Combating Counterfeit Products Act

An Act to amend the Copyright Act and the Trade-marks Act and to make consequential amendments to other Acts

This bill was last introduced in the 41st Parliament, 1st Session, which ended in September 2013.

Sponsor

Christian Paradis  Conservative

Status

In committee (House), as of June 12, 2013
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Copyright Act and the Trade-marks Act to add new civil and criminal remedies and new border measures in both Acts, in order to strengthen the enforcement of copyright and trade-mark rights and to curtail commercial activity involving infringing copies and counterfeit trade-marked goods. More specifically, the enactment
(a) creates new civil causes of action with respect to activities that sustain commercial activity in infringing copies and counterfeit trade-marked goods;
(b) creates new criminal offences for trade-mark counterfeiting that are analogous to existing offences in the Copyright Act;
(c) creates new criminal offences prohibiting the possession or export of infringing copies or counterfeit trade-marked goods, packaging or labels;
(d) enacts new border enforcement measures enabling customs officers to detain goods that they suspect infringe copyright or trade-mark rights and allowing them to share information relating to the detained goods with rights owners who have filed a request for assistance, in order to give the rights owners a reasonable opportunity to pursue a remedy in court;
(e) exempts the importation and exportation of copies and goods by an individual for their personal use from the application of the border measures; and
(f) adds the offences set out in the Copyright Act and the Trade-marks Act to the list of offences set out in the Criminal Code for the investigation of which police may seek judicial authorization to use a wiretap.
The enactment also amends the Trade-marks Act to, among other things, expand the scope of what can be registered as a trade-mark, allow the Registrar of Trade-marks to correct errors that appear in the trade-mark register, and streamline and modernize the trade-mark application and opposition process.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.

Votes

June 12, 2013 Passed That, in relation to Bill C-56, An Act to amend the Copyright Act and the Trade-marks Act and to make consequential amendments to other Acts, not more than one further sitting day shall be allotted to the consideration at second reading stage of the Bill; and that, 15 minutes before the expiry of the time provided for Government Orders on the day allotted to the consideration at second reading stage of the said Bill, any proceedings before the House shall be interrupted, if required for the purpose of this Order, and, in turn, every question necessary for the disposal of the said stage of the Bill shall be put forthwith and successively, without further debate or amendment.

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8 p.m.
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Liberal

Frank Valeriote Liberal Guelph, ON

Mr. Speaker, not too long ago, when the government was a minority government, it often received and accepted reasoned amendments. I am reading an article that states that the current Minister of Citizenship, Immigration and Multiculturalism accepted reasoned amendments proposed by the then Liberal critic for citizenship and immigration, Maurizio Bevilacqua, but somehow that does not happen anymore.

I listened to the member for Don Valley West, who was here when the member for Halifax West gave his remarks. He offered what I think were some very reasoned and sound amendments, and he, I and the member for Timmins—James Bay expressed concern about the government's absolute unwillingness and, frankly, inability to accept reasoned amendments.

Would you tell me, sir, through the Speaker, that you will entertain these amendments, or are you telling us that this bill is absolutely perfect in its current form?

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8 p.m.
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NDP

The Deputy Speaker NDP Joe Comartin

I would ask members to direct their comments through the Chair.

The hon. member for Don Valley West.

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8 p.m.
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Conservative

John Carmichael Conservative Don Valley West, ON

Mr. Speaker, I heard the comments made by the hon. member for Halifax West, and clearly transshipment and education were critical elements of his concerns.

I would like to state that the Standing Committee on Industry, Science and Technology is a committee that, from my perspective as a relatively new member, works very well. It is a committee that respects the opinions of those on opposite sides and works in a more harmonious environment in order to achieve positive results.

I would say that when we get to committee with this bill, we will have a good opportunity to address these issues, and I think that reasonable amendments with reasonable discussion will be well considered.

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8 p.m.
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Calgary Southeast Alberta

Conservative

Jason Kenney ConservativeMinister of Citizenship

Mr. Speaker, I have heard a number of NDP members in debate on this bill suggest that the government has cut 850 positions from the Canada Border Services Agency. I would prefer to believe that this is being said out of ignorance rather than mendacity, because it is reflective of what I will call a misunderstanding that is often amplified by the NDP.

New Democrats should understand that in collective bargaining agreements, for every one position that is actually being removed, typically three people are “affected”; that is to say, they are given notice or an option to find employment elsewhere.

This is a management technique that is used to ensure minimal impact on individuals. At the end of the day—if the member would just listen to me, as I am making a reasonable point—of the 850 people affected or notified, typically 250 to 300 positions would actually be taken away.

I wonder if the member would agree with me that even after those 250 to 300 positions in CBSA are removed, with the 900 additional CBSA officers hired by this government, there is in fact a net enormous increase in the manpower of CBSA.

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8 p.m.
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Conservative

John Carmichael Conservative Don Valley West, ON

Mr. Speaker, that is a very reasonable and good point. We are still dealing with a net gain of CBSA officers at the borders.

Let me reiterate a couple of things about this bill and all that it would accomplish.

It is going to give border officers the authority to detain suspected commercial shipments and to contact the rights holders. It is going to allow Canadian businesses to file a request for assistance with the Canadian Border Services Agency, in turn enabling border officers to share information with rights holders regarding suspected shipments. We are going to have well-trained CBSA officers working within the force that exists today, clearly very capable and able to achieve the objectives of this bill.

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8:05 p.m.
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NDP

Charlie Angus NDP Timmins—James Bay, ON

Mr. Speaker, it is always fun to watch Conservatives try to do math. If we look at the border services, in the government's own planning and priorities, it is cutting $143 million. However, the Conservatives think they will create all these fictitious new roles.

The issue we have heard from rights holders all along—

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8:05 p.m.
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Conservative

Jason Kenney Conservative Calgary Southeast, AB

No, there are no fictitious new roles. It's 300 positions.

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8:05 p.m.
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NDP

Charlie Angus NDP Timmins—James Bay, ON

Boy, he is a cranky little man over there, Mr. Speaker.

We are talking about the cut of $143 million. I would like to ask my hon. colleague a question. When I talk to rights holders, they say there are all kinds of knock-off goods sitting at the mall and when they call the police, the police tell them to deal with it themselves.

We are being told that they are going to get special training. We do not see anything in the budget for special training. They are going to have to decide what the difference is between an exception under the Copyright Act and what is a bootleg product.

With $143 million in cuts to border protection, what is that going to do? They also have to deal with drugs, guns and counterfeit goods coming across the border.

We can have all the fiction and talking points from the little guys in the PMO who are coming over, but these are the cuts that they are being faced with on the front lines.

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8:05 p.m.
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Conservative

John Carmichael Conservative Don Valley West, ON

Mr. Speaker, it is my understanding, from what I have heard, that the agency will be able to work well within its revised budgets and will meet the needs of the bill as presented.

Let us just recall that, as my hon. colleague mentioned, when he talks about shipments being left in parking lots and people calling the police and all of those things, this is old news. This bill was just newly presented. It will fill gaps that we need filled. The bill will in fact meet the demand of supporting business and commerce in the country in a way that we have not seen before.

I fully encourage my friends opposite to join me in supporting this bill. Let us see what happens in committee.

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8:05 p.m.
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NDP

Charlie Angus NDP Timmins—James Bay, ON

Mr. Speaker, as always, it is an extreme honour to rise in this great House representing the people of Timmins—James Bay and to speak of their concerns.

I am pleased to speak tonight to this bill dealing with counterfeit goods. This is the kind of work we really need to do in Parliament.

The issue of the threat of counterfeit and bootlegged goods is major for economic innovation. It is certainly a question of intellectual development of technologies, such as those in the mining sector.

People in my region were concerned about Falconbridge, the great former Canadian company that was taken over under the Conservative government's watch. People were concerned at the time that it would be taken over by a foreign state-owned enterprise. They were concerned about the intellectual property. Falconbridge had made exceedingly progressive development with respect to ore bodies. These are issues of other interests taking over the intellectual property and undermining Canadian innovation.

We have to deal with the issues of knock-offs, counterfeit goods and unsafe products that are coming in at the border.

We have to put what we are actually talking about in context. We are talking about copyright and trademarks. We are talking about bootlegged items. We are also talking about generic goods and competition.

It is important that we are able to differentiate between the criminal knock-off elements and bootlegged products. Certain rights holders will claim counterfeit or copyright infringement because they feel it is a threat to their economic business model.

One of the fascinating things about innovation is that today's corporate best citizens were yesterday's pirates. Probably the best example of the most militant when it comes to taking on piracy is Hollywood and the Motion Picture Association of America. It lobbies strongly in the United States and the United States is more than willing to twist the arms of any of its allies around the world if they are seen as being a threat to Hollywood.

The market did not go out to California because the weather was nice. The market was in the east. Hollywood was set up because it was beyond the jurisdiction of the Thomas Edison corporation, which had the copyright on motion picture cameras. The market went out to Los Angeles because it was basically a free country there. It was outlaw country. Hollywood was set up outside the jurisdiction so the Thomas Edison corporation could not get them on stealing intellectual property and Hollywood developed. It is an interesting story.

John Philip Sousa tried to stop the development of the roller piano because it was seen as a threat to the livelihood of live musicians. We do not have roller pianos anymore. The American Music Publishers Association denounced the development of the gramophone because it undermined the need for roller pianos.

The pirates who were taking away from live musicians were then threatened by the development of the record player. People only had to buy the record player. They did not have to worry about the copyright that was being paid to the publishers.

Then radio came along. The record industry went after the radio industry because it believed the radio industry was stealing its intellectual property, which was in fact quite accurate. Between 1928 and 1931, the sale of recorded music dropped by 90% in the United States. Part of that drop was a result of the depression, but the other reason was the technological threat posed to the music industry, which was faced with two options at that time. The first option was to try to shut down the commercial use of radio. The other option was to remunerate the artists for what was being played on the air. The record industry rebounded.

FM radio was invented in the 1930s. It was certainly much superior to AM radio. For about 40 years congress did not push for the development of FM radio because RCA had bought up all the licences for AM stations. FM radio was seen as a threat to RCA's business model.

I am not in any way diminishing the issue of counterfeit goods. What I am talking about is the complexity of the issue that is going to face our people at the border. I am very glad we are going to have laws that deal with this because it is where the shipments are coming across.

However, we are asking our border guards to differentiate at times between very complex issues and sometimes there are competing interests. For example, we had a landmark case in the United States under the DMCA, the Digital Millennium Copyright Act, between two garage door opener companies. I think it was Chamberlain Group, Inc. that had invented a garage door opener. If people lost their garage door openers, they were stuck and had to buy a whole new system. Then Skylight Technologies, Inc. came along and said that it would make a generic garage door opener. That was considered a bootleg product and it went through the United States court system.

It is interesting. The U.S. has very heavy protections for intellectual property. However, if we look at what the U.S. courts have ruled on intellectual property, very similar to Canada, France and Europe, it is the balancing act between innovation and sometimes things that are seen as economic threats and actual economic innovation.

In Bonita Boats, Inc. v. Thunder Craft Boats, Inc., there was a unanimous court decision by Justice O'Connor, who said:

From their inception, the federal patent laws have embodied a careful balance between the need to promote innovation and the recognition that imitation and refinement through imitation are both necessary to invention itself and the very lifeblood of a competitive economy

Two years later, Justice O'Connor repeated similar views in the Feist Publications, Inc. v. Rural Telephone Service Co. He said:

It may seem unfair that much of the fruit of the compiler's labor may be used by others without compensation. As Justice Brennan has correctly observed this is not “some unforeseen byproduct of a statutory scheme”.... It is, rather, “the essence of copyright”...

What we are hearing might seem somewhat contradictory, in that copyright is not just a protection to the creator, but it is also a limitation on the rights of the creator to say that an innovative economy is going to develop through imitation.

This goes back to the beginning, in 1841, when Lord Macaulay, during the copyright debates, referred to the people trying to bring laws in as the “knaves who take the bread out of the mouths of deserving men”. People were actually ripping off the books and selling them cheaply on the streets of London, because it was the book wars at that time.

Lord Macaulay also said that it was important they would not just create monopoly rights for a small clique of book owners because the development of the English identity would not be possible unless they opened up the market, that they had to create enough of a space to allow the innovation and the proper remuneration to the creators, but they could not create a simple monopoly right that would limit future competitors, today's pirates who are coming in and wanting to get into the market.

I am using the word “pirate” in the sense that we are defending the people who are dealing in bootleg products and bringing in unsafe products.

What I am talking about is the need for us to also recognize that when we have trademark and counterfeit and copyright protection, we will have conflicts that go through the courts between some of the upstarts and some of the big players. It is not in the interests of the big players to ever have competition. We have to ensure that happens. Therefore, when we look at our laws, we want to ensure they happen in a form we can differentiate.

I mention this again because a lot of this will be dealt with at the border where there will be a lot of judgment calls being made. It certainly is important that we give our border officials the ability to seize the goods at the border that need to be seized.

It is funny. When I look at the government's record on standing on intellectual property, it has been a little less than competent. We have a number of examples.

In December 2006, the famous member for Beauce met with the U.S. ambassador, David Wilkins, according to what came out in the WikiLeaks documents. He promised him that our copyright legislation would be just in line with the United States and even promised to show the legislation to U.S. officials before it was brought to Parliament. That would have been an extremely terrible breach of the privilege of the members of the House.

Fortunately, the member for Beauce never got the chance because he went and lost other documents at his girlfriend's house, and so he went back to the backbenches. That little incident did not happen.

We are being told that we need this legislation because of the U.S. 301 watch list. This watch list is a special trade list for countries that are far beyond the norm—the outliers. The countries that are on the 301 watch list are like Yemen and North Korea. They are the countries that the U.S. trade officials say are beyond the laws of intellectual property. They are countries where bootleg products and corrupt practices are the norm.

In April 2009, the special assistant to the now President of the Treasury Board, Zoe Addington, the director of policy for the minister, met with the U.S. trade officials. Again, this comes to us thanks to WikiLeaks, “In contrast to the messages from other Canadian officials, she said that if Canada is elevated to the Special 301 Priority Watch List (PWL), it would not hamper — and might even help — the [Government of Canada's] ability to enact copyright legislation.”

This is staggering. The right hand of one of the key ministers of the government tells American officials to put us on the most notorious watch list as though none of the intellectual property standards in this country were legitimate at all and that we are a complete outlier.

What does that do for Canada's international trade reputation? Here is a government that promotes trade to Canadians in the House. Although the Conservatives do not have much to show for it, they are always promoting their trade agenda. Yet, they go to our number one trading partner and beg them to put us on an international watch list as an outlier country. Can members guess what happened? A couple of weeks later, Canada was added to the 301 watch list as a country that could not be trusted because of its abuse of intellectual property.

Now, we did not hear a peep from government members standing up for the Canadian industries that are actually trying to work in the United States and Europe. They did not defend the fact that we did have intellectual property rights and that we did respect intellectual property. No, the Conservative government was promoting us as an outlier.

However, it was interesting when the Computer and Communications Industry Association, which represents the biggest intellectual property groups in the United States, such as the Googles and Yahoos, went before the United States trade representative to give a special hearing and spoke up for Canada. There was no Canadian representation there, but we had the Computer and Communications Industry Association saying that the very legitimacy of the U.S. 301 watch list was obviously being put in question by the dubious plan to have Canada listed as an international outlier. They said that the attempt to use trade policy to force through domestic policy was fundamentally flawed.

This is what we have seen again and again with the Conservative government.

However, continuing on with intellectual protection, do members remember the famous iPod press conference? The present Minister of Canadian Heritage and Official Languages and the President of the Treasury Board, the one who was begging the United States to damage our trade reputation, stood at a mall tilting at windmills. It was like they were Don Quixote and Sancho Panza, raising their fists for consumers, saying that they would stop that dreaded NDP $75 iPod tax. I think they meant the $21-billion NDP iPod tax or whatever it was, but they would never allow this iPod tax. This was a job-killing iPod tax. They stood out there like two ridiculous figures doing this dance while people at the mall were wondering what they were talking about.

They were talking about Canada's long-standing levy on blank cassettes and CDs, which was seen as a model around the world for allowing some manner of remuneration to artists for the massive amount of copying that was going on. This was actually considered an extremely progressive step.

I met with the Copyright Board and found out what it was looking at. There was no such thing as a $75 job-killing NDP iPod and carbon tax. No, it was talking about a $3 levy on a $200 iPod that would have gone into a fund for artists because we know that there is all manner of copying going on.

That fund, according to the Copyright Board, would have created a $35-million fund for the artists to continue their work. We see how the entertainment industry in Canada and North America has been devastated by the development of digital culture. This is not against digital culture, but the market has not been able to recover. We need new models to re-establish the incredible arts community, but we had these two ministers doing a song and dance of deceit over this $75 tax, they were calling it. At the time, nobody believed it.

The Edmonton Journal said that the New Democratic Party's position on the levy was “perfectly reasonable”, and that the Minister of Industry misrepresented its content and that the NDP's position was thoughtful and it upheld basic Canadian values. The National Post said, “The government's nonsensical, 'Boo! Hiss! No new taxes!' response…is just dumb”.

Of course, we did not know just how dumb it was when it turned around and, wait for it, what did it put on the iPod? It put on a tax. It put its own iPod tax on, so boo hiss dumb. How dumb can the Conservatives get if they get their two key ministers to stand out there and do a ridiculous song and dance to defend consumers while they are undermining the rights of artists and taking $35 million out of the recording industry that is promoting Canadian entertainment, and then turn around and put an iPod tax on.

The government has failed in some key areas of intellectual property. I am glad to see that we are going forward right now and dealing with the issue of counterfeit. I hope that the Conservatives will actually be able to see through some of the problems in terms of ensuring that we have the resources.

I would like to follow up on my colleague from Skeena—Bulkley Valley, who asked a very straightforward question. If the Conservatives are cutting $143 million from border security, how will they be able to deal with the counterfeit and bootleg products that come in? I talk to rights holders and they tell me that when they go to a mall in Toronto and see piles of bootleg DVDs and CDs, who do they call? The RCMP? They do not have the resources. The Toronto police will not do anything, so what it creates instead is a culture where the rights holder is forced to go to litigation.

If it is a big player, it can go to litigation, but if it is a small player, it is very difficult. If the player cannot stop the product, if it is not going to seize the product, but can go to litigation, it is a recipe that puts rights holders continually at a disadvantage.

I would like to think that within this House we could work on a bill that would ensure that there are other resources to seize the products that need to be seized, but that we are not getting caught up in battles between rights holders as to what is legitimate and what is generic. We have also seen in Europe where medicines have been seized. It was claimed they were counterfeit when they were not counterfeit; they were generic. These are important things because they have actually become part of trade disputes, and our front-line officers will have to deal with it.

That being said, in the New Democratic Party, we want action on the bootleg goods that are threatening not just the health and safety, but the innovation of our economy. It will be the balance. Going back through copyright and trademark infringement laws across the world could be issues that we need to have balanced. Fortunately, we see the word “balance” in the dictionary. If we were looking up antonyms we might see the Conservative Party of Canada.

What we need to have here is, out of the work of all the committee members in this chamber, to ensure that we have the right balance and then we have the resources and the tools. If we say we will be serious about dealing with the counterfeit and bootleg products that are undermining our economy, then the police and the appropriate authorities would have the power to deal with this as it comes through.

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8:25 p.m.
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Calgary Southeast Alberta

Conservative

Jason Kenney ConservativeMinister of Citizenship

Mr. Speaker, I appreciate the member's comments on this very important issue and the substance of it. Just returning to his last point, which has been raised before, it is a legitimate question as to whether or not the CBSA, the responsible agency, has adequate enforcement resources to interdict counterfeit goods. It is an important question.

What I was simply trying to put on the record before is the full factual picture rather than a torque and spin picture about CBSA resources, which represented a budget of $1.06 billion in 2005 and in 2012 had grown by 27% to a budget of $1.835 billion. Therefore, even after the economies that the member has mentioned, which are real, after reductions there will still be a net increase in the budget of CBSA of about $260 million since 2005, since this government took office. That is a net real and absolute increase in fiscal resources, about a 26% increase in the number of full-time equivalents at the CBSA.

There will be a reduction. I am trying to confirm the number. I think it is in the range of about 300 actual positions, but that will still mean a net increase over 2005 of about 600 full-time equivalent positions at the CBSA.

The member raises some very legitimate points. I am just trying to ensure that the debate on the question of resources is based on fact and not spin.

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8:25 p.m.
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NDP

Charlie Angus NDP Timmins—James Bay, ON

Mr. Speaker, I appreciate hearing from my hon. colleague and I certainly appreciate hearing his numbers. Unfortunately, whenever we talk to anybody dealing with the border what we are seeing are the cuts. The fact is we have more and more issues with trade at Canada's border, particularly between the U.S. and Canada, and the number of vehicles coming over. Therefore, when we are looking at $143 million cut, we are talking about front-line workers. That issue has been raised again and again. We are not just talking about counterfeiting; we are talking about guns.

The former mayor of Toronto, not the one who is hanging out in Rexdale all the time but the one who was involved with American counterparts about the gun trade, talked again and again about the rise of gun violence in Toronto being from the products that have been brought in across the border because they are not being examined.

I appreciate my hon. colleague. Regardless of parties, we all have a stake in dealing with the counterfeit culture at the border. We also have a stake in dealing with the criminal activity that happens there and we need to make sure that the CBSA has the necessary resources.

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8:30 p.m.
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NDP

Alexandre Boulerice NDP Rosemont—La Petite-Patrie, QC

Mr. Speaker, I would like to congratulate my colleague from Timmins—James Bay for his speech, in which he raised several key points. Since this debate seems to be focused on numbers, I want to ask him a question about the Conservative's double-talk. They are so adept at speaking out of both sides of their mouths, they are starting to look like the Liberals.

On the one hand, the Conservatives announced budget cuts that will save the government $4 billion in order to balance the budget. On the other hand, every time we ask the Conservatives a question about the impact of these cuts on jobs, we get answers like the one given by the Minister of Citizenship, Immigration and Multiculturalism, who said that these were not cuts; in fact there would be an increase, a net increase.

If the government is spending more money and hiring more people, why did it say it had to tighten its belt to eliminate the deficit? I wish someone would explain this.

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8:30 p.m.
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NDP

Charlie Angus NDP Timmins—James Bay, ON

Mr. Speaker, what my hon. colleague is seeing is typical right-wing economics. The Conservatives are the same people who rack up the deficits. They rack up the outrageous spending. They have magic numbers that will bring it all back down. They rationalize and find savings. I think their great line in the last number of years is that they will stop the gravy train. I am sure when they put Rob Ford and his brother into the Senate they will be able to help us stop the gravy train in the Senate, but it is the same set of magic numbers that they are always dealing with. I think they said in Toronto they found $1 billion worth of savings. It is a similar kind of math that I am hearing from the government on a weekly basis. Therefore, I certainly think the Fords are well-equipped to come into the Senate with the Conservatives. They have the same kind of mathematical skills.

Combating Counterfeit Products ActGovernment Orders

June 12th, 2013 / 8:30 p.m.
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NDP

Pierre-Luc Dusseault NDP Sherbrooke, QC

Mr. Speaker, I am pleased to ask my colleague a question. He works very hard on the committee I chair.

My question this evening concerns Bill C-56. I asked one of my colleagues this question earlier on and he answered it quite well. Nevertheless, I would like the hon. member for Timmins—James Bay to say more about the potential dangers of counterfeit products. For example, my Liberal colleague talked about counterfeit airbags and other assorted auto parts.

What are the dangers associated with counterfeiting, and particularly, what are the risks to the safety of Canadians who think they are using products that meet Canadian standards, when they are really using fakes?