. The Canada Consumer Product Safety Act received royal Assent in December 2010 and will come into effect on a date to be established by regulation.

Non-resident importers should get ready now so that implementation of the new requirements occurs on time. There are currently no exemptions for non-resident importers located in the United States or other free trade partners and no such exemptions are expected. Some of the requirements are yet to be established by regulation - but that means non-resident importers need to be watching the Canada Gazette closely or should hire someone to watch for them.

Section 13 of the Canada Consumer Product Safety Act provides:

1) Any person who manufacturers, imports, advertises, sells or tests consumer products for commercial purposes shall prepare and maintain:

(a) documents that indicate ... (ii) ... the name and address of the person from whom they obtained the product or to whom they sold it, or both, as applicable; and

(b) prescribed documents [that are yet to be determined].

(2 The person shall keep the documents until the expiry of six years after the end of the year to which they relate or for any other period that may be prescribed [that is yet o be prescribed].

(3) The person shall keep the documents at their place of business in Canada or at any other prescribed place and shall, on written request, provide the Minister with them.

How much time is needed to implement the new requirements will determine in large part on what documents will be prescribed.

The more important question that will need to be addressed sooner rather than later by non-resident importers is whether they must establish an office in Canada for record maintenance purposes. If the regulations do not set out an alternative to a Canadian office, then there will be a mandatory requirement that each non-resident importer establish a Canadian place of business.

This requirement is now dissimilar from a bill that did not pass in U.S. congress last year that would have required non-resident importers to have an agent for service in the United States so that product liability claims could be served easily by plaintiffs. The Canadian requirement has a better object and purpose in my view because it allows the Minister of Health to review the records quickly in the event of an incident involving the imported goods so that recall notices may be sent to and received by the right persons as soon as possible to prevent harm.

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168.

On November 25, 2010, I testified before the Standing Senate Committee on Social Affairs, Science and Technology and made a short 5 minute presentation of concerns about Bill C-36. For a copy of the complete Senate Session and the line-by-line vote, please go to the following link - http://www.parl.gc.ca/40/3/parlbus/commbus/senate/Com-e/soci-e/16evb-e.htm?Language=E&Parl=40&Ses=3&comm_id=47

I previously testified before the Standing Senate Committee on Social Affairs, Science and Technology concerning Bill C-6 (a previous version of Bill C-36) on November 25, 2009. For a copy of the complete Senate Session and the line-by-line vote, please go to the following link - http://www.parl.gc.ca/40/2/parlbus/commbus/senate/Com-e/soci-e/10mn-e.htm?Language=E&Parl=40&Ses=2&comm_id=47

Leave a Reply

remember my information