ARCHIVED — Regulations Amending the Surface Coating Materials Regulations

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Vol. 145, No. 4 — February 16, 2011

Registration

SOR/2011-14 February 4, 2011

CANADA CONSUMER PRODUCT SAFETY ACT

P.C. 2011-50 February 3, 2011

His Excellency the Governor General in Council, on the recommendation of the Minister of Health, pursuant to section 37 of the Canada Consumer Product Safety Act (see footnote a), hereby makes the annexed Regulations Amending the Surface Coating Materials Regulations.

REGULATIONS AMENDING THE SURFACE COATING MATERIALS REGULATIONS

AMENDMENTS

1. The Surface Coating Materials Regulations (see footnote 1) are amended by adding the following after section 7 :

ARTICLES WITH A SURFACE COATING MATERIAL

AUTHORIZATION

Importation, sale and advertising

7.1 The importation, sale and advertising of the articles described in sections 7.2 and 7.3 are authorized if the requirements of these Regulations are met.

FURNITURE AND OTHER ARTICLES FOR CHILDREN

Concentration

7.2 Furniture and other articles for children must not have a surface coating material that contains more than 90 mg/kg of total lead.

PENCILS AND ARTISTS’ BRUSHES

Concentration

7.3 Pencils and artists’ brushes must not have a surface coating material that contains more than 90 mg/kg of total lead.

COMING INTO FORCE

2. These Regulations come into force on the day on which section 37 of the Canada Consumer Product Safety Act , Chapter 21 of the Statutes of Canada, 2010, comes into force.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the regulations.)

Executive summary

Issue: On December 15, 2010, the Canada Consumer Product Safety Act (CCPSA) received Royal Assent and it will come into force on June 20, 2011. Upon coming into force, the CCPSA will replace Part I and Schedule I to the Hazardous Products Act (HPA). The intent of the CCPSA is to modernize and strengthen product safety laws to further protect the health and safety of Canadians. It will also provide an improved regulatory regime which aims to continue keeping the Canadian public safe from dangerous consumer products. As a result of differences in how the CCPSA and HPA are structured, some of the regulations under the HPA needed to be amended as part of their transfer to the CCPSA and new Regulations made in order to avoid regulatory gaps.

Description: As a result of the aforementioned changes, three product-specific regulations are being amended, three product-specific regulations are repealing and replacing Regulations, and five new product-specific regulations are being made. These regulations will address gaps that otherwise would have been created by the coming into force of the CCPSA. In addition, two of these regulations address recommendations made by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) to ensure inconsistencies between the English and French text and other non-substantive issues are corrected.

Cost-benefit statement: These regulations are required to ensure that the health and safety benefits afforded by certain regulations and prohibitions under the HPA will continue, uninterrupted, under the CCPSA. Given that the regulations simply ensure continuity between Acts, a cost-benefit analysis was not undertaken. Also, there are no costs associated with addressing the recommendations of the SJCSR.

Business and consumer impacts: There are no business and consumer impacts. These regulatory activities were undertaken to maintain safety and protection to Canadians.

Domestic and international coordination and cooperation: There are no trade impacts or domestic and international coordination/cooperation impacts.

Issue

On June 20, 2011, the Canada Consumer Product Safety Act (CCPSA) will come into force and replace Part I and Schedule I to the Hazardous Products Act (HPA). The intent of the CCPSA is to modernize and strengthen product safety laws to further protect the health and safety of Canadians.

Generally, regulations are transferred from an Act being repealed to its replacement Act by operation of paragraph 44(g) of the Interpretation Act. This paragraph provides that regulations made under a repealed enactment (in this case Part I of the HPA) remain in force and are deemed to have been made under a new enactment (the CCPSA) that replaces the repealed one in so far as they are not inconsistent with the new enactment. For many of the consumer product regulations, the Interpretation Act will operate to ensure a direct transfer of the regulations from the HPA to the CCPSA without any amendments [e.g. the Hazardous Products (Tents) Regulations].

However, as a result of differences in how the CCPSA and the HPA are structured, the direct transfer of certain consumer product regulations would have resulted in regulatory gaps. For example, under the HPA, the import, advertising or sale of a restricted product (i.e. a product listed in Part II of Schedule I) is not permitted unless there are regulations which set conditions under which the product may be supplied. As such, regulations under the HPA are structured in a manner which allows, rather than prohibits, the supply of restricted products if the requirements set out in the regulations are met. The CCPSA, by contrast, does not list products which would have been classified as restricted products under the HPA. As a consequence, the manner in which the supply of such products is restricted under the CCPSA is through regulations which prohibit the supply of products that do not meet the requirements set out in the regulations. Due to this distinction between the structure of the HPA and that of the CCPSA, some of the Regulations under the HPA need to be amended, and some of the regulations need to be repealed and replaced as part of their transfer to the CCPSA in order to continue the prohibition and regulation of certain consumer products and to avoid regulatory gaps.

Also, two of these regulations address recommendations made by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) to ensure that inconsistencies between the English and French text and other non-substantive issues are corrected.

Objectives

The objective of these regulations is to ensure that the Canadian public continues to benefit from the protection afforded by the regulation and prohibition of certain consumer products once the CCPSA is in force and Part I and Schedule I to the HPA are repealed. These regulations will maintain the current level of health and safety protection to Canadians.

In addition, two regulations will address recommendations made by the SJCSR to ensure that inconsistencies between the English and French text and other non-substantive issues are corrected.

Description

Background

The CCPSA received Royal Assent on December 15, 2010, and it will come into force on June 20, 2011. Upon coming into force, the CCPSA will replace Part I and Schedule I to the HPA (dealing with consumer products) and introduce a new legislative regime. The intent of the Act is to modernize and strengthen product safety laws by overhauling existing rules to further protect the health and safety of Canadians.

Comparison of the two pieces of legislation

The HPA consists of three Parts. (see footnote 2) Part I of the HPA deals with consumer products and it references Schedule I which also consists of two Parts, i.e. Schedule I, Part I and Schedule I, Part II.

Schedule I, Part I itemizes prohibited consumer products (completely prohibited or prohibited with conditions). For example, under the HPA

  • Baby walkers are prohibited under all conditions and are not allowed to be imported, sold or advertised in Canada; and
  • Toys are prohibited under certain conditions. For example, if a toy contained excessive levels of lead or emitted a sound over 100 decibels, it would be prohibited under the HPA.

Schedule I, Part II itemizes products that are restricted. These products are regulated under the HPA, and their respective regulations have specific requirements. For example

  • Chemical products are listed as Item 1 in Part II of Schedule I to the HPA and are regulated by the Consumer Chemicals and Containers Regulations, 2001; and
  • Kettles are listed as Item 28 in Part II of Schedule I to the HPA and are regulated by the Hazardous Products (Kettles) Regulations.

The CCPSA contains a list of prohibited products (Schedule 2); however, the CCPSA does not have a list of regulated products.

When the CCPSA comes into force, the Items listed in Parts I and II of Schedule I to the HPA will be repealed. On the coming into force of the CCPSA, Items from Parts I and II of Schedule I will be transferred to the CCPSA as set out below.

A. Prohibited Items (Part I of Schedule I to the HPA)

Thirty-one prohibited Items currently under Part I of Schedule I to the HPA will be either prohibited or regulated under the CCPSA, and these Items are either

1. Listed on Schedule 2 of the CCPSA;

2. Incorporated into an existing Regulation via a regulatory amendment;

3. Incorporated into Regulations that repealed and replaced Regulations; or,

4. Prescribed in new Regulations if there were no existing Regulations.

Two prohibited Items under Part I of Schedule I to the HPA will not be transferred to the CCPSA (see explanation on page 6).

B. Restricted (regulated) Items (Part II of Schedule I to the HPA)

The 38 regulated Items currently under Part II of Schedule I to the HPA will continue to be regulated under the CCPSA (it should be noted that some regulations address multiple restricted items; for example, the Hazardous Products (Toys) Regulations addressed eight restricted items).

1. 22 product-specific regulations will be transferred without amendments pursuant to paragraph 44(g) of the Interpretation Act.

2. Two product-specific regulations will be amended to ensure the requirements and prohibitions set out in the regulations continue to apply under the CCPSA.

The diagram below illustrates how the Items from Part I of the HPA will be transferred to the CCPSA.

Legislative and Regulatory Framework for Consumer Product Prohibition and Regulations under the CCPSA.

Prohibited Items from Part I of Schedule I to the HPA not transferred to the CCPSA

For the reasons described below, it should be noted that the following two Items from Part I of Schedule I to the HPA will not be transferred to the CCPSA:

(1) Item 36: Any mechanism that resembles or is intended to resemble a “clock-bomb”

Item 36 of Part I of Schedule I to the HPA will not be transferred to the CCPSA because the product in itself is not and will not likely be a danger to the health and safety of the public. Any danger that may arise from these mechanisms is due to their illegal use, and the use or misuse of these products is a matter more closely associated with regulating peace and order. The criminal use of imitation bombs or replica explosive devices is currently prohibited under the Criminal Code.

(2) Item 41: Cigarettes that do not meet certain flammability standards

Item 41 of Part I of Schedule I to the HPA will not be transferred to the CCPSA because this prohibition is currently regulated under the Cigarette Ignition Propensity Regulations made under the Tobacco Act. However, subsection 4(2) of the CCPSA recognizes that cigarette ignition propensity can be regulated under the Act.

Regulations

The regulations outlined below are classified as follows:

  • Incorporation of prohibited Items into an amended regulation
  • Incorporation of prohibited Items into regulations that repeal and replace regulations
  • Prescription of prohibited Items in new regulations
  • Continuation of requirements and prohibitions respecting restricted Items in amended regulations

Incorporation of prohibited Items: Amended regulations

1. Surface Coating Materials Regulations

These Regulations will be amended by adding to them Items 2 and 18 of Part I of Schedule I to the HPA in order to continue regulating lead limits in surface coatings on furniture and other articles for children, and pencils and artists’ brushes under the CCPSA.

Incorporation of prohibited Items: Regulations that Repeal and replace regulations

1. Children’s Sleepwear Regulations

The Hazardous Products (Children’s Sleepwear) Regulations will be repealed and replaced by the Children’s Sleepwear Regulations. The Children’s Sleepwear Regulations will include the requirements of the repealed Regulations and will also include Item 5 of Part I of Schedule I to the HPA in order to continue regulating all flammability requirements for children’s sleepwear under the CCPSA.

2. Restraint Systems and Booster Seats for Motor Vehicles Regulations

The Hazardous Products (Child Restraint Systems) Regulations and the Hazardous Products (Booster Cushions) Regulations will be repealed and replaced by the Restraint Systems and Booster Seats for Motor Vehicles Regulations. The Restraint Systems and Booster Seats for Motor Vehicles Regulations will include the requirements of both repealed regulations and also Item 35 of Part I of Schedule I to the HPA in order to continue regulating car seats and other vehicle child-restraint systems under the CCPSA.

3. Toys Regulations

The Hazardous Products (Toys) Regulations will be repealed and replaced by the Toys Regulations. The Toys Regulations will include the requirements of the repealed Regulations and also Items 3, 7, 8, 9, 10 and 21 of Part I of Schedule I to the HPA in order to continue regulating the safety of toys under the CCPSA. The Toys Regulations will also include changes to improve clarity and to correct inconsistencies in the English and the French text and other various errors as requested by the SJCSR. For example, the SJCSR noted a formatting error in the English text in Schedule V in the Hazardous Products (Toys) Regulations. Subsection 7(2) in Schedule V was expressed as 7.2 and will be amended to read 7(2) to be consistent with current drafting requirements.

Prescription of prohibited Items: New regulations

1. Candles Regulations

These Regulations will be made from Item 29 of Part I of Schedule I to the HPA which will continue to prohibit spontaneously reigniting candles (i.e. joke relight candles).

2. Children’s Jewellery Regulations

These Regulations will be made from Item 42 of Part I of Schedule I to the HPA and will continue to limit the amount of lead permitted in children’s jewellery to 600 mg/kg total lead and 90 mg/kg of migratable lead.

3. Face Protectors for Ice Hockey and Box Lacrosse Players Regulations

These Regulations will be made from Item 20 of Part I of Schedule I to the HPA. These Regulations will continue to reference the Canadian Standards Association standard.

4. Ice Hockey Helmet Regulations

These Regulations will be made from Item 19 of Part I of Schedule I to the HPA. These Regulations will continue to reference the Canadian Standards Association standard.

5. Textile Flammability Regulations

These Regulations will be made from Items 4 and 13 of Part I of Schedule I to the HPA in order to continue regulating the flammability of general textiles (e.g. curtains) and bedding under the CCPSA.

Continuation of requirements and prohibitions respecting restricted Items: Amended regulations

1. Asbestos Products Regulations (APR)

In section 3 of the APR, the following non-crocidolite asbestos products are prohibited:

  • a product for use in modelling or sculpture;
  • a product for use in simulating ashes or embers; and
  • a product that is composed entirely of asbestos.

If the APR were transferred without amendments to make them consistent with the new CCPSA regime, the above three non-crocidolite asbestos products would no longer be prohibited.

Section 4 of the APR authorizes the use of certain crocidolite asbestos products such as torque converters and asbestos cement pipes; however, all of the requirements set out in section 4 of the Regulations must be met in order for a person to advertise, sell or import these particular crocidolite asbestos products. Any crocidolite asbestos product which is not listed in section 4 of the Regulations shall not be advertised, sold, or imported.

If the APR were transferred without amendments to make them consistent with the new CCPSA regime, the advertisement, sale and importation of any crocidolite asbestos product not set out in section 4 of the APR would be permitted.

These problems will be addressed by replacing section 2 and amending sections 3 and 4 of the APR.

In addition, the Regulations will be amended to improve clarity and to correct inconsistencies in the English and the French text and other various errors as requested by the SJCSR. For example, the SJCSR noted that the font of the subheading before section 4 in the French text was abnormally large in comparison with the rest of the Regulations and the English version of this subheading in particular.

2. Consumer Chemicals and Containers Regulations, 2001 (CCCR, 2001)

The wording of these Regulations will be amended to maintain the same prohibitions of chemical products and containers when moving from the HPA to the CCPSA. To maintain the prohibitions, section 2 will be replaced, section 38 will be re-introduced, and sections 45 and 53 will be replaced.

Regulatory and non-regulatory options considered

1. Non-regulatory option: Rely on paragraph 44(g) of the Interpretation Act to transfer existing Regulations without amendments from the HPA to the CCPSA.

All existing Regulations under the HPA would have been directly transferred without amendments to the CCPSA via paragraph 44(g) of the Interpretation Act; however, two regulations (APR and CCCR, 2001) would have been transferred to the new legislation with regulatory gaps due to differences in how the CCPSA and HPA are structured.

In addition, many prohibited items in Part I of Schedule I to the HPA would not have been transferred to the CCPSA unless they were consolidated into the existing Regulations or prescribed in new Regulations.

Regulations are necessary to avoid regulatory gaps which would have led to less protection for Canadian consumers. The resulting regulatory gaps may be addressed by reliance on the general prohibition of the CCPSA (section 7); however, this would likely be cumbersome to implement and would provide less certainty than would the amended and new Regulations.

2. Regulatory option: Amend and makeregulations

Three regulations currently under the HPA need to be amended, three regulations need to be repealed and replaced, and five new regulations need to be made to ensure that the Canadian public continues to benefit from the protection afforded by the regulation of certain consumer products once the CCPSA is in force and Part I and Schedule I to the HPA are repealed.

Benefits and costs

These regulations are required to ensure that the health and safety benefits afforded by certain regulations and prohibitions under the HPA will continue, uninterrupted, under the CCPSA. Given that the regulations simply ensure continuity between Acts, a cost-benefit analysis was not undertaken. Also, there are no costs associated with addressing the recommendations of the SJCSR.

As a result of these regulatory activities, there are no impacts on the safety of Canadians and no economic or trade impacts. The Department undertook these regulatory activities to ensure that the safety and protection of the Canadian public is maintained.

Rationale

Health Canada implemented Option 2 for the following reasons:

  • There are no changes in regulatory requirements for industry;
  • Safety to the Canadian public is maintained; and
  • There are no economic or trade impacts.

Not completing this regulatory initiative would have provided less protection to the Canadian public and less certainty than would the amended and new regulations. This might have resulted in criticism for not addressing the aforementioned regulatory gaps.

Consultation

An information document explaining the process of the overall transfer of certain prohibitions and regulations from the HPA to the CCPSA was posted on the Health Canada website on July 14, 2010 (http://www.hc-sc.gc.ca/cps-spc/legislation/acts-lois/ccpsa-lcspc/prohibitions-interdictions-eng.php).

Implementation, enforcement and service standards

The amended and new regulations will come into force when the CCPSA comes into force. These regulations will be enforced under the provisions of the CCPSA, along with all other HPA regulations that will be transferred without amendments by virtue of the Interpretation Act.

Contact

James Hardy
Project Officer
Consumer Product Safety Directorate
Healthy Environments and Consumer Safety Branch
Department of Health
MacDonald Building, 4th Floor
123 Slater Street
Address Locator: 3504D
Ottawa, Ontario
K1A 0K9
Fax: 613-952-9138
Email: James.Hardy@hc-sc.gc.ca

Footnote a
S.C. 2010, c. 21

Footnote 1
SOR/2005-109

Footnote 2
Parts II and III of the HPA will not be repealed when the CCPSA comes into force. Parts II and III of the HPA will still be in effect as they deal with the Workplace Hazardous Materials Information System.