Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 8 - Evidence - October 28, 2009
OTTAWA, Wednesday, October 28, 2009
The Standing Senate Committee on Social Affairs, Science and Technology met this day at 4 p.m. to examine Bill C- 6, An Act respecting the Safety of Consumer Products.
Senator Art Eggleton (Chair) in the chair.
[Translation]
The Chair: Welcome to the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
Today, we continue with our hearing on Bill C-6, An Act respecting the safety of consumer products.
We have representatives of four organizations before us. Option Consommateurs is represented by Geneviève Reed, Head of Research and Representation Services. She has also been on the government's Electronic Commerce Task Force. The Canadian Consumer Product Safety Coalition is represented by Warrington Ellacott, Vice-Chair, Canadian Appliance Manufacturers Association, Electro-Federation Canada. Mr. Ellacott has more than 20 years of experience in product development, business leadership and marketing for tier 1 durable goods and consumer electronic product companies. The Canadian Toy Association is represented by Peter Irwin, Director of the Canadian Toy Association Board. He is a chartered accountant and President of Irwin Toy. The Consumer Specialty Products Association is represented by Shannon Coombs, President.
Shannon Coombs, President, Canadian Consumer Specialty Products Association: Good afternoon, honourable senators. It is a pleasure to be here today to support Bill C-6, An Act respecting the safety of consumer products. My name is Shannon Coombs and I am President of the Canadian Consumer Specialty Products Association, CCSPA. I have proudly represented this industry for 10 years. Our accomplishments as a proactive and responsible industry will be clearly visible as I make our presentation.
CCSPA is a national trade association that represents 46 member companies across Canada. We are collectively a $20 billion industry directly employing 12,000 Canadians in 100 facilities. Our companies manufacture, process, package and distribute consumer, industrial and institutional speciality products such as soaps and detergents, domestic pest control products, aerosols, hard surface disinfectants, deodorizers and automotive chemicals.
I provided the clerk with copies of our one page document that has a picture of our products. I am sure many of you use these products every day.
Why are we here? The health and safety of Canadians is a priority for all CCSPA members and we support this legislation. Our member companies are leaders in the responsible use of chemicals for consumer and institutional products in Canada. We are committed to the appropriate and safe use of our products. Over the past year, we have announced various and exciting initiatives such as our recent ``William, Won't You Wash Your Hands?'' resource kit that is a targeted hand washing campaign for three- to five-year-olds. We partnered with the Canadian Institute of Child Health and the Public Health Agency of Canada to distribute 12,000 kits to childcare facilities across the country. Senators received this kit in May and were asked to donate them to a favourite daycare or facility of your choice.
We have also announced the voluntary lowering of phosphorus in automatic dishwasher detergent. We have a communication campaign initiative explaining the benefits of concentrated products such as bleach and fabric softener. I am sure many of you have the 2X or 3X products. In addition, last year we announced a voluntary ingredient communication initiative allowing companies to disclose all ingredients on product labels and our manufacturer's websites. The program starts January 1, 2010. It will include air care, automotive, cleaning, polishes and floor maintenance products.
Are CCSPA member ingredients and products regulated? Yes. Canadians can be confident that the products are safe as the products they purchase have had various levels of government review and oversight. That oversight depends on the product.
In Canada, all of the substances in products such as laundry liquid detergents, fabric softeners and dishwashing liquids have had either a new substance notification under CEPA or a review of the existing substances under the chemical management plan. If any of the types of products make claims such as ``kills 99.9 per cent of germs,'' then they are also regulated under the Food and Drugs Act. This includes such products as disinfectants.
In addition, the Consumer Chemicals and Containers Regulations, CCCR, under the Hazardous Products Act regulates the label on the product. The foundation of the regulation is science. It is a hazard classification, but provides for risk communication. The regulation has provided appropriate, precautionary labelling for the last 39 years. It was modernized in 2001 and continues to be an excellent vehicle and regulatory tool to communicate risk to Canadians.
Elements of CCCR extend to other consumer products such as cosmetics, food and pest control. These labelling regulations will reside under Bill C-6 if proclaimed. Given the diversity of the products types, we are subjected to various laws and their regulations such as the Canadian Environmental Protection Act, the Pest Control Products Act and the Food and Drugs Act.
We believe our experience is beneficial to this committee as we have been actively involved in the modernization of these other important pieces of legislation. When the bill was being debated before the House of Commons, we appeared before the committee to seek a provision for a ministerial advisory council. We were pleased when all the parties agreed to the addition of the minister's advisory council. Our experience at councils such as the one under the Pest Control Products Act, of which I am a member, is a valuable tool to exchange information and to provide constructive feedback to the minister and the department to help shape and inform current and future policies and regulations.
We provided a submission to the clerk with other minor amendments such as a consistent precautionary statement in the preamble that would be consistent with Canadian Environmental Protection Act and the Pest Control Products Act plus other housekeeping issues that need to be addressed. As I said at the start of my comments, we support Bill C- 6. The companies I represent operate in a regulated community. The additional oversight that this bill provides will only increase the credibility of the currently regulatory regime in Canada.
Canadians need to have every confidence in not only the products that my members make, but in all consumer products. The legislation builds on the current systems to enhance that confidence.
How is that so? For example, the current Hazardous Products Act does not permit Health Canada to order a mandatory recall. Our industry, in the past, has always worked cooperatively and proactively with Health Canada to address any issues pertaining to product safety. However, we clearly recognize that Health Canada must have the necessary authorities to resolve situations when a voluntary approach may not work. This will allow for consistency and a level playing field. I firmly believe that the companies concerned about consumer safety and their corporate reputations have no reason to fear this legislation. Our members do not.
In closing, it is our opinion that Bill C-6 is a modern piece of legislation that allows the government to take a strong and responsive approach to protecting Canadians. Thank you for the opportunity to appear today. I look forward to your questions.
The Chair: Thank you. I will go to the other end of table now to the Canadian Toy Association and Mr. Peter Irwin.
Peter Irwin, Director of the Canadian Toy Association Board, Canadian Toy Association: Thank you, honourable senators. As director of the Canadian Toy Association, CTA, I appreciate this opportunity to help advance our shared goal of improving toy safety by addressing Bill C-6.
The Canadian Toy Association's 100-plus members are manufacturers, importers and distributors of toys generating about $1.8 billion of annual retail sales in Canada. Although the Canadian toy industry is large, our core members are actually smaller Canadian businesses. CTA's members are vitally concerned about toy safety. In the wake of the highly publicized recalls two years ago, our members have worked hard to enhance toy safety.
For example, toy manufacturers have increased their investment during the evaluation of product designs and testing prototypes throughout the manufacturing process. This involves testing raw materials, pre-production samples and the finished products. Toy manufacturers have also increased their auditing for compliance among suppliers for safety procedures.
Apart from these private initiatives, CTA recognizes that the government can further advance our mutual goal to enhance toy safety. Accordingly, CTA supports the government's initiative to update Canada's consumer product safety law. However, I would like to emphasize that this legislation will be guiding the government and industry for many years to come.
We urge the committee to take its time while reviewing this bill to avoid any unintended consequences. There are significant provisions in this bill that will have a negative impact on Canadian businesses if we are not careful in its implementation. Unintended consequences remain a real concern.
There are three areas in which CTA thinks Bill C-6 could be improved. These are: Reporting of incidents; preservation of confidential business information; and increased alignment of international safety standards and procedures.
As to incident reporting obligations, we recognize that genuine safety issues must be reported to the government in a timely manner. However, the CTA believes that Bill C-6 should be amended to provide clear guidance in defining an incident and the duties related to reporting an incident. It is important to ensure the government is promptly notified of safety issues without causing the toy industry to flood the government with non-genuine safety reports from consumers around the world.
Bill C-6 requires companies not only to report occurrences that result in serious adverse effects on health, but also to speculate on potential outcomes and report occurrences that may be expected to result in serious adverse effects on health. Further, violation of the reporting obligation is punishable as a criminal offence.
Using criminal penalties in this manner is unduly draconian and may result in companies flooding Health Canada with reports of unconfirmed incidents. Indeed, we are concerned that over-reporting will occur to avoid the risk of severe monetary fines of up to $5 million.
Establishing reasonable reporting measures and policy procedures that are workable and manageable for all sizes of companies needs to be a priority. A preview of Health Canada's proposed guidance document on incident reporting for Bill C-6 has only reaffirmed our concerns on this matter.
A very large percentage of our CTA membership remains particularly vulnerable to the administrative burdens that incident reporting presents, as over 60 per cent of the companies belonging to the CTA have fewer than 15 employees. We urge Health Canada to take this into consideration while drafting its policy and guidance documents.
As to preserving confidential business information, Health Canada unquestionably must have the power to disclose information as necessary to protect consumers from danger. At the same time, publication of unsubstantiated consumer reports that have not been investigated properly may give rise to false alarms. This could corrode the credibility of Health Canada and create unnecessary anxiety or even panic among consumers. It could also seriously damage good companies that have spent years building their reputations.
We urge that Bill C-6 be amended to make clear the scope of commercial information the minister could disclose, and to require the government to notify a company if its confidential information is going to be released.
As to the alignment of international safety standards, the toy industry operates in a global marketplace. Aligning safety standards would enable closer cooperation and enforcement by Health Canada and its counterparts around the world, while facilitating trade and reducing cost to consumers. On the other hand, not aligning ourselves with international standards will prevent manufacturers from supplying the Canadian market due to economies of scale. This will result in job losses and an erosion of Canadian entrepreneurship.
As Canada attempts to update its product safety legislation, we believe this is the perfect opportunity to encourage the alignment of international safety standards and to seek a way for this objective to be incorporated into Bill C-6.
In summary, the CTA supports the principles in Bill C-6. However, we urge the committee to take its time while reviewing this bill to avoid any unintended consequences and to ensure this legislation and policy documents take into consideration all sizes of Canadian businesses.
On behalf of our members, I want to thank you, Mr. Chair and the other members the committee for the opportunity to speak here today.
Warrington Ellacott, Vice-Chair, Canadian Appliance Manufacturers Association, Electro-Federation Canada, Canadian Consumer Product Safety Coalition: I am vice-chair of the Canadian Appliance Manufacturers Association, representing the Canadian Consumer Product Safety Coalition. Assisting me today is Mr. Charles Samuels, general counsel of the Association of Home Appliance Manufacturers, who will assist me in answering any questions the members may have.
The coalition is comprised of 12 major national business associations, representing total annual sales in Canada of an estimated $600 billion. Coalition member companies include domestic manufacturers, importers, distributors, wholesalers and retailers of all sizes. Consumer safety is paramount to our members and we appreciate the opportunity to speak with you today.
We support modernizing legislation and the goal to protect Canadians from unsafe products. Since the original Bill C-352, the coalition has been consistent in recommending improvements to strengthen the act and avoid unintended consequences to Canadian business. Health Canada has been open in the consultation process, but unfortunately many concerns of the coalition remain.
We support that genuine safety issues must be reported to Health Canada in a timely manner. However, our members receive hundreds of thousands of reports from consumers each year, the vast majority of which do not raise genuine safety issues. It is important to ensure that Health Canada is promptly notified of real safety issues, not an unprecedented amount of unsubstantiated reports from Canada or elsewhere.
We do not believe Health Canada is properly taking into consideration the challenges and administrative burdens in section 14. Health Canada must prioritize establishing reasonable reporting measures and policy guidelines that are manageable for all sizes of companies. We estimate the economic burden to business will be in the millions of dollars if not managed appropriately.
We request that the committee review policy and guideline documents associated with Bill C-6. These instruments will be used to clarify key provisions related to obligations and reporting. The impact these procedures will have on Canadian business cannot be underestimated. We have to ensure we get them right. Ideally, we prefer the legislation include our amendments in order to avoid interpretive policy and guidelines.
It is not good law or policy to create unreasonable, even impossible requirements, and then look the other way when many businesses cannot meet them. This incentivizes flouting of the law and uneven compliance in enforcement. A far better approach to various reporting requirements should be that they are reasonable, useful and safety enhancing.
The requirement to notify government within two days of any allegations of reports of serious safety incidences anywhere in the world — regardless of whether they relate to a problem with the product — is impossible, not helpful to prioritize safety issues and will generate reams of meaningless data. It would be much more sensible to wait and receive reports based on evidence of a defect or substantial product hazard.
Health Canada unquestionably must have the power to disclose information necessary to protect Canadians. However, publication of consumer claims that have not been thoroughly investigated may give rise to false claims, erode the credibility of Health Canada, penalize Canadian companies, hinder information flow and create unnecessary consumer anxiety.
A clear indication as to the scope of reported and commercial information the minister could disclose, and a requirement for the government to notify a company and receive comments that its company specific or confidential information is going to be released before, not after, such disclosure should be a priority.
An example of an unintended consequence would be if a company's information required to be sent to the United States Consumer Product Safety Commission is disclosed by the minister, the CPSC would then be required by law to halt communication with Health Canada. This would be detrimental to both nations' goal of improving product safety.
Sections 20 and 30 allow inspectors broad authority to issue mandatory recalls, inspections, testing and stop sale or import orders without any attempt to notify and receive a response from the affected persons. We believe Health Canada should have the authority to act if no responsible person can be found or the hazard is imminent; but in many cases, there is sufficient time for prior notice and some type of response from the importer or other affected persons.
Therefore, we recommend sections 20 and 30 must reflect a reasonable basis that an imminent hazard to Canadians is evident, and that notice and opportunity for response to the affected persons should be given.
On behalf of the Canadian Consumer Product Safety Coalition and its members, I would like to thank you for the opportunity to speak with you today on a matter that is vitally important to all Canadians. We believe our amendments, appended to this testimony, are in support of the government's initiative to modernize and strengthen consumer product safety.
I thank you for your consideration, and would be pleased to answer any questions the committee members may have.
[Translation]
The Chair: We will now hear from Ms. Geneviève Reed from Option Consommateurs.
Geneviève Reed, Head of Research and Representation Services, Option Consommateurs: Mr. Chair, thank you for this opportunity to present our views on Bill C-6, An Act respecting the Safety of Consumer Products.
Option consommateurs was established in 1983. We are a non-profit association with a mission to promote and defend the interests of consumers and ensure respect of their interests. Our Head Office is in Montreal. We also have an office in Ottawa.
We have focused on product safety for a number of years. Every year, we publish a toy guide, Le Guide des jouets, a collaborative effort with the Quebec consumer magazine Protégez-Vous. We sit on the Consumer and Public Interest Committee of the Standards Council of Canada. And finally, we carry out research in the field, especially research on noise-making toys.
The injury rate is high in Canada. Injury is the leading cause of death among children under nineteen years of age. Since 1997, 46 per cent of all injuries have been caused by dangerous consumer products. Most importantly, consumer product-related injuries are the leading cause of death among children under the age of four.
The Canadian government has been working for over ten years to update its health legislation and Canadian consumers have come to expect a law which will guarantee product safety. Why? Because the world has changed a great deal since the Hazardous Products Act was passed forty years ago. Today, Canadians buy products, especially toys, from the four corners of the globe.
By bringing its consumer product safety legislative framework in line with 21st century realities, Canada is catching up to its major trading partners, in particular the United States and Europe. The bill gives the government the right tools to build Canadian consumer confidence, namely the right to order product recalls, to combat counterfeiting and to guarantee quality assurance on goods sold on the Canadian market.
Since 2007, the number of children's products affected by worldwide recalls has grown rapidly. You may recall the case of Mattel which had to pull about 21 million toys off store shelves around the world, or Aqua Dots which led to many children being hospitalized, especially in the United States and Australia.
Should Canada deprive itself of the tools to deal with similar future events? Canadians believe in the safety of the goods they buy here. However, under the Hazardous Products Act, only products included in Parts I and II of Schedule I and in Schedule II are prohibited, restricted or controlled. Once we get beyond these products, the minister must negotiate a voluntary recall of dangerous products already on store shelves on a case-by-case basis. Every time a new danger is uncovered, the minister has to draft a regulation and consult stakeholders before he may place that particular product within the regulatory framework.
This old-fashioned system makes it impossible for the government to respond quickly and pro-actively to protect Canadian consumers. Bill C-6 remedies this situation by making all parties from the manufacturer to the retailer responsible for the safety of products on the Canadian market. Under this legislation and building on better quality control of the parties that manufacture, import and sell consumer products, the Minister of Health will also be able to act quickly to withdraw dangerous products from the market.
In order to ensure that all involved respect the blanket safety obligation in the Act, oversight and audit procedures will have to be put into place. Specifically, we believe that more inspections can prevent incidents. The role and powers of inspectors have been carefully defined and balanced in a way that will promote consumer confidence. In order to ensure compliance with the law, inspectors would be able to go into a toy store and inspect products on the shelves. However, there is no question of their entering private property without a warrant. Inspectors would have the power, just as in food inspection, to seize products in order to determine their safety. They would return the products to the merchant once the process was complete. Moreover, the provision whereby an order can be challenged counterbalances the increased powers of inspectors.
The provisions on release of information are essential in that they allow the minister to react rapidly in case of a risk to Canadians. The requirement to inform authorities of dangerous products is an important part of improving market oversight and risk management. For example, the various participants in the European supply chain have been reporting to their national authorities since 2001. In doing so, they are able to show that they have taken the necessary corrective steps and to check whether other similar products are still on the market. We hope that the mere possibility of financial administrative penalties will help deter wrongful practices.
Finally, to the extent that the bill authorizes the minister to take whatever action is necessary for carrying out the purposes and provisions of the act, we believe that at least two specific measures merit early and rapid action. We trust that when this bill comes into force, the Minister will concentrate immediately on the details of the recall process with a view to ensuring that consumer interests are taken into account, especially those of the most vulnerable.
Moreover, very strict new rules on toy safety have been adopted throughout the world over the last several years. Canada can draw on the experience of other countries in developing a regulatory framework which recognizes both marketplace realities and is effective in protecting consumers.
We hope that the proposed act respecting the safety of consumer products will be adopted quickly because it contains many provisions aimed at improving the health and safety of Canadians, their children and their grandchildren.
I will be pleased to take your questions.
[English]
The Chair: Thank you for your presentations. I want to point out that we have other people in the audience who might be called upon to answer questions. They are Jerry Miller from the Canadian Toy Association, Technical Committee co-chair; from Option Consommateurs, Anu Bose, responsible for the Ottawa Office; and from the Canadian Consumer Product Safety Coalition, Mr. Chuck Samuels, general counsel. Welcome to the committee.
I also want to welcome three senators who are not normally members of the committee but are interested in the subject matter: Senator Day, the official critic for Bill C-6, Senator McCoy and Senator Mercer. Welcome to you all. If anyone else wants to get on the list, please get on early.
I will start by asking a question. All four of you have either indicated outright support for the bill, but two witnesses pointed out the possibility of unintended consequences, which you went into to some extent. That is something we are looking at very carefully.
Mr. Irwin, in your presentation, you specifically mentioned three areas, and one of them had to do with being in sync with international safety standards and procedures. We were told by Health Canada that this was in accordance with what is done in the United States and the European Union. Do you have any specifics to indicate that this is not in line with other countries that we trade with?
Mr. Irwin: Mr. Chair, we have been working with Health Canada, and there have been indications that certain regulations may depart from international standards. We do not have the final set of regulations, but we do know that, specifically with lead content in toys, Health Canada was looking at having it as 80 parts per million as opposed to 100 parts per million in the United States and European Union.
We think that could be a potential issue with respect to having an undue costly burden to Canadian companies, particularly when there is no reason to go from 100 parts per million to 80 parts per million specifically.
With respect to phthalates regulations, there was the possibility of increasing the age grade from under three years of age to under four years of age. As long as I have been in the toy industry and as long as products have been labelled, it has always been three and under, as far as toy safety standards are concerned. Health Canada was looking at perhaps increasing that age grading. I have not heard what the final outcome is, but those are concerns. We want to urge Health Canada to try to align themselves with international standards. Toys are sold everywhere; everyone is concerned about toy safety — Europe, the United States. It is a global issue.
The Chair: You also talked about reporting of incidents, and you indicated the need for clear guidance because you think that there will be a flood of these things because of the penalty provisions in the legislation. People will be overly cautious and flood Health Canada with a lot of incident reports. One consequence is that Health Canada gets overwhelmed with these things and really cannot spend enough time looking at the ones that are really serious versus looking at the volume of them. What does that do for your industry? Paint this picture more for us of how you do not think this will work, and there would be unintended consequences.
Mr. Irwin: From our industry standpoint, we are concerned about over-reporting. As I mentioned in my brief, 80 per cent of the members of the CTA have fewer than 15 employees. They do not have the staff and the wherewithal to be able to report every single incident. The cost to these businesses would increase for sure, and to report overburdened incidents does not do anyone any good. We want to report accurate incidents that have safety concerns. That needs to be addressed in the legislation.
Mr. Ellacott: The important point specifically with our recommendations is that we would want to see a reporting framework based on a substantial product hazard or a defect in the product. The definition as it stands today — a danger to human health or safety — can mean various incidents. For example, our members would feel that they would have to report any incident, whether substantiated or not. The important provision in the legislation is that it states ``within Canada or elsewhere.'' The example that an appliance manufacturer might use is that appliance manufacturers do a significant amount of education relative to cooking safety, but if there was a reported incident of someone burning their hand while in the process of cooking in England, for example, under the current definition as it stands today, that would be a reportable incident.
With respect to appliance products, there are various differences between products in the European Union and in Canada. That is not something that we would look at. However, if the incident were specific to failure of the product, then yes, absolutely, we would accept that as a reportable incident.
Ms. Coombs: Just to offer a contrary viewpoint, because our ingredients, our end products and the label are regulated, our industry comes at it from a very different perspective. We have incident reporting under the Pest Control Products Act and the Food and Drugs Act. We deal with various branches within Health Canada. It is a collaborative process in developing those regulations. They have always been able to meet the benefits to Canadians, the safety requirements and the cost to industry. That has been our experience to date and we consider it the cost of doing business in Canada, to provide safe products to consumers.
[Translation]
Ms. Reed: In fact, I have two comments to make. On the question of international standards, the changes mentioned by my colleague from the Toy Council are already being discussed within the context of the current Hazardous Products Act. So then, I do not see how the new legislation would alter the situation. There is a process in place and these amendments are possible under the existing Act. For one thing, Bill C-6 does not alter the process and for another, the regulations contained in Part I of the Canada Gazette clearly refer to 90 milligrams per kilogram of lead content. That would just need to be verified.
As far as reports go, several jurisdictions proceed in this manner. Ontario's Electrical Safety Authority adopts this approach. Ontario's regulations also provide for an integrated approach. A process was initiated in consultation with all stakeholders. I believe the Product Safety Bureau and Health Canada are open to this type of consultation when it comes to an incident report.
[English]
Senator Keon: It is interesting that you are a microcosm of all the emails and testimony we have been getting on this bill. Two of you feel the bill is good, timely and necessary, and does not need any amendment or adjustment, and two of you feel that there are problems with the bill and it needs either some amendment or perhaps some careful attention in the policy and guidance documents.
Concerning our responsibility, do you think we can cover the bases with some attention to the policy and guidance documents? Do you think it is necessary that we review these documents, or is it acceptable to you that we have discussions with Health Canada about the evolution of these documents?
Mr. Ellacott: Thank you for the question. I think the important thing is that Health Canada has advised industry and I believe Health Canada in their original testimony less week indicated that it would be framing policy guidelines to direct industry until the regulation is in place. From an industry perspective, yes, they are very important, as really they will be the guiding principles for us to conform to the act. We, as the Canadian Consumer Product Safety Coalition, have received a draft of those documents. We have not circulated those documents. Unfortunately, I am not in a position to discuss them here today. We are here to discuss the key aspects of Bill C-6, but I certainly recommend reviewing them, as companies will have to follow those guidelines as we proceed through the regulatory process.
Mr. Irwin: The CTA is concerned, and these documents and regulations need to be looked at because many of them provide obviously definitions of understanding between what an incident is, when to report it and the duties required. Obviously, regulations have to be looked at to ensure there is some, in our opinion, alignment with international standards.
Yes, we are very much interested that everyone looks at the regulations and the guidance.
Ms. Coombs: I cannot presume to tell the committee what to do. However, in my experience, we have always had a large amount of public consultation on any development of the regulations or guidelines prior to being posted in the Canada Gazette. That may be a determination the committee may want to make after they put a recommendation forward. Either way, it is within this committee's mandate to make that decision.
[Translation]
Ms. Reed: Let me just say again that this bill must be passed quickly. The legislative reform process has been under way for several years now and we have been consulted. The industry itself acknowledges that it has been consulted. We are consulted on policies and procedures and we will continue to take part in the consultative process.
[English]
Senator Segal: Ms. Coombs, you endorse the application of the precautionary principle. If we had had the application of the precautionary principle in the way anticipated by this bill over the last 75 years, a series of things would never have been approved. Aspirin would never have been approved. Certainly, the combustion engine would not have had a chance. There is no way Health Canada would have approved air travel, in any way, shape or form. The same is true for the mercury thermometer and the bicycle. Forget hockey; there is not a chance Health Canada would have approved hockey.
Why do you think the precautionary principle is something that can be applied in a rational way to industry and manufacturing? The notion that harm could happen is like wrapping all our kids in bubble wrap and hoping we can evade all risk. I found your comments remarkably moderate in that respect as an industry representative. I wanted to give you a chance to reconsider.
Mr. Irwin, assume I am a company and dealing with the Crown in some way. Someone asks a question about the information I have given either to Statistics Canada or Health Canada. In the normal course of things, that information cannot be made public without my permission if it is deemed to be of a competitive, proprietary nature.
Are you comfortable with that principle being set aside? You seem to be comfortable with it being partially set aside. I would like for you to give us some clarity.
Based on Mr. Ellacott's testimony, Mr. Chair, I hope that you seek from Health Canada full sets of those policy guidelines and working papers that they have been consulting on with industry, to their credit, to allow members of the committee to look at them.
I believe in fair-minded regulation. I do not believe in secret regulation. I do not believe in giving even the best, most publicly interested, committed, decent, hard-working and honest public servants the secret right to issue documentary direction without us knowing about it and without it being in the public domain. I hope we could look at those documents before such time, as we have to pass judgment on this piece of legislation.
Ms. Coombs: Thank you for the opportunity to reconsider. No, I have not changed my mind.
With respect to the precautionary principle, we have asked that an amendment be made to include the term ``cost effective'' so that the bill is consistent with the Pest Control Products Act and the Canadian Environmental Protection Act, 1999. In my experience to date, I have always found Health Canada and Environment Canada, in respect to CEPA, 1999, have always been able to find a balance between protecting the safety of Canadians and ensuring that industry has the ability to provide innovate and new technology.
Mr. Irwin: In principle, I am obviously interested in confidential information not being disclosed. I am partially on the fence from a safety aspect point of view. When it is deemed that a toy is unsafe and harmful, I want to ensure that the information is reviewed and the information disclosed is credible, accurate and does not involve any confidential information with respect to how the toy was developed, a secret formula or any proprietary information that has nothing to do with the safety of the product. That is the concern we have as an industry. The information disclosed is to be specifically related to the toy itself in terms of its safety.
Mr. Ellacott: As far as I can determine, there is no specific reference to the Access to Information Act and how it relates to Bill C-6 and the law. That is obviously an area of concern.
Mr. Irwin alluded to consultation and the reviewing of released information. For example, in our industry, we have products in the marketplace over various years. We would want to ensure that the messaging to Canadians is very specific around a specific serial number range or dates of production like you would see in the auto industry. We hope companies would have the opportunity to review that before the release of information.
Senator Segal: Mr. Ellacott, as I understand the regulatory process, the regulations would have to come before the House of Commons and Senate Standing Joint Committee for the Scrutiny of Regulations for discussion. That is another forum during which one with look for the right sense of balance, fairness, acuity and effectiveness.
Following on Senator Keon's question, these policy guidelines, documents and working papers that are to fill the gap between the proclamation of the bill and the coming into effect of the regulations, for all we know, could be the basis of prosecution. Those could be the basis of search and seize. Members on this committee would be operating in the dark because we would not know what we are putting into effect. We would not know what those working papers provide in terms of implementation between the coming into effect and the regulatory approval through the normative process.
If I am overstating it, by all means, please correct me.
Mr. Ellacott: We are engaged with Health Canada to review the policy and guidelines documents. The purpose of that is to enact the legislation. The Canadian Consumer Product Safety Coalition was supportive of the bill and wants it to be in place. On the other hand, we need clear guidance on incidence reporting. These parameters of the legislation need to be clarified.
For example, Ms. Reed referenced the Electrical Safety Authority and incidence reporting within the Electrical Safety Authority framework. That framework is much clearer to manufacturers. We have a seriousness threshold that we can relate to so all parties clearly understand their obligations with respect to an incident. Presently, those policy and guidelines set that framework. We will need them as we progress through regulation as you described it.
Senator Ogilvie: In our documents, we have a brief that contains recommendations. Ms. Coombs you referred to one of them specifically. You mentioned the issue of wanting to insert the term ``cost effective.'' Is it appropriate to ask you a question on this document?
Ms. Coombs: Absolutely.
Senator Ogilvie: Before I start, I would like to deal with the issue of the precautionary principle and Senator Segal's intervention.
It is an interesting example of the appropriate use of the precautionary principle because, in fact, Aspirin is widely available as an example. It does have the cautionary restriction that a subset of the population could suffer a severe reaction from it, but the overall benefit to society allows it to be provided with those cautions. It is a particularly good example.
If Health Canada applied the principle absolutely, probably random parenting would not be allowed either. These are issues that we have to keep in an appropriate perspective.
I found it important that most of you were arguing for a clear and effective piece of legislation. However, I am concerned with one of Ms. Coombs recommendations. I am referring to the addition of the words ``cost effective'' into the clause where it deals with the reasons for postponing measures. I submit that inserting a qualifier of that nature would lead to almost unlimited challenges to the meaning of ``cost effective'' is because would be different in almost every circumstance. As I see the wording, the issue is very clear in terms of the intent.
Ms. Coombs: We put the recommendation forward because we wanted the precautionary principle to be consistent with the Pest Control Products Act, the Canadian Environmental Protection Act, 1999, and the Hazardous Products Act.
I believe there has been a summary put forward to you of the consistencies in Bill C-6 with other pieces of legislation, so it seemed like a positive fit. It is something that would be consistent with other pieces of modern legislation that have been revised in the last five years.
Senator Ogilvie: My second question is with regard to your second recommendation, where you would like to have tests removed from the requirement with regard to maintaining documents and so on.
I am curious about that one because, normally, if items are subjected to required testing or testing that is important to lead to a conclusion, the test is invalid unless you know where the product came from — who you got it from, what tests were done and the maintenance of those test records.
Ms. Coombs: It is the last part, about who has the onus to keep the records. We have had some discussions with Health Canada because some of our companies would contract out third parties to conduct the tests — laboratories to do good manufacturing or laboratory practices. It was trying to seek clarity. It is not that we do not want to have the test; we want to know who has the onus for keeping it so we could refer them to the third party who does. We suggested to the department that they do so via regulation and not have it written into the legislation.
Senator Ogilvie: I understand your point, and there may be a way of dealing with it the way you suggested. However, I come at this from a scientific point of view, where if I require a laboratory test on something that I am working on, it has no meaning to me unless I maintain the complete record that the testing organization did and that they maintain it for double-checking.
That is the issue. It surprises me because it would be a normal requirement for the validity of a testing procedure. That is a concern for me.
Ms. Coombs: I appreciate your comment on that. I had not looked at it from that perspective.
Senator Ogilvie: The final thing I wanted to come to is the issue that Mr. Irwin raised, which was supported by his colleague. This deals with the issue of incidents and the idea of the requirement to report a single incident.
It is my experience that a single incident, once observed, may be a tremendously important piece of information. It is also my experience that it is the ignoring of single incidents that has often led to problems with consumer products in a larger area.
That ties into the issue of the number of employees. In many areas, a small number of employees are dealing with a given product in a given area, and they are often closest to the application or use of the product, or recognizing the consequences of using a product. I have real difficulty with the idea, first, of not recognizing a single incident that is of some significance; and, second, that somehow the number of employees determines whether an incident should or should not be recognized. I am having difficulty with that.
Mr. Irwin: First, it is not necessarily the number of employees. Just because an incident happens does not necessarily mean that it is ignored. It is certainly looked at and evaluated. It is a question of whether that incident needs to be reported.
Once a company or an employee has investigated the incident and realized that perhaps this is something that happened because of another incident, and it is not a relevant incident, then it should not be reported. That is the essence.
We want to ensure that the companies and the individuals involved, who are closer to the product, cull each incident and review it and make sure this is a reportable incident and it is necessary to be reported.
Senator Ogilvie: It seems to me the answer you gave is the perfect reason why we must be concerned about even a single incident. It is a question of whose judgment it is that the incident is important. During my lifetime, we have seen examples where those judgments are in the favour of the company as opposed to the consumer.
Senator Eaton: I thought, according to Health Canada's briefing to us, that incident reporting and the way it is done and what it involves would all be discussed with you during the regulatory phase of the bill. Is that not correct?
Mr. Ellacott: I believe that was the intent of the policy guidelines, to give industry guidance. For example, a hockey puck strikes a player on the ice; is that a reportable incident? We are not sure if the incident happened in Canada or elsewhere.
Senator Eaton: That is an extreme example that nobody in their right mind —
Mr. Ellacott: A real life example — sorry, I did not want to interrupt.
Senator Eaton: That is not a real life example.
Mr. Ellacott: There was an actual incident where shoes were returned to a major retailer with the comment ``they are killing me.'' Is that a reportable incident?
Senator Eaton: I thought those things — those are obviously very important issues, because you have given me those two incidents — are things to be discussed with Health Canada, once the bill has gone through, in a set of regulations. Obviously, someone coming in with a pair of boots, saying ``my feet hurt'' would not be subject to an incident report.
Mr. Ellacott: The current opinion now, relative to the way the law is written, is that the companies would be in a position to report that incident. That is the importance of the policy guidelines in the interim. As you suggest, it would be when we get to the regulation phase. They potentially could be product sector-specific in those recommendations, absolutely.
Senator Eaton: That is what we heard in our briefing.
Ms. Coombs: It has been my experience that Health Canadian is diligent with respect to consultations. I argue that they will produce the proposals for regulation in a discussion document and in policy guidelines and in regulations. I do not expect there will be any lack of work in the next 12 months.
[Translation]
Senator Pépin: Can you give us some examples of imported toy products with counterfeit labels? In your opinion, will clause 9 of the bill resolve the problem of counterfeit labels?
[English]
Mr. Ellacott: That is a very important question. Many members of the Canadian Consumer Product Safety Coalition are members of the Canadian Anti-Counterfeiting Network. This industry coalition works with other federal and provincial departments and provincial agencies to address counterfeiting. I can circulate to the clerk the recent welcoming of a report from an industry committee with respect to counterfeiting. Certainly all members of the council take this matter very seriously.
[Translation]
Senator Pépin: So then, you fully endorse clause 9 of the bill?
[English]
Mr. Ellacott: With respect to counterfeiting, absolutely. Counterfeiting is in no one's best interest. The member companies of the coalition, as witnessed by their participation in the CACN, are absolutely on board with that.
Senator Martin: I echo Senator Keon's comments that it has been interesting listening to both sides of the debate on this bill. Thank you so much for your presentations today. I am happy to hear that you felt that you had a role in the consultation process, and that it will continue as the regulatory framework develops.
My question is in regards to the tools that are available to government, the officials, for the recall process. From a consumer standpoint, I am sure Canadians want to know that the government officials who are handling a situation have the tools necessary to do the kind of effective recall of products that are dangerous to Canadian consumers. Have you been involved in any cases of recall? We have witnessed some that have been very public. In terms of the process as it is now, how effective do you feel that is, and will the recall provisions in Bill C-6 improve that system? It would be a very important assurance to consumers that we have the tools necessary and that we want to strengthen the system.
Ms. Coombs: With respect to recalls, our member companies work on a voluntary basis with the department to ensure the removal of that unsafe product. I envision that we will have a discussion with the department about formalizing the procedures currently in place into regulation. One of the most important things is that it will give increased confidence in the regulatory system to Canadians. When you hear of a product recall, it is via either the U.S. or elsewhere. It is not that Health Canada has taken the action. I think it will help Canadians feel confident that the government has the stringent regulatory process.
One of the great things they have is have an email system. This system lets the consumer enter his or her email address and receive notification of product recalls. The consumer does not have to hunt for that information; it is delivered via the internet to the consumer. Once they are able to brand that as a Health Canada initiative and effort, it will go a long way toward instilling confidence in Canadians.
Mr. Ellacott: It is a collaborative process between the industry and Health Canada. It is to the best interests of both parties that recalls are executed efficiently and in a timely manner. It has always been a collaborative process and will continue to be so under Bill C-6.
Senator Martin: Do you believe the provisions in Bill C-6 will strengthen or improve the recall process?
Mr. Ellacott: Yes. Ultimately, with the concern about the confidentiality of the business information, the two parties will be working closely toward a corrective action. We hope that the two parties will treat the information as such and be able to go to the marketplace at the appropriate time with the appropriate corrective action and infrastructure systems in place to support the recall.
Senator Cordy: I think all of us know that the intent of the bill is for the safety and protection of Canadians from harmful products. Each of us around the table, regardless of political party, certainly has the same hopes that this bill will accomplish that intent.
We have often seen that a bill has ramifications that are not necessarily intended. Therefore, I wonder if this bill has a little bit of governmental overreach, if I could use the term. I would like to go back to the precautionary principle and the definition of an ``incident.'' I am a practical person, and when I look at the fact that coffee companies have to put a warning on their coffee cups that the contents could be hot, or when you buy a ladder and there is a sticker saying that climbing ladders can be dangerous, you wonder if common sense has gone out the window. Should we have a clear definition of ``incident'' within this piece of legislation?
Mr. Ellacott: As you can see, within our amendments, we propose that the incident specifically relate to a substantial product hazard or a defect or unreasonable dangerous product. For example, in the hockey puck example, if the puck had disassembled or come apart, that would be a clear defect in the product and would warrant an incident report.
No one should be reporting on items that have an inherent danger. A knife, for example, has an inherent danger. We must ensure that the reporting mechanism for firms is truly focused, as the senator pointed out, on real safety issues. If the companies are allowed to focus on the real safety issues, we can get with proactive measures faster.
Senator Cordy: I am also quite concerned, and I brought it up last week with the Department of Health, about the disclosure of confidential information. I am concerned that it goes to foreign countries and that the minister has sole discretion as to who gets the information and the nature of the information. I am concerned that not only do you not need the consent of the person, but also the person is neither notified nor informed.
Should that change be made within the legislation regarding the disclosure of the confidential information? If you say they can disclose it, should the person or business about whom the information is being disclosed, at least, be notified before this information is disclosed? I think Mr. Irwin mentioned it in his brief.
Mr. Ellacott: Mr. Chuck Samuels is the expert in this area if he may approach the microphone.
Charles Samuels, General Counsel, Association of Home Appliance Manufacturers: Honourable senators, thank you for allowing me to comment. I am a lawyer in Washington, D.C. I work with parallel groups in the United States. I have been involved in many recalls in both the United States and Canada.
In response to a comment by one of members of the committee earlier, I believe Health Canada is extremely competent and has a high level of professionalism. It has taken the lead in a number of recalls.
That does not mean we agree with all aspects of this legislation. In particular, with respect to recalls, there is no question that your law needs to be modernized and you do that modernization in this legislation. However, there is no explicit provision that before an inspector issues a recall order that there be any notice or comment with affected parties, which except in imminent hazard situations, this should be done as a basic matter of due process. That is quite troubling. Hopefully, it will be changed in the legislation. If it does not, I hope it will be clarified in the guidance or regulations.
It is also very important that information provided by regulated parties to the government should be held confidential before any disclosure. Improper disclosure can be very harmful to the product or company. It can confuse consumers and it also plays into the hands, as one question suggested, of our international competitors. We have a North American economy, but we know it is really a global economy. Such information in the wrong hands can result in duplicate products virtually overnight in competition with those developed by North American companies.
Does that answer the member's question? Is further clarification needed?
Senator Cordy: You are saying that disclosure should be confidential.
Mr. Samuels: In cases of imminent hazard or if the company is not cooperating, Canada must protect its citizens. There is no question in those instances. Otherwise, there at least needs to be an attempt at dialogue and consideration whether there is any validity to the information, if the company has something to say and other relevant factors before disclosure.
The Chair: I have a supplementary question on that. Clause 16 of the bill has a provision related to disclosure of confidential business information to a person or a government. It requires that:
. . . the person to whom or government to which the information may be disclosed agrees in writing to maintain the confidentiality of the information and use it only for purposes of carrying out those functions.
Clause 17, however, deals with the case of serious and imminent danger and the possibility that information will be disclosed without that written agreement.
Mr. Irwin said earlier that he is okay with providing the information that they need to deal with the defect, but he is concerned about the proprietary information and intellectual property. Sometimes that may overlap. The problem may be part of the proprietary information.
Where would you like to see an amendment in these sections?
Mr. Samuels: Before any disclosure, the affected party must receive notification. That could be the retailer, importer or manufacturer. They must have some opportunity to comment on the proposed disclosure before it goes into foreign or other hands.
You are correct that there are some circumstances where it is important that proprietary information be disclosed because of a hazard to health and human safety. In the vast majority of cases, that is unnecessary. We need to ensure the disclosures are proper and the government is fully informed of the circumstances. That will not happen if the affected person finds out about this only after disclosure has been made.
Ms. Coombs: From the regulated industry perspective, we deal with confidential business information submitted to Environment Canada and Health Canada. To date, our experience is that the information has always been treated respectfully and ethically. The balance is in protecting public safety and confidential business information. We do not expect anything different in the future.
There have always been provisions, specifically under the Pest Control Products Act, where industry is given the opportunity to comment. I do not see that changing under this act. That is a provision that Health Canada would put in place.
The Chair: You may be right. There is always the question of good intentions versus what the law says.
Ms. Coombs: I appreciate that.
The Chair: Some of those lovely people at Health Canada one day may not be there. Therefore, we have to look at the law too.
Senator Dyck: Clause 20 of the bill gives inspectors sweeping powers to enter a place and seize, detain or test products, et cetera. When we asked Health Canada about this particular provision, they thought such extensive powers were necessary to protect the safety of Canadians.
Do the witnesses think the search and seizure powers are relevant to the particular products that you deal with, or are the products you deal with hazardous enough that these types of search and seizure are necessary?
Mr. Irwin: In the 30-plus years I have been involved in this industry, we have always worked cooperatively with Health Canada in a recall. I think this provision is a little overreaching. Everyone is concerned about safety. If there is a safety issue with any particular product, we naturally want to take the best interest of the consumer into consideration and voluntarily recall the product. That is my opinion.
[Translation]
Ms. Reed: Product safety ensures consumer confidence. For instance, with respect to food products, inspectors have the authority to take samples of food from an establishment to check for compliance with the legislation. Inspectors are authorized by law to enter these premises, although obviously, they cannot enter private property without a warrant.
In order for legislation to have some bite and to be meaningful, it must provide for oversight powers. We stand firm on that score.
[English]
Mr. Ellacott: With respect to our amendments, you can see that we are requesting some reasonable grounds that a seizure should take place. As well, time limits with respect to the seizure should be considered. There also should be some kind of express mechanisms to review and consult with respect to the seizure of those goods.
In everyone's business, time is of the essence. There is an appeals process, but effectively the merchandise would still be held during that process. Any amendments to clarify that point would be welcome.
Ms. Coombs: I appreciate that there are some concerns about inspection. In the case of the regulated consumer product industry, we have inspectors in our facilities and we have inspectors looking at the products on store shelves. We do not see this as overreach of what they currently do, and we do not view the proposal with any suspicion.
Senator Dyck: I am not surprised that you say that because the products you deal with are largely chemical and many of them are extremely hazardous. As you said before, they probably fall under the Hazardous Products Act.
Ms. Coombs: Yes, for the labelling piece, but the products we provide are safe and beneficial to consumers.
Senator Dyck: Yes, but many of them are hazardous — things like pesticides. You have one here called Killex, so clearly there are quite dangerous chemicals within that; bleach, for example, is quite hazardous.
That is very different from hockey pucks and children's toys. We want children's toys to be safe, but the level of risk to the population from hockey pucks and toys is probably very different from the risk involved in —
Ms. Coombs: No.
Ms. Reed: Remember, one of the statistics is that consumer products cause nearly one-half of the injuries. For young children, it is the first cause of death, so this is a very important matter.
Senator Dyck: I agree, but what are those dangerous consumer products? Would the ones that are causing death be things like car seats or Drano under the sink? We need to know the cause of death.
We have to protect our children, but we also cannot mix and match the different products. They cannot all go under the same product name. There are different risks involved with different products.
[Translation]
Ms. Reed: This brings us back to the discussion that we are having here today. We are dealing with framework legislation. Canadian laws are parent laws that grant authority. The details are contained in the regulations which can be amended. It is very important that all products be fundamentally regulated in the same way to ensure consumer confidence. Subsequently, if it is possible, we will consider making some accommodations through the regulatory process.
[English]
Senator Munson: Hockey pucks have become a theme here today. I have been hit in the head by so many hockey pucks I cannot remember the incidents. Then I ended up in the Senate of Canada.
I am curious about the safety standards on imported products, as opposed to the products manufactured in this country. I lived in China for five years of my life, and I remember we bought a stack of Christmas plates. We kept them for a while and brought them home and had a children's party. We heated up the plates — they had a Christmas tree on them — and the Christmas tree began to light up and ooze and disappear, so we thought that perhaps it was not good for the children to eat off those plates.
How could the bill be amended to improve the safety of imported products?
[Translation]
Ms. Reed: This bill makes importers responsible for product safety. Generally speaking, it prohibits all manufacturers, importers or sellers from having in their possession in Canada toys that are unsafe. In my opinion, this is one of the best ways of managing the situation. We believe that imported products will be regulated just as much as other products under this proposed legislation.
[English]
Mr. Ellacott: With respect to electrical products in this country, electrical product safety is managed by provincial bodies. However, there is currently a framework being developed for a national system with respect to electrical product safety, in which Health Canada is participating; Electro-Federation Canada and many members of the Canadian Consumer Product Safety Coalition are involved in that process.
With respect to electrical products, there are certification marks that are issued by laboratories that are accredited by the Standards Council of Canada, as well as in the plumbing industry. Many industries within our coalition are already regulated, with certification marks that consumers can look to. For example, CSA would be a mark they could see on our product.
Your question is specific to certain industries.
Senator Munson: I was talking about amendments. Is anyone interested in amendments to this on imported products?
Mr. Irwin: With respect to our industry, any importer has to make sure that the product meets all the current safety regulations and the safety regulations that will be in place as a result of Bill C-6.
Of the products that are imported into Canada, 75 per cent come from China. China is just as concerned about product safety as North America. The Chinese require products to be safety tested before they are exported.
Many manufacturers engaged in the manufacturing of toy products in China have to go through a safety test procedure and certification. There are all kinds of batch testing and date coding on products to ensure you can identify it if anything goes wrong. In my opinion, everything is in place to ensure imported products follow those safety regulations.
Senator Munson: I have another question on the unintended consequences that were alluded to earlier in our discussions. It has to do with people who run craft businesses or cottage industries. It also has to do with charitable organizations. Based on what we have seen in this bill, is it possible that some businesses would go broke because of the reporting and other unintended consequences that go along with this bill?
Mr. Irwin: I believe that is a grave concern for the small business person, particularly the business person who makes products in the home or locally. They have to be fully engaged in terms of what the bill is all about and the regulations with respect to it. That is certainly a possibility.
Ms. Coombs: One could argue that if you are operating a business and providing consumer products, you need to be accountable to your consumers.
Senator Segal: I want to understand what Ms. Coombs just said. You are saying that as far as your members are concerned, they have to be accountable even though they do not know how the discretion given by this law to public servants will actually be executed. I want to be clear that you are here today representing your membership and you are comfortable with the notion that they have to be accountable to what could be a standard that changes day-by-day before the regulations are out. I want to be clear that based on the best intentions of public servants who are not accountable to any regulatory body with respect to how they might discharge their obligations as defined by ``la loi encadrant,'' as Ms Reed indicated, you are fine with that. That is important for our deliberations.
Ms. Coombs: You did not give me a moment to change my mind. I guess we do not approach it the same way. I appreciate your view, senator. However, we do not view it with suspicion. I believe there will be effective consultations with Health Canada. Earlier, consultations were mentioned, and I could use the phrase, ``they will kill us with consultations on this.'' There is no doubt in my mind. We have had enough experience. There will be consultations on how this moves forward. I do not view it in the same way.
Senator Callbeck: I want to ask about reporting. Mr. Irwin, you mentioned in your comments the importance of having reporting measures that are workable for all sizes of business. Some concern has been expressed about the 10- day limit for getting a full report to the minister. I would like to hear comments as to whether 10 days is realistic.
Mr. Ellacott: The overarching concern is an incident in Canada or elsewhere. If the companies need to report unsubstantiated incidents from jurisdictions not only within Canada and outside of Canada, and report that within 48 hours, frankly some businesses may be able to do that, and others may not.
Certainly, in the case of an electrical product in the appliance industry, an investigation would require obtaining the product. That product will have to go to a specific laboratory that would engage specific product safety engineers. We would have to demonstrate the product defect. We would have to duplicate and replicate it. The timelines are very challenging, especially if an incident is overseas or in a foreign jurisdiction.
Going back to the definition of an ``incident,'' once a company has had ample opportunity to investigate it and understand the nature of it and the potential cause and effect, then a discussion is likely warranted. In the policy and guidelines, could a company illustrate a test procedure within the 10-day period? The test procedure may not take 10 days, but it could lay out the parameters of a test procedure to get to the product defect. That could be a potential opportunity.
Senator Callbeck: The report goes to the minister. When do you expect to hear back from the minister?
Mr. Ellacott: I do not believe those timelines have been set in the legislation.
Senator Callbeck: I do not think they have been set. I looked through the legislation.
Mr. Ellacott: I do not want to be misquoted, but I think they are not set out.
Mr. Irwin: I do not think that is in the regulation.
Senator Callbeck: If that takes a couple of months, is this product still on the shelf and being sold?
Mr. Ellacott: There is potential for that, yes. Health Canada would have to set direction to the company about its intention.
The Chair: We will have to find out Health Canada's procedures. If the legislation is passed, in whatever form it is passed, the question of the policy and guidelines will follow. We will find out the time frame and whether we will have the opportunity to have a look at that. Then there is the question of regulations. There are varying opinions on how long that might take, even though I understand they are underway in draft form. We will try to get clarification from Health Canada.
Ms. Reed: I am not a lawyer, but as we can see in clause 14, there is a definition of ``incident'' in 14(a), (b), (c) and (d). I do not understand why the other stakeholders want to have it more defined than that.
It is important that it is two days after the day on which they become aware of the incident. It is not something that happens in China and you do not know it and you will be responsible for it. It is the date when they become aware of the incident.
Senator Martin: I want to go back to the concern about the disclosure of information and the notification issue. You have all confirmed that there has been, on Health Canada's part, clear consultation, cooperation and collaboration, working with businesses to reach a solution for whatever danger is being posed by the product. If a solution has not been reached and they must order the recall because corrective action has not been taken satisfactorily, Canadian consumers want to know that tools are available so that the minister can take action. By the time it has reached that point, it seems like notification would be a non-issue because there has already been consultation. You have all confirmed that, so I wanted to point that out. As Ms. Reed has said, in clauses 15, 16 and 17, that disclosure of information is done if it is essential to address the danger, but leading up to that point there has been notification, consultation and collaboration, et cetera. It articulates clearly in the bill these very extreme cases in which this would be necessary to protect the consumer and address the danger.
Senator Day: Thank you all for being here. I would like to start with the regulation issue. Last week, we had two representatives from Health Canada here, and Mr. Ianiro indicated that they have difficulties with generating regulations. It could take up to 18 months to get a regulation through and printed in the Canada Gazette. By then, we will then have learned many things and are back to square one. He indicated they would be proceeding by way of these policy guidelines, and that is the consultation you are doing now. The indications were that this would be over a six- or seven-year cycle. We will look at all aspects of the earlier regulations in developing new ones. In the meantime, we will operate with these policies.
Our difficulty is that we do not have any oversight with respect to policies. We have oversight as parliamentarians with respect to regulations. We have a committee that reviews those regulations. We are being asked to choose a pig in a poke; we do not know what we are choosing. Historically, Parliament has been asked to pass specific legislation generated by the public service. I think two or three of you alluded to this in your presentations. Sometimes people you wanted to catch were outside that very specific legislation. However, we were prepared to take that risk because we did not want to burden citizens with legislation that covered them when they were not doing anything particularly wrong.
Then along came legislation in regulated industries that have inherently dangerous products. The nuclear industry is an area with certain environmental aspects where we decided we could cast the net much broader. Tobacco is another such industry. You can think of many inherently dangerous products where it was okay to have that broad legislation.
Now we are being asked to apply the same legislation to products that are not inherently dangerous. Yet, still the net is cast very broadly. They are saying ``trust us.''
At our last meeting, one of our colleagues raised the issue of second-hand vendors such as thrift shops. There are many of them. The witness told us no, we will have a regulation that excludes them. We had to ask the question to find out their intent. We have not seen the regulation yet, but we are asked to pass the law. If we have to create a regulation to exclude something, it means that the legislation has been cast broad enough to catch something it did not intend to catch. That is our concern. That concern is what is behind all of our questions.
Let me point out a few areas that cause concern flowing from some of your questions. I would like to look at the definitions of ``government'' and ``sell.'' Everywhere in the legislation where the word ``government'' appears, this is what it could mean, what the inspector will be told and what the judge will look at in a court case. Clause 2 says:
``government'' means any of the following or their institutions:
(a) the federal government;
(b) a corporation named in Schedule III to the Financial
Administration Act;
(c) a provincial government or a public body under an
Act of the legislature of a province;
(d) an aboriginal government as defined in subsection 13(3) of the Access to Information Act;
(e) a government of a foreign state or of a subdivision of
a foreign state; or
(f) an international organization of states.
You will note with respect to province, it was the province or a public body established under that legislative body. Internationally, it says a foreign government or a subdivision. It does not have that restriction. There are many subdivisions. We talked about China, but there are many other countries where there is a much closer relationship between business and the state where virtually all businesses have state involvement.
Under clauses 15 or 16, whenever information is given to a foreign government, it will go to a potential competitor of a Canadian company. We are concerned about those kinds of things. It could include that situation because the definition is too broad. I wanted to bring that to your attention.
Another definition is ``sell.'' Normally everyone understands what ``sell'' means. However, under this legislation, it means:
``sell'' includes offer for sale, expose for sale or have in possession for sale — or distribute to one or more persons, whether or not the distribution is made for consideration — and includes lease, offer for lease, expose for lease or have in possession for lease.
Note that ``sell'' includes, but is not restricted to one of the things. You are selling if you distribute something, if you give it to someone, whether or not you are selling it, whether you are asking money for it or not, or if you distribute to one or more people. You can imagine the number of items that you might have acquired that you will give to someone else. You do not want any money for it; it was a gift. It does not exclude gifts. It could include all of those things.
We are being told, ``trust us, we are not after these little guys; we are not after those situations.'' However, we read the legislation; we do not look at the overall policy. We are required to look at the legislation. Our job is to look at the legislation and to understand it.
Ms. Reed, regarding your comment on page 3 of your document, I want your clarification. I have the English version.
[Translation]
I will put my question in English, but feel free to answer in French. We understand both languages.
[English]
The second full paragraph in English starts ``in order to ensure.'' You say: However, there is no question of their entering private property without a warrant.
We are talking about inspectors and inspectors powers. I would like to you look at clause 20(4) of the act. Then maybe you could tell me what you were referring to. It says:
20(4) An inspector who is carrying out their functions or any person accompanying them may enter on or pass through or over private property, and they are not liable for doing so.
They can go in; they can bash doors down; they can do all kinds of things; they are not liable. This is on private property and no warrant is required. Could you tell me what you mean in that clause?
[Translation]
Ms. Reed: Thank you for the question, Senator Day. It appears that inspectors are granted these powers for law enforcement purposes. Inspectors carry out their duties in commercial establishments that engage in regulated activities. An inspector cannot enter a private dwelling place without a warrant. No one has the authority to do that, even police officers. I do not see why an exception would be made in this instance. This authority is truly derived from the legislation.
[English]
Senator Day: It seems very strange to me. If you are entering private property, why not get a warrant. It is such an easy thing to do if they have reasonable and probable grounds to believe there is a violation.
[Translation]
Ms. Reed: One needs to understand that the inspector has a job to do. At times, that job entails carrying out inspections in a warehouse or store. The inspector's job is to protect the public and to ensure that the safety of Canadians is not threatened by certain situations. Obviously, inspectors must have certain powers, otherwise how could they enforce the act? The same is true in the case of food products. Inspectors can examine organic products to see if they are properly labelled. That job is part of the law enforcement process.
[English]
Senator Day: I should point out to you that if this private property happens to be a dwelling place, there is the normal legal requirement to obtain the warrant. There is no statement of liability for any damage caused in such a search. That would be in the warrant presumably, but there is nothing that prevents them from being responsible for any damage they have caused.
With respect to private property, inspectors do not need a warrant and they are not responsible for any damage they cause. I want to you think about what kind of implications that could have for your members, if we happen to have an inspector who is a little less reasonable than we assume he or she will be.
I point out to you that clause 20, gives the inspector these powers for the purpose of not only verifying compliance, but also ``preventing non-compliance.'' It is not any reasonable suspicion; it is just preventing non-compliance. The inspector can say, ``I am in here to prevent non-compliance. I just do not want anybody to not be in compliance, so I will go in beforehand.''
The Chair: Senator Day, I do want to give other members of the panel an opportunity to respond. Is there any other question you want to put to give the whole panel a chance to response?
Senator Day: Mr. Ellacott mentioned clause 14. I would like you to look at paragraph 14(1) (a) which states:
In this section, ``incident' means, with respect to a consumer product,
I am going to leave out some of these words because there are many different options.
(a) an occurrence in Canada or elsewhere that resulted . . . in a serious adverse effects on their health, including a serious injury.
A person who sells must report that incident. We talked about the definition of ``sell'' earlier on; that is a person who distributes to one or more persons not for consideration something that could possibly or has caused some injury.
What could you imagine in a consumer product that might fit under that definition?
Mr. Ellacott: It does not address the inherent risk of a product — the hockey puck, the knife. It does not relate specifically to a product defect; is there a specific defect in the product that would trigger that?
Also, is the incident a substantiated claim? Is there an opportunity for a competitor to launch a claim that is a reported incident that is unsubstantiated? Would the manufacturer then have to do due diligence with respect to that? Those are the proposed amendments that were in our proposal.
Senator Day: We were talking also about clauses 15, 16 and 17, disclosure of information and the different personal information and corporate information. I want to point out two things to you.
One is that this can be a disclosure to government. We talked earlier about government; the very broad definition of government includes foreign entities and any of their subsidiaries, which are most likely to be competitors. Therefore, if there is confidential information, you have to assume that it will be disclosed to your members' competitors.
The second question I would like to ask you is why we find that the information can be disclosed to entities that are involved with environmental issues. Only in clauses 16 do we find a discussion of environmental issues. It is the disclosure with respect to health, safety or environmental harm.
How does that fit in with the scheme of this bill? Have you had any discussions in your extensive consultations? I think, Ms. Coombs, you indicated that you were almost overwhelmed with your consultations. Have you had any discussion in that regard? Can you help me?
Ms. Coombs: I do not have a specific example of a product that may harm the environment. That is not to say there are not any. Given the experiences we have under CEPA, 1999, and with Environment Canada and Health Canada, and the challenges we are working through on the chemical management plan, I do not see it as being unreasonable. I would think that may be a question to ask the Health Canada officials when they come back, as specific to environment.
Senator Day: You understand clause 16 says:
16. The Minister may disclose confidential business information to a person or a government that carries out functions relating to the protection of human health or safety or the environment. . . .
Health Canada is giving your members' confidential business information to the Mongolian subcommittee on environmental issues. That is what that says.
Ms. Coombs: I do not interpret it that way, but they can give confidential business information to other jurisdictions.
Senator Day: Government.
Ms. Coombs: With our permission, yes.
Senator Day: Not with your permission — no permission necessary.
Ms. Coombs: I understood that the permission would be necessary, as our experience under the Pest Control Products Act has been that they have a discussion with you and they say this is something we need to report.
Senator Cordy: It does not need the consent of the person whose business or affairs it is; it is written into the bill. They do not need your consent; in fact, you would not even have to be notified. In the bill, it says you do not even have to be notified.
Senator Day: Not even after.
Senator Cordy: This could go to the government of Mongolia subcommittee on environment.
Senator Day: You just assumed that the policy at this level is going to be implemented into this particular legislation. We all agree with you at the policy level. We have the job of looking at what has been written to implement that policy. I have just pointed out a few of our concerns where some us believe that the policy has not been drafted in a manner that is acceptable to Canadians.
Ms. Coombs: I appreciate that. Mr. Chair, if I could say, the bottom line for us is if you want to sell products to consumers, industry must be accountable — and that is all industry.
Senator Day: We could not agree more.
The Chair: Thank you, Senator Day, and thank you to all my colleagues and the panellists for coming and giving us your thoughts on the matter.
Senator Segal: I want to understand. The steering committee has made a decision that there will be how many more hearings — just two?
The Chair: Two more hearings at this point, unless this committee wants to direct any further hearings. That is two more hearings with respect to witnesses from outside. I anticipate that we will probably have another witness from Health Canada and at that same meeting possibly begin our decision-making process.
Senator Segal: I do not question the judgment of the steering committee; it sounds like they have tried to bend over backwards to be fair. However, your colleagues on the committee do not know who else has asked to be heard, so it is difficult for us to offer any advice.
Are you saying that aside from the people on that list that no other group of Canadians has asked for the chance to be heard before this committee?
The Chair: I did not say that Senator Segal. We can keep going for months hearing people who would like to be heard.
What we have attempted to do is to come up with a list of people from different sectors that have different perspectives and views — some supporting, some supporting with the amendment, and some not supporting at all. We have come up with a cross-section so that the information that we feel this committee needs will be before it. It is up to this committee if it wants to hear from more people. If it wants to duplicate the same kind of view, we can do that, but we felt, as the steering committee, that this would do it, which would require, at this point in time, two more meetings.
Senator Segal: Beyond the meeting with Health Canada.
The Chair: Yes, before the meeting with Health Canada. I am just referring to outside witnesses. I am happy to receive any more suggestions if you feel there is a perspective that is not covered. We have not been able to find one that is not.
Senator Day: Could you make that list available?
The Chair: You have it in front of you.
Senator Segal: That is the list of people appearing, but we do not have the list of people who asked to appear. Could we see that?
Senator Day: We are looking for a balance of points of view.
The Chair: I am sure that is what the steering committee is trying to do.
Senator Segal: Committee members are receiving emails and we want to be able to provide a rational answer to the senders of those emails.
The Chair: We will prepare a list of who has asked to appear, and you now have the list of whom we are inviting to appear. You can get back to me or to the steering committee if you wish to talk about additional representatives.
Senator Day: There is another point, Mr. Chair. Briefly, we received a letter from the Privacy Commissioner, which seemed to me quite inconclusive. Last week, Health Canada said they had ongoing discussions with the Privacy Commissioner dealing with this confidential information. I am assuming the steering committee would not go forward with a clause-by-clause consideration until that is resolved.
The Chair: I read the same report and I was under the impression that the Privacy Commissioner felt that the matters of her concern were being dealt with appropriately.
Senator Day: She looked forward to dealing with all of the issues that were of concern once the law was passed, which is not the usual way that we would anticipate doing that. Could we have her come and speak to us?
The Chair: We could do that. We can have her come at the same meeting when the Health Canada officials are back.
Senator Cordy: Is the minister on the list?
The Chair: No, not at this point. We have been dealing entirely with the Health Canada officials. If you want, we can also invite the minister for the last meeting. She is a bit occupied, as Senator Keon says, but we have summoned ministers before, and we can do it again. Do you want me to extend the invitation to the minister?
Senator Cordy: Yes. Usually the minister appears when he or she wants passage of the bill.
The Chair: We will invite the minister, and we will invite the Privacy Commissioner. We will send you a list of who else has asked to come, and you can easily subtract that, and you will see what we have that was not approved. We will take suggestions.
(The committee adjourned.)