Legislation May Have ‘Seller Beware’ Philosophy

(Law Times – Julius Melnitzer)

In its 2007 throne speech, the Conservative government promised to “introduce measures on food and product safety to ensure that families have confidence in the quality and safety of what they buy.”

With the introduction in May of bill C-51, which amends the Food and Drugs Act, and bill C-52, the proposed Consumer Product Safety Act, the government was well on its way to fulfilling that promise – in spades. The legislation, if enacted, will substantially change the regulatory regime for food, therapeutic products (including drugs, natural health products, and medical devices), cosmetics, and other consumer products.

The legislation has a very wide reach, with implications for pharmaceutical, medical-device and other health-product companies, food manufacturers, and anyone that manufactures, imports, advertises, or sells consumer products.

“The breadth of the legislation really does impact on everyone by adding an enormous level of infrastructure throughout the supply chain,” says Martha Healey of Ogilvy Renault LLP’s Ottawa office. “But it also goes so far as to affect individuals to the extent they give away or sell products at garage sales.”

Which means the legislation may be impacting on a host of organizations that don’t realize they’re affected until it’s too late.

“Under the present wording, even a product that is only occasionally used for non-commercial purposes could be covered,” says Elizabeth McNaughton of Blake Cassels & Graydon LLP’s Toronto office. “You could, for example, have a company that sells commercial stoves to restaurants with the occasional sale to a consumer, and that makes the stove a consumer product.”

Doubtless, the fact that product recalls and public notices of voluntary withdrawal are at a record high in Canada has made product safety and quality a leading issue for consumers and retailers.

Yet there are lingering questions about the scope of the legislation, namely whether all these effects were intended or whether the proposed laws are just another instance of legislative overkill.

“Everyone’s for child safety,” Healey says, “But it’s odd that someone could be held liable if they give their neighbour a used baby stroller that turns out to be defective and an injury occurs.”

Indeed, bill C-52 creates a general prohibition on manufacturing, importing, selling, or advertising any “consumer product” that poses a danger to human health or safety. “Consumer product” is very broadly defined as “a product, including its components, parts or accessories, that can reasonably be expected to be obtained by an individual to be used for non-commercial purposes, including for domestic, recreational and sports purposes.” Read the complete article.