Registration

SOR/2008-230 July 28, 2008

HAZARDOUS PRODUCTS ACT

Order Amending Part II of Schedule I to the Hazardous Products Act (Lighters)

P.C. 2008-1338 July 28, 2008

Her Excellency the Governor General in Council, on the recommendation of the Minister of Health, pursuant to section 6 (see footnote a) of the Hazardous Products Act (see footnote b), hereby makes the annexed Order Amending Part II of Schedule I to the Hazardous Products Act (Lighters).

ORDER AMENDING PART II OF SCHEDULE I TO THE HAZARDOUS PRODUCTS ACT (LIGHTERS)

AMENDMENT

1. Item 34 of Part II of Schedule I to the Hazardous Products Act (see footnote 1) is replaced by the following:

34. Lighters as defined in the Lighters Regulations.

COMING INTO FORCE

2. This Order comes into force 90 days after the day on which it is registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Order or of the Regulations.)

Description

This regulatory initiative is intended to maintain the protection of the health and safety of Canadians by amending the Hazardous Products Act and the Lighters Regulations (the Regulations). These Regulations were introduced in 1979 as a measure to reduce deaths, injuries and property damage associated with lighters.

To maintain the protection of the health and safety of Canadians, this initiative will expand the scope of the Regulations to include utility lighters (also known as multipurpose or barbeque lighters) and to update a standard referenced in the Regulations. To clarify manufacturers’ administrative requirements, this initiative will: amend the language of the Regulations, as identified by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR); and amend the date at which the amendments come into force.

Issue of utility lighters

When the original Hazardous Products (Lighters) Regulations were promulgated, lighters were established as Item 34 of Part II of Schedule I of the Hazardous Products Act. The term “lighters” was qualified with the phrase, “intended for use for cigarettes, cigars and pipes.” After promulgation, products began to appear in the marketplace with essentially the same technology and functions of lighters, but were sold as utility or multipurpose lighters. These products were intended for, and the packaging implied that they be used for, items other than “cigarettes, cigars and pipes.”

This regulatory initiative will amend Item 34 to ensure that utility lighters are included in the definition of lighters.

Issue raised by SJCSR

One of the Regulations’ child-resistance requirements stated that importers and manufacturers keep, for a specified period, Compliance Certificates for each model of lighter (other than luxury lighters) that they sell. This requirement (section 3.2) reads as follows:

“The manufacturer and the importer of a product other than a luxury lighter shall .... ”

The SJCSR advised Health Canada that a manufacturer who failed to comply with section 3.2 would have contravened the Regulations even though no lighters may have been advertised, sold or imported. Since the intention is to apply these provisions only to those manufacturers who sell or import non-luxury lighters, section 3.2 will be amended to read as follows:

“A person who manufactures and sells or who imports a lighter, other than a luxury lighter, must .... ”

This amendment will ensure that only manufacturers who intend to sell or import a lighter keep the required documentation.

Issue of the new Code of Federal Regulations Standard (United States)

Upon reviewing the test protocol 16 CFR 1212.4, a child-resistance test protocol for utility lighters introduced in the United States by the Consumer Product Safety Commission (CPSC), Health Canada discovered that the CPSC 16 CFR 1212.4 test is very similar to the 16 CFR 1210.4 protocol referenced in the Regulations (the difference between the two test protocols is that, for utility lighters, child-resistance tests are required to be conducted with any “on/off” switches placed in the “on” position at the start of the tests). In order to harmonize Canadian and American test protocols and procedures, this initiative will add a reference to the new 16 CFR 1212.4 test protocol.

Issue of the coming into force date

Regulations normally come into force as soon as they are registered but can only be enforced once published in Part II of the Canada Gazette. Representatives from the lighters industry have requested that the amendments come into force 90 days after registration, thereby allowing them a period to comply with the new requirements.

Alternatives

Status quo

The status quo for each of the issues addressed in this initiative was deemed unacceptable on the grounds that each proposed amendment addresses an issue that increases the overall effectiveness of the Regulations.

Maintaining the status quo would continue to expose Canadians to risk when using utility lighters, as the Regulations do not apply to these products. The status quo also leaves open to interpretation the intention of section 3.2, as identified by the SJCSR.

Voluntary standard

Health Canada has, for several years, taken a voluntary approach to address utility lighters. By means of an open letter (see footnote 2) to manufacturers and importers of utility lighters dated September 18, 1998, Health Canada asked the industry to voluntarily comply with the child-resistant requirements for lighters of tobacco products. A degree of success was achieved through this initiative. However, some importers and distributors continue to provide utility lighters to the Canadian market that do not have child-resistance mechanisms.

Continuing to rely on voluntary compliance is not an acceptable alternative because Health Canada is currently unable to require and enforce child-resistant features that would help protect the health and safety of Canadians, including children.

Adopting the Regulations

The adoption of the amendments will allow for the following:

• increased protection of the health and safety of Canadians by making utility lighters subject to the same regulations as lighters as defined in the Regulations;
• clarification of the manufacturer’s obligation with respect to the Compliance Certificate (as requested by the SJCSR);
• elimination of the need for manufacturers to have their product tested to two similar Canadian and American child resistance test protocols; and
• facilitation for the industry to make the transition from the current regulations to the new regulatory requirements.

Benefits and costs

Benefits

Benefits are assessed based on the identification and categorization of the adverse impacts that will be avoided through the regulatory action. Social benefits can be assessed and measured in terms of avoided social losses. These are not limited to reductions in out-of-pocket expenses or increased earnings. Therefore, non-monetary gains to society, such as the avoided pain and suffering from illness or injury, are evaluated in monetary terms.

A. Utility lighters

The main purpose of these amendments is to ensure that utility lighters are considered as restricted products under the Hazardous Products Act. Concern over safe operation of utility lighters arose when lighters were recalled in the United States and Canada. As a result, Health Canada conducted a national survey of utility lighters in which selected lighters underwent performance evaluation tests similar to those already in place for cigarette lighters. Those brands named in the July 15, 1999 advisory, found in Appendix A, either leaked fuel, had flame heights over 150 mm (6 inches), caught fire, continued to burn after they were turned off, or exploded (without flame) when exposed to elevated temperature.

In order to ensure the safety of the Canadian public, there are three requirements that utility lighters will need to meet.

1. Child-resistance requirements

Child-resistance will be required for all utility lighters in Canada. Canadian Fire Services has reported that in 2001 alone, 519 fires were attributed to children playing with fire sources which included both lighters and matches. These fires resulted in 41 deaths, 499 injuries and $10.4 million in property loss. As previously mentioned, the CPSC introduced test protocol 16 CFR 1212.4 in the United States. In order to harmonize Canadian and American test protocols, it is the intention of this initiative to reference the 16 CFR 1212.4 test protocol. Having a required child-resistance mechanism in place will lower child-play fires and associated deaths, injuries and property losses.

2. Performance testing requirements

Health Canada has a test protocol for utility lighters that has been formally available to industry since October 29, 2001. The protocol provides assurance to the manufacturer and importer that their products operate in a safe manner when used as intended. Testing helps in product quality control to identify when correction in the manufacturing process is required. If a problem is found and corrected immediately, it will save industry time and money in recall efforts should the product be found to be unsafe at a later time. Additionally, ensuring that utility lighters perform as intended will help reduce unnecessary fire incidents and injuries.

3. Safety labelling requirements

Under this amendment, utility lighters will be subject to mandatory labelling requirements where they were previously excluded. Utility lighters will be required to have warning statements and refuel instructions (in the case of refillable utility lighters) which are aimed at reducing the incidence of utility lighter fires and the resulting injuries and property losses.

B. Coming into force

The benefits of extending the “coming into force” date to 90 days after registration of the amended Regulations are seen as administrative. The benefits derived from this amendment are mainly achieved by manufacturers who advertise, sell or import lighters in Canada. With this amendment, manufacturers will have sufficient time to realign their supply and manufacturing procedures. Additionally, they will have clarification with respect to the obligations of keeping Compliance Certificates information, and their products will be subject to harmonized test protocols in Canada and the United States.

C. Level playing field

The regulation of utility lighters will create a level playing field for manufacturers of these products. The majority of lighter manufacturers have been complying with the Regulations and the voluntary standards. This group, including members of the Lighters Association Inc., supports more rigorous regulation of utility lighters as it will force non-complying manufacturers to meet the same standards and requirements.

D. Social benefits

Social benefits will result from reductions in three negative types of occurrences linked to the use of utility lighters:

1. Injuries or fatalities to the user of utility lighters,

2. Injuries or fatalities to non-users of utility lighters, and

3. Damage to personal property resulting from the use of utility lighters.

In each of these three scenarios, social benefits can be divided into two general types: internal benefits and external benefits. Internal benefits (avoided internal losses) accrue to those who are directly using utility lighters. External benefits (avoided external losses) are those accruing to individuals who are not directly involved in the activity but who would nonetheless be negatively affected by the activity. For example, external benefits from improving the safety of utility lighters will include the avoided suffering of family members when a loved one is injured through the use of a utility lighter.

Costs

The assessment of cost considers incremental costs that arise from the regulatory action and do not include costs for pre-existing activities. The total cost of a revised regulation to encompass all lighters, including utility lighters, is represented by compliance costs to industry and government regulatory costs. Cost data come from industry representatives (responses from consultation) and expected government monitoring costs.

A Canadian manufacturing sector of utility lighters does not exist and, as such, they are only available through importation. Consequently, the incremental cost of a new control measure to Canadian industry is low to nil. Costs will continue to apply to the Government for its standard enforcement and administration procedures.

A. Utility lighters

1. Child-resistance requirements

As the child-resistance requirement already exists in the United States under 16 CFR 1212.4, it is expected that the implementation costs for manufacturers will be low as they are already manufacturing products that conform to this test protocol.

2. Performance testing requirements

The nature of the tests and the order in which they are performed are the same as the method designed for cigarette lighters, mainly because the two products are very similar and could therefore present the same hazards. The fact that cigarette lighters are currently restricted and many manufacturers are aware of the Canadian requirements, and do adhere to them, will make the inclusion of utility lighters fairly straightforward. There may be a small cost to ensure that products meet the requirements, but it will be offset with the knowledge that a safe product is being marketed.

3. Safety labelling requirements

Additional cautionary statements may result in marginal increase in printing costs. However, many of the utility lighters currently marketed in Canada already have a warning label, and it will only need to be expanded upon with the required statements and information outlined in the amendment.

B. Coming into force

The costs of extending the “coming into force” date to 90 days after registration of the amended Regulations are seen as administrative. It is anticipated that there will be no increase in costs to Canadians, manufacturers or our Government.

Net b enefits

Net benefits are calculated as total social benefits less total social costs. Based on the most recent available data, between 1998 and January 2007, there have been four major injuries and four minor injuries associated with utility lighters reported to Health Canada. This is likely an underestimate for Canada as a whole, as it does not include injuries not reported to Health Canada. However, this averages to be approximately one injury per year resulting from the use of utility lighters. The data demonstrates that the benefit of a control measure will therefore be at least as much as one avoided injury per year.

Since there is no indication as to the severity of the aforementioned injuries, assumptions must be made to assign a cost of illness value to the injury. Cost of illness measures include expenditures associated with physicians, care expenses, hospitalization and pharmaceutical products. Canadian injury valuation data for burns is not sufficiently detailed and therefore, data from the United States had to be employed. By using data from the Healthcare Cost Utilization Project (see footnote 3) (HCUPnet) and converting it to Canadian dollars, the cost of illness for burns per injury for all ages in 2001 was found to be $41,145. This obviously depends upon the injury severity, which is not known. Given that the incremental regulatory and compliance costs are low, and even with one major injury avoided per year, there will be a positive net benefit to Canada from a new regulation from utility lighters.

Consultation

As part of the consultation for these amendments, Health Canada sent letters to industry and other interested parties on December 8, 1999 and September 1, 2000 to advise of the intention to include utility lighters in the Regulations. These letters were also posted on Health Canada’s Web site. (see footnote 4)

On March 13, 2004, Health Canada pre-published, in Part I of the Canada Gazette, the proposed amendments to the Hazardous Products Act and the Lighters Regulations addressing the inclusion of utility lighters in the definitions of the Regulations and the proposed amendment addressing the issue identified by the SJCSR.

During the March 13, 2004 pre-publication comment period, responses were received suggesting that test protocol 16 CFR 1212.4, introduced by the CPSC in the United States, be included in the proposed amendments. Responses were also received that requested a 90-day period before the amendments come into force so that manufacturers can adjust their inventories and supply.

The Lighters Association Inc., whose members provide over an estimated 50% of the lighters, utility lighters and luxury lighters sold in Canada, had indicated that it supports this initiative. The utility lighters sold by its members are already in compliance with the proposed amendment.

On August 11, 2007, Health Canada again pre-published the proposed amendments in Part I of the Canada Gazette with minor changes reflecting the comments received as a result of the March 13, 2004 pre-publication. After the 75-day period for stakeholder comments, no responses were received by the Department that requested further changes or objected to the content of this proposal.

Compliance and enforcement

Enforcement of the Lighters Regulations will follow standardized departmental product safety inspection and enforcement procedures. This will include the sampling and testing of lighter products, as well as the follow-up of both consumer and trade complaints. Action taken on non-complying products will range from negotiation with traders for the voluntary withdrawal of these products from the market to prosecution under the Hazardous Products Act.

Contact

Graham Stewart
Project Officer
Consumer Product Safety Bureau
Product Safety Programme
Healthy Environments and Consumer Safety Branch
Department of Health
Address locator: 3504D
123 Slater Street
Ottawa, Ontario
K1A 0K9
Telephone: 613-946-6455
Fax: 613-952-9138
Email: graham_stewart@hc-sc.gc.ca

Footnote a
S.C. 1996, c. 8, s. 26

Footnote b
R.S., c. H-3

Footnote 1
R.S., c. H-3

Footnote 2
http://www.hc-sc.gc.ca/cps-spc/advisories-avis/aw-am/ltr-1998_e.html

Footnote 3
HCUPnet: http://hcupnet.ahrq.gov/

Footnote 4
http://www.hc-sc.gc.ca/cps-spc/advisories-avis/aw-am/ltr-1999_e.html and http://www.hc-sc.gc.ca/cps-spc/advisories-avis/aw-am/ltr-2000_e.html

NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with extensible hypertext markup language (XHTML 1.0 Strict).