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Government Responds to Product Injuries with New Legislation

Victor Lewin - Monday, June 13, 2011

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Consumer products are goods companies place into the marketplace for sale and consumption. The primary goal of the market is profits. Usually product safety objectives and responsible advertising work in conjunction with profit maximizing. However, sometimes they do not.

Occasionally, companies will cut-corners or provide the public with misleading product or safety information. This can have an adverse effect on an individual's heath. Injuries stemming from product defects are becoming increasingly more common. Some speculate that this is due to the modern marketplace, where there is an increased consumer demand and pressures on companies for speedier innovation to the market.

Fortunately there is good news coming. Next week, on June 20, 2011, the Canada Consumer Product Safety Act will be coming into force. The Act will be of great benefit to the public and will undoubtedly provide Canadian consumers with increased product protection.

The Act imposed certain responsibilities on manufacturers, packagers, distributors and advertisers. The obligations are in force in every province in Canada, including Nova Scotia, New Brunswick and P.E.I. The obligations seek to protect the public from injury and loss.

hockey helmet-thumb-260x260-21083.jpg The Act applies to merchandise items, like children's toys, household/building products, sporting goods (hockey helmets, fishing rods, etc) and miscellaneous equipment (car booster seats, textiles, etc.). The legislation does not apply to cars/trucks, food, drugs or natural health products. These consumer products are already covered by other Canadian legislation.

The new legislation is intended to address dangerous products by placing responsibilities on companies and empowering officials to recall products that are a "danger to human health or safety". The Act describes that as meaning:

"any unreasonable hazard - existing or potential - that is posed by a consumer product during or as a result of its normal or foreseeable use and that may reasonably be expected to cause the death of an individual exposed to it or have an adverse effect on that individual's health - including an injury -whether or not the death or adverse effect occurs immediately after the exposure to the hazard, and includes any exposure to a consumer product that may reasonably be expected to have a chronic adverse effect on human health"

The Act requires that companies report to Health Canada of any product defects or product safety issues that can cause death or injury to a consumer. This "early warning" provision will enable Health Canada to independently investigate and assess potential defects that could reasonably be expected to result in death or harmful injury. This obligation also applies to inadequate product labeling or instructions that could lead to the same results.

With the implementation of the Act, there will now be a general statutory prohibition of manufacturing, selling or advertising any consumer products that could pose an unreasonable danger to the health and safety of consumers in Nova Scotia, New Brunswick and PEI, along with all other Canadians.

The Act prohibits the advertisement or labelling of product information that could pose a danger to the health and safety of Canadians.

A further key component of the Act requires a manufacturer, distributor and advertiser to maintain accurate records and paperwork so that unsafe products can be traced back to their source and ultimately liability can be established.

When requested to do so, companies must provide evidence (via testing or studies) of their compliance with the Act. In short, they must establish that their products are reasonably safe and that their consumers do not risk injury through purchase. One of the major effects of the Act is that it authorizes the Canadian Government to affective action to issue recalls when required. Surprisingly, Health Canada didn't already have the power to recall unsafe products. The government has had to rely on voluntary recalls by responsible companies and not all companies are responsible.

It remains to be seen how much of a role the new legislation will play in lawsuits when a victim is injured by a product. Where a company chooses to place a defect product on the market in a manner which contravenes the legislation, it is forseeable that the Act will afford injured victims greater access to justice by way of class actions. Ultimately however, the lawyers at Wagners see this as one of the most important pieces of legislation to come into effect in recent years as it is hoped that manufacturers, advertisers and distributors of consumer products will take note of the legislative changes and that less injuries will result from defective products.

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