Health Committee on May 5th, 2009

[Luc Malo, Bloc, Verchères—Les Patriotes, QC]

So you will need a bigger budget.

[Charles Ethier]

Certainly.

[The Chair, Conservative, Joy Smith]

Thank you, Monsieur Malo.

We'll now go to our next questioner, Ms. Wasylycia-Leis.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

Thank you, Madam Chairperson.

Thanks to all of you for your presentations.

I agree that this bill takes us forward. There are some improvements in this whole area. My concern--you've heard me before on this--is that we may have brought ourselves up to the 2009 scenario, but I don't know if we're prepared to look into the future to deal with some of the upcoming issues that other countries are grappling with.

First, why is there so much discretion in the bill? Every clause you look at talks about how “the Minister may”. You can read it on just about every page. I know there are different tools in this bill that are useful. Why isn't there a requirement that the government does something when there is a problem, as opposed to leaving it open to such discretion? And why has there been the change from Bill C-52, where the minister is no longer obligated to report and disclose problems?

Those are my first two questions. I have three more.

[Paul Glover]

Thank you for the questions.

The bill is intended, through the three principles that I enunciated in my opening remarks--active prevention, targeted oversight, and rapid response--to be, as my colleague Charles answered in response to the last question, something that will evolve to the market.

So this actually a bill that is intended to respond not just to the problems of 2009, but also to the problems of 2010 and beyond, by making sure that the department has the tools necessary to respond to an evolving marketplace.

We are finding, as a result of globalization, that with the introduction of new products, new technologies, there is a need for us to be flexible. So the system needs to respond to what we think of as active prevention. The needs for standards may shift over time, as we move forward, as we see the introduction of new technologies, new products, and as we learn what works and what doesn't in working with civil society, with industry, with other stakeholders.

The targeted oversight is intended to provide us with the information we need to then take an appropriate response relative to the risk that we see—this is a risk-based piece of legislation—as we move forward.

Then, finally, underpinning all of that, when we see that there are problems, is the notion of that rapid response.

It's meant to be something that will evolve as the markets evolve and as the products evolve. There was the notion that one product or one toy always used to come from the same plant, and we could count on that being the issue if there was a problem with it. With the range of issues that we are having to deal with, we're seeing that the market has changed with globalization, with the inputs into that, and with the products coming out of one plant differing with the source products going into that. There is a need for us to have flexibility to respond as we move forward.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

I understand some of this, but I don't understand it when it comes to substances in products where there is a known risk factor. In those cases, I don't know why you need flexibility in terms of dealing with human health and well-being. If we know that something is dangerous, then surely the law can be written in a way that says actions shall be taken when a dangerous substance is found in a product that can be harmful to human health and well-being. What you're saying is you can have recalls, you can prohibitions, but it all can be done in the context of flexibility, and the minister has discretion to report it to the public or not.

I think people want something more than just a risk-management model—and maybe this is where we disagree. They want a proactive government that says, “If you know something is dangerous, then do something about it”. Don't say, “We might test; we might not. We might disclose; we might not”. Why not just do it?

[Paul Glover]

With respect to the question, there are a number of elements to the response. This piece of legislation is intended to allow us to respond significantly more rapidly than we have in the past—

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

I agree with that, yes.

[Paul Glover]

—where we see problems, and that is its intention. It is also important to note, I believe, that this is not the only piece of legislation that the government has to deal with in these types of issues.

For example, when you speak of dangerous substances, Canada is a world leader in terms of its chemicals management plan, where it has identified a large number of substances. It is working very rapidly to assess those. It has put the onus on industry. It has demonstrated a predisposition with respect to how it will move on those substances and is taking the appropriate regulatory actions or other actions, as necessary, based on the risk coming out of that.

So through the chemicals management plan, there is very specific, world-leading action that accelerates the efforts of this government to deal with substances, both in the environment and in human health.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

Is lead on the list of dangerous chemicals? Is lead on the list? We know that lead in toys is a problem. This legislation isn't going to allow you to stop having lead toys on the market. Why not?

[Paul Glover]

This legislation, through the general prohibition, if the level that was found presented a risk, would allow us to act.

There's an important fundamental issue that is problematic for people to understand. With technology today, if you ask me to look for it, I will find it. In pretty much anything we are down to nano-particles. It's very difficult to find something that, as you say, is completely lead-free. It occurs naturally in the environment. It's in dust, it is all around us, in many respects.

The unfortunate reality is that technologies today will allow us, if you say, “Go and look for it”, to find it. What we are trying to do with the general prohibition is make sure that industry, when it designs its products, takes those issues into account so that there is not an undue risk to Canadians as they use those products.

[Judy Wasylycia-Leis, NDP, Winnipeg North, MB]

When you make those kinds of provisions, do you look at the possibility of the cumulative effect of these particular substances and its impact on human health? For example, with lead, it might be a tiny particle in this toy car, but combined with this other particle--

[The Chair, Conservative, Joy Smith]

Your time is up, Ms. Wasylycia-Leis.

We'll give him a chance to answer. Please, go ahead, Mr. Glover.

[Paul Glover]

The chemicals management plan looks at the cumulative effects, and the risk assessments we do also look at cumulative effects.

[The Chair, Conservative, Joy Smith]

We'll go to Ms. Davidson.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thank you, Madam Chair.

Thanks very much for your presentation and for being here this afternoon.

I have three different areas I want to ask questions about, so maybe I'll just ask the questions and then whoever wants to can answer.

My first one is about the relationship between the proposed act and the Canadian Environmental Protection Act, the existing one. I'm assuming that they're going to work together to reduce exposure. But how will you deal with consumer products that consist of toxic substances? Will the fact that a product contains a toxic substance under CEPA automatically ban the product under the proposed act? Will they coincide? How does the proposed act deal with the environmental impact of consumer products? That's my first set of questions.

My second question is in regard to the proposed act and its impact on manufacturers and retailers. What's going to be the impact on them? For example, going back to Judy's question on addressing lead in children's toys, how will the new act work in collaboration with existing regulations along those lines?

My third question is in regard to importers. How can the products that we know pose a danger to human health and safety be stopped at the border? Will this cause a delay in the flow of goods into Canada? Can we actually deal with non-compliant manufacturers in other countries?

[Paul Glover]

Chair, I'll take those questions in reverse order.

The legislation would definitely allow us to deal with importation issues, so we would be able to work with our partners, Canada Border Services Agency and others, to deal with the product before it would even enter the country. So if we had concerns about a product, we could stop its importation. We could ask that it be held at the border. There are a range of things we could do relative to the risks. So it does have the ability to do that, and we could work with them through triggers and other notices.

When there is not a risk, it is not meant to propose that there be an undue burden on the industry. That's where you get back to this being a post-market, not a pre-market, regime as we move forward. When there is a problem we have identified, we could deal with it through this before it entered the country.

With respect to manufacturers, the impact on them is really, I think, speaking as a bureaucrat, quite simple. They need to make sure that in the design of the product they are manufacturing, they have contemplated its uses so it will not create a health and safety risk when used. That's the impact on manufacturers. As they do that, they need to make sure that they have records, that they've done the tests, and that if we have concerns and ask for the data, they provide it.

With respect to something being on CEPA and how we would work directly with CEPA, I spoke earlier of the chemicals management plan and of identifying substances. The two pieces of legislation work together. Our intention in creating Bill C-6 and the proposal before you was not to design one piece of legislation that solves all the problems associated with all the issues. It was intended to deal with consumer products and their safety and to work in concert with other pieces of legislation. So where we see that there is a substance-specific problem that CEPA has identified, we would then ask ourselves which act is best placed to achieve the results.

In terms of the impact we are trying to achieve, CEPA's objective is also the protection of human health, the environment, and sustainability. So we would ask which of those two acts is best positioned to respond as we move forward in developing the response from the government as it moves forward.

I know that my colleagues would like to add to that response. Just briefly, then, I'll turn to my colleagues Rob Ianiro and Diane Labelle.

[Robert Ianiro]

Thank you, Paul.

I have just a couple of quick words on the question of existing requirements and how the new act would carry over any of those requirements.

I think it's important to note, in the example of lead that was given, that we already control, to a great extent, lead in a variety of products, everything from paint in a can to surface coating on toys. In fact, we are the first country in the world to enact regulations to control the levels of lead in children's jewellery. There are five countries that are now following suit.

I think it's important for committee members to realize that the act itself really proposes a framework, and the general prohibition really creates that safety net. If we have an unregulated hazard, or a hazard that we had never considered, and it poses unreasonable danger to human health or safety, if we have a regulation or not, we will be able to take action. I think it's important for the committee to know that all those existing regulations under the current Hazardous Products Act, which number about 30 or so, will continue to stay in effect and be moved over to the proposed Canada Consumer Product Safety Act.

[Diane Labelle, General Counsel, Legal Services Unit, Department of Health]

Madam Chair, perhaps I can clarify the points that are being made about the interaction between CCPSA and CEPA. One has to understand the context in which CCPSA will be operating. It is establishing a new obligation in the sense of a prohibition.

If a substance or product is caught by this general prohibition, then the CCPSA will apply. If it's a matter of looking at and analyzing a substance and trying to figure out how to deal with it in the future, then a decision will be made as to which is the best instrument to use for regulating that product or substance.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

In your remarks, when you talked about the general prohibition, you said that the general prohibition would make it “an offence for a supplier to manufacture, import, advertise or sell a product that poses an unreasonable danger to the health or safety of the public”.

Who defines that unreasonable danger, and how do they do that?

[Paul Glover]

That is an excellent question. I wish the answer were simple.

If you take practical examples, knives are meant to be sharp. They're meant to cut things. They are a consumer product. We wouldn't, by definition, say that they're sharp; they're therefore dangerous.

We have to take a look at the intended use of that product and the amount of documentation that supports it so that the consumer, when using it, has the information they need in order to make sure that they're using it as was intended and that it is reasonable.

There is, in fact, existing jurisprudence about this particular issue as we move forward on how we will interpret what is an unreasonable risk.

[The Chair, Conservative, Joy Smith]

Thank you so very much.

Now we'll go to Dr. Bennett.

We're now going into five-minute rounds for questions and answers.

Dr. Bennett.

[Carolyn Bennett, Liberal, St. Paul's, ON]

My first question is why is there still the statutory exemption to tobacco products?

My second question is in terms of risk management. A lot of this seems to be focused on acute exposure. How are you organizing the science when we know that for some things it's over accumulated exposure that actually there are health effects, as with BPA? We know that tissue has tons of this stuff in it, so people must be getting it somehow. How are you going to determine this?

Also, there's the science of the two or three different chemicals that may be added together in a certain way--i.e., two and two makes five, in a certain way. How do you do that? What is the advisory process that you use in obtaining the science?

Finally, this actually says “safety of consumer products”. Do you have a process within this that deals with consumers in terms of their being allowed to determine the risk that is acceptable to them or not? You would think that in consumer safety, you would be the best in all of government in consulting consumers and educating consumers as to what they see as acceptable or not, given the facts.

I guess you could start with the question on tobacco.

[Paul Glover]

Okay. I will also defer to my colleague Diane Labelle.

With respect to tobacco, again as I mentioned earlier, this legislation is meant to work in concert with other pieces of legislation. There is already an extensive piece of legislation that deals specifically with tobacco and tobacco products, and we see that act as the one we would continue to use. Therefore, rather than duplicating, replicating, and creating confusion, we chose to work with the existing legislation that is there.

[Diane Labelle]

Madam Chair, Justice has looked at this issue of moving tobacco to schedule 1. It has formed the view that Parliament has enacted valid legislation with respect to tobacco. Tobacco use is a unique social and health problem that the Tobacco Act does address. It was developed for that purpose.

In particular, the Tobacco Act has been subject to many constitutional challenges, the latest decision coming out of the Supreme Court of Canada on June 28, 2007. We now know that the tobacco legislation is a constitutionally valid piece of legislation.

So the prospect of regulating tobacco under the CCPSA has the potential of revisiting the balance that has been struck between Parliament's objectives and the charter. The government has sought, in subclause 4(2), to avoid revisiting this issue under this piece of legislation. It is provided for directly in the statute for some secondary reasons as well.

The CCPSA applies only to a single characteristic of tobacco products, and that is their ignition propensity. This has been dealt with in subclause 4(2) for two reasons--one, to respond in an open and transparent manner to comments made by the Standing Joint Committee on the Scrutiny of Regulations, and then to maintain the integrity of the schedule, which exempts entire products and not only the characteristic of a product.

Thank you.