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Summary of the Products Discussion Group, nov 17, 2003 |
Participants:
Helen Doyle, York Region PH & OPHA Env Health Workgroup
Louise Aubin, Peel Region PH & OPHA Env Health Workgroup
Kim Perrotta, OPHA Air Quality & OPHA Env Health Workgroup
Ida Hersi, Toronto PH, Injury Prevention
Annette Collins, Toronto PH, Injury Prevention
Rita Mezei, Safe Kids Canada, Public Policy & Advocacy Specialist)
Product Issues of Concern to Participants
General Comments
It was clarified that the Act will incorporate Part I Schedule I of the existing Hazardous Products Act which includes two parts - one for banned products such as lawn darts, UFFI, children's sleepwear up to 14x without flame retardant and one for restricted products which include products such as cribs and cradles, carbonated beverage glass containers, carpets, glazed ceramics and glassware, pacifiers and infant feed nipples, etc. Schedule II and III of the Hazardous Product Act is not is not under review during this process but will be brought in line with the proposed Canada Health Protection Act at time of enactment.
Concerns
The following areas of concern were identified:
Indoor air quality impacts related to products such as furniture, rugs, plastic components, flooring off-gassing contaminants such as formaldehyde, pthalates, and polybrominated diphenyl ethers (PBDEs) Outdoor air quality impacts related to landfilling of consumer products containing substances such as mercury Health concerns related to chemical exposures related to the direct use of consumer products such as cups (eg. Lead glazes), jewelry (eg. Lead), baby soothers (eg. phthalates) and indirect use of consumer products such as PVC blinds (eg. Lead dust) Safety concerns presented to children by consumer products intended for children such as playground equipment, bike helmets, clothing, cribs and toys, and by consumer products children come into contact with but as such are not intended for direct use by children such as window blinds with cords, sides of stoves/ovens, etc.
Note: This group decided that it would not address issues associated with health products and drugs.
There is deep concern about the fact that this Act appears to open the door for the adoption of "standards" developed by industry representatives. There is the view that what is missing from the existing system is not legislative authority as much the resources to properly administer and enforce the existing legislation. There is deep concern that the Privy Council has recently defined the "precautionary principle" in a way that indicates the "economic interests" must be considered
Specific Recommendations
There is the view that the phrase "undue risk" should not be used in the General Safety Requirement and that when "risk" in used in the Act, it should be clearly connected to the concept of the precautionary principle both within risk assessment and risk management.
Questions Raised
How does the proposed Act interface with NAFTA and other trade regulations?
The report, "Risk First, Safety Last", prepared by the Canadian Health Coalition was discussed. The Coalition:
Is arguing that the existing Acts should not be revised because they will only be "gutted" to pave the way for the development of genetically modified foods; Believes that the General Safety Requirement weakens the provisions that currently exist in the Food and Drug Act; Is very worried about what the introduction of "undue risk" to the Act will mean and notes that that phrase is not used in existing Acts; Is very worried that the new Act relieves Health Canada of ultimate responsibility for ensuring the safety of Canadians.
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General Safety Requirement (GSR)
General Comments
The group agrees with the concept of incorporating a general safety requirement to capture products not specifically covered by current regulations. If properly written to include general hazard areas for children (e.g. finger entrapment) it may be a better fit with today's marketplace than the current regulations under the Hazardous Products Act (HPA) that not designed to keep up with technology and product development. For example:
The eye pull test was designed for plush toys with eyes affixed using simple screws and/or nails. Today practically all plush toys far exceed this test requirement as eyes are affixed in a more secure manor. Ultimately, this test is no longer required because manufacturers have addressed the product defect assessed by this test. Newer style strollers (e.g. jogging strollers, bike trailers) require different types of testing that is not covered under current regulations. As well, often these products cross regulations making is confusing as to what set of regulations the product should meet.
Concerns
That the GSR will be used as an excuse to not develop new regulations which provide greater protection to public health. That existing regulations will be displaced by the GSR - instead they should be maintained and a concerted effort made to update them.
Specific Recommendations
The GSR should not incorporate the phrase "undue risk". It should be more clearly linked to the "protection of health and safety" and associated with "due diligence" (definition according to Merriam-Webster - "the care that a reasonable person exercises under the circumstances to avoid harm to other persons or their property"). Any discussion of "risk" should be clearly linked to and defined by the precautionary principle. There is a need to expand "pre-market" and "post-market" testing to products which:
Have the potential to impact on the safety or health of children (using a specific ISO standard for this assessment - Rita knows the ISO#); May present a risk to human health or the environment, at some point in the product life, because they are made with, or release, contaminants that can be toxic to human health or disruptive to the environment.
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B8: Pre-Market and Post-Market Review Process for Products & Transparency
General Comments
This section is very confusing because at one point (S.B8.1), it is indicated that the entire section applies to all products covered by the Act, but in other subsections, the phrase "health products" is used (eg. S.B8.7). So, it is not clear what aspects of the pre-market and post-market review processes are expected to apply to products other than health products. This needs to be clarified.
Specific Recommendations
Current product testing levels and rationales (e.g. cyclical testing, consumer complaint, product safety inspector recommendation, by manufacturer request) are inadequate. We feel strongly that we would like to see pre- and post-market review processes apply to a number of products that are not health products.
For example, post-market reviews should be conducted on certain products where anecdotal evidence has been raised about injuries to children (i.e. yo yo balls) or where new scientific evidence demonstrates that people are being exposed to chemicals such as formaldehyde in indoor environments at levels 10 times those considered "tolerable". Pre-market testing for safety hazards for children should be applied to all consumer products, not just to those designed specifically for use with or by children. Pre-market testing should apply to all products that contain chemicals deemed CEPA toxic
Under section B8.6 "options for openness":
People feel very strongly that the approval and review process should be open to public scrutiny and public participation. While people like the idea of summaries prepared by manufacturers and Health Canada being made available to the public, we feel that they should go further; that raw data should be made available to those who want to scrutinize. While people appreciate the need to establish "independent committees" at times to assist with decision-making, they feel that these committees need to be truly independent (see Committees below). People support the concept of providing the public with opportunities to offer comments on products when they are being approved or reviewed; and suggested Ontario's EBR process to be example of one such process. People feel strongly that Health Canada should have to actively consult people at product decisions points; and indicated that the Ontario Ministry of the Environment's EBR process may be too passive.
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Product Categorization
Concerns
There is concern about representation and objectivity of committees that are struck to categorize products. If committees are struck to categorize products, they must be equitable in their representation, properly resourced to ensure equitable representation, and free of corporate bias (ie. Industry reps should be consulted, but not in a position to dictate how they are regulated). We are worried about Health Canada adopting standards for products that have been developed by organizations that are dominated by the industries being regulated (i.e. CSA standards), without proper critical review of such standards.
Specific Recommendations
People feel that the needs of children need to be addressed when products are categorized and/or regulated. More than half the products regulated under the existing Hazardous Products Act are those that are used with or by children. This comment reflects the fact that children rely on others to make decisions about what products to use and how to use, whether or not the manufacturer's instructions are adhered to. There is an urgent need for more testing, approving and oversight of products before they are introduced to the market place.
Note: One group member attended a presentation by the Canadian Standards Association and learned the following: that CSA standards are updated regularly and are responsive to technological advances (heavy industry input); that changes to existing standards and creation of new standards are apparently consensus based (not sure who is involved in this); that the proposed health protection legislation and the GSR will allow standards to have a more influential role in products moving forward and that standard development is an open process with representation from industry, the public and other stakeholders.
Questions Raised
It is not clear from the proposal what products, or classes of products, will be subject to approvals.
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Commercial Information
General Comments
People have the "right to know" if they are being exposed to potentially toxic chemicals when they buy consumer products. The burden of proof with respect to safety should lie with industry / manufacturers, and not with consumers or Health Canada.
Specific Recommendations
The onus should be on industry to fully disclose information about their products (ie. Ingredients, safety test results, efficacy results) on labels for consumers, on material safety data sheets (MSDS) for workers, and in information submitted to Health Canada for approval purposes. The onus should be on manufacturers to demonstrate that they will be financially harmed by the release of information (similar to the onus required under WHMIS) rather than on Health Canada or consumers to demonstrate the need for the information.
Example: The oil companies would not allow Environment Canada to release information about the sulphur levels in their gasoline products to the public even though their competitors had the technology to test one another's sulphur levels and sulphur levels contribute to poor air qualitywhich harms human health. The information was only released to the public after Friends of the Earth fought a legal battle to have the information released.
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Health Surveillance
General Comments
Overall the direction of the proposal is supported.
Specific Recommendations
There is an urgent need for population-based information on health conditions such as asthma and learning disabilities, and for product-based health and safety information. There is also the need for mandatory reporting by manufacturers to Health Canada of "adverse incidents" associated with their products. This would enable Health Canada and the public to understand the scope of a problem. A requirement similar to that in the United States under the Consumer Product Safety Commission should be included in the proposed Act. "Manufacturers, distributors, and retailers are required to report to CPSC under Section 15 (b) of the Consumer Product Safety Act (CPSA) within 24 hours of obtaining information which reasonably supports the conclusion that a product does not comply with a safety rule issued under the CPSA, or contains a defect which could create a substantial risk of injury to the public or presents an unreasonable risk of serious injury or death, 15 U.S.C. § 2064(b)." (from the CPSC website downloaded November 19, 2003 (www.cpsc.gov)). There is also the need for collection of exposure-based information related to various chemicals and substances such as mercury in tuna fish, pesticides on crops, and dioxins in all food products.
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Administration & Enforcement
General Comments
We support the direction of the proposal; we want to see steeper fines, more enforcement, and more power given to Health Canada especially in the area of issues product recalls, rather than relying on the manufacturer/distributer/importer to voluntarily recall the product as is currently the case. However, we also believe that more power will not be useful if Health Canada is not given the resources to properly administer and enforce the legislation.
Specific Recommendations
The Act should more explicitly capture products to be "resold".
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Committees
General Comments
The need to at times establish independent committees is appreciated, however there must be measures in place to ensure that such committees are in fact independent.
Specific Recommendations
These independent committees:
Need to be truly independent (i.e. that representatives with a direct stake in the decision should not be on those committees); Representation on them should be equitable (i.e. industry representation should be balanced with representation by public health/consumer representation), and Resources need to be provided to ensure that representation is equitable (i.e. often public health and consumer groups are not equitably represented because their organizations do not have the resources to properly participate.)
Example: The model of the Ontario Advisory Committee of Environmental Standards (ACES) was suggested as a model that seemed to work well: Experts were selected from a variety of different sectors (academic, industry, labour, legal); public consultation was conducted, public reports were prepared by this group for the Minister of Environment; a stipend was provided to each committee member for days directed at the Committee's work; and staff were provided to organize and support the Committee's work.
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