Health Committee on Oct. 19th, 2010

[Athana Mentzelopoulos]

I wish I could explain the concern. It's very explicit in the legislation. We've taken great pains to make it clear that the legislation does not apply to natural health products. Some of the concerns do go beyond that.

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

Could there be a way around this provision so that the bill applies to natural health products?

[Athana Mentzelopoulos]

No, there is no way. There is a way, but it would have to come back before Parliament to be amended so that the scope of the legislation would be changed--for example, to remove the provision in subclause 4(3). So yes, there is a way, but certainly it would be the purview of parliamentarians to do so.

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

But the version we have before us, i.e., Bill C-36, in no way affects natural health products. Is that correct?

[Diane Labelle]

Madam Chair, evidently, neither the Governor in Council nor the minister could amend the wording of the legislation. Parliament alone has that authority. Therefore, the wording of the legislation cannot be amended as regards natural health products.

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

Excellent. Thank you.

As you know, a good part of the authorities arising from this bill will be included in the regulations, and the minister does have some discretionary power, as conferred on him by the legislation. That was the case with other bills, when the regulations had been submitted to a committee for a broader review prior to adoption.

How does your department envisage the drafting of the regulations, the comments that will be elicited and their implementation?

[Athana Mentzelopoulos]

There are probably a number of ways I can reassure you in that regard. First of all, the constraint of the legislation is clear. It's laid out in the legislation itself. There are clear restrictions, for example, on inspectors' powers. Inspectors are limited to what is described in the legislation in terms of their verification, for example, of compliance with the legislation.

There are a number of mechanisms that ought to reassure folks in terms of the transparency for the regulations. There is the Canada Gazette process that we have to go through for the making of regulations, in any case. There is also the provision that was added, I believe at this committee, which has been retained, whereby any foundational regulations would have to be laid before both the House and the Senate, so that's an added layer of scrutiny.

There is also the provision, again as a result of this committee, for an advisory committee, and that has been retained here as well.

[The Chair, Conservative, Joy Smith]

Thank you, Ms. Mentzelopoulos.

Now we'll go to Mr. Thibeault.

[Glenn Thibeault, NDP, Sudbury, ON]

Thank you, Chair.

Thank you for coming today and providing us with information.

To be very clear, is there anything in this bill that can be deemed non-compliant with the Canadian Charter of Rights and Freedoms?

[Athana Mentzelopoulos]

No. I'll ask my colleague to elaborate.

[The Chair, Conservative, Joy Smith]

Madame Labelle, would you like to comment as well?

[Diane Labelle]

Thank you, Madam Chair.

Thank you, Mr. Thibeault, for the question.

The issue that arose particularly in the Senate centred around the use of inspectors' powers. At the time the explanation and the letter that was tabled with the chair of the committee of the Senate that was hearing the bill confirmed that the Minister of Justice scrutinizes every bill for consistency with the charter, and no such inconsistencies were reported.

The concern appears to be the fact that inspectors, having reasonable grounds to believe that a regulated activity is taking place in a building or a conveyance, may enter to verify compliance or prevent non-compliance solely for the purpose of administering the act, and it seems that the concern that was expressed was why weren't inspectors required to have reasonable grounds to believe that an offence was created and that a judicial warrant was necessary. And in fact the Supreme Court of Canada has recognized the necessity for administrative regimes to verify compliance. That is the type of regime that is set up in Bill C-36, and it goes only to the predominant purpose of ensuring compliance with the statutes and the regulations.

The inspector powers in no way engage an individual's penal responsibility. If it were a matter for a criminal investigation, then yes, either an inspector or a law officer would require a judicial warrant from the court under the criminal court, but that is not what we're talking about in Bill C-36.

[Glenn Thibeault, NDP, Sudbury, ON]

Perfect, thank you.

Today you read in the newspapers that jewellery made with toxic metal is still sold in Canada. It's the cadmium. That's where I start wearing two hats, as a father of a seven-year-old daughter and a three-year-old daughter. My seven-year-old wears it. My three-year-old eats it. I'm sure all parents across the country are worried every time they read something like this.

Can you, I guess in the Coles Notes version, differentiate between what we currently have in place and what this bill is going to do, and how this is going to better protect our children and make parents feel a little better?

[Athana Mentzelopoulos]

Thank you for the question.

I have a four-year-old. I think he's just coming out of the eating foreign objects phase--I hope.

What's developed with cadmium today is probably a very good example of the way we might approach product safety differently had we had these provisions in place. I'm speaking in particular of the general prohibition.

With our existing legislative regime, Madam Chair, we have the Hazardous Products Act, which takes a very product-specific approach. So we have, for example, regulations that stipulate limits on the presence of lead. In order for us to be able to take an enforcement approach to cadmium, we need to develop regulations that would stipulate something similar. It would obviously be corresponding to what we would learn as a result of science.

As you've suggested, the problem with cadmium is not wearing it, but ingesting it. At what level does it begin to create a problem? We're not sure. It's an issue that has started to develop recently in a couple of years of cyclical enforcement, because we are on alert for the presence of heavy metals. When we've been testing for lead we've been alive to what might also be other problems with similar products. In 2009 we didn't see a problem with cadmium. We were looking; we were on alert. It is something that has developed this year, in 2010.

For us to be able to develop regulations, as you know, is a necessarily time-consuming process. It requires consultations. If we had the general prohibition in place and we had the scientific basis to determine that at a certain level the presence of cadmium in certain products poses a danger to children or to people in general, then we would be able to actually use the general prohibition as a basis for enforcement. As it stands, in the absence of regulations, we've done what we've done today, which is a voluntary approach. We've used a voluntary approach in the past. It has been productive, but given what we might find in the marketplace going forward, it's probably something we would regulate.

[Glenn Thibeault, NDP, Sudbury, ON]

So will Bill C-36 then improve the recovery rate? I know we're talking about only 10% to 15% of recalled products making it in right now. Especially if we want to get all of this cadmium off the market, will this look at ways of improving the recovery rate?

[Athana Mentzelopoulos]

A lot of how we improve the recovery rate will come from effective procedures. But a really important provision in Bill C-36 is through document retention. So should the bill pass, industry is required to retain one level up and one level down the supply chain of documents. That is specifically designed to facilitate the recovery of recalled items, to know where they have been distributed, where they have come from, and to be able to track them down. That's in addition to the procedural approach of recall effectiveness to follow up in the marketplace to ensure that materials and products have been removed.

Is there something you want to add, Robert?

[Robert Ianiro]

The only other point I'd like to add is that the orders that could be issued for corrective action could also include specific instructions on the types of documentation and information that needs to be provided to Health Canada to do exactly what you're suggesting, which is the effectiveness of the recall. So under Bill C-36 we would have the ability to do that and we would be leveraging information that Mrs. Mentzelopoulos discussed under the document retention provision.

[The Chair, Conservative, Joy Smith]

Thank you so much, and thank you, Mrs. Mentzelopoulos.

We're now going to go to Dr. Carrie.

[Colin Carrie, Conservative, Oshawa, ON]

Thank you, Madam Chair.

I want to thank the officials for being here again to help explain this very important bill to us and the Canadian public.

There has been a lot of misinformation and perhaps interpretation and just misunderstanding of some of the aspects of the bill. One of the things that's close to this committee's heart is tobacco and we worked very hard together and we passed Bill C-32. I think everybody here is very proud of that. But tobacco products have a permanent statutory exemption under this bill. Only the propensity for ignition is included in the regulatory framework, and some of our stakeholders have insisted that this exclusion be deleted in the interest of the overall health of Canadians.

So why have you not changed this since the last bill? I was wondering if you could explain it to everybody in plain language and maybe give an example.

Mr. Ianiro, I talked to you about this before in one of the briefings. Would you be able to put that on the table for us?

[Athana Mentzelopoulos]

The broad answer is that the government's view is that Parliament has enacted valid legislation regarding tobacco. Tobacco use is a unique social and health problem, and the Tobacco Act was developed specifically to try to manage that problem. In addition, the Tobacco Act has been subjected to constitutional challenges and we know as a result of the Supreme Court decision in 2007 that it is validly enacted legislation. So there is a firm basis for management of tobacco in the context of the Tobacco Act and no need to address it in the Canada Consumer Product Safety Act.

[Robert Ianiro]

In regard to the one item relating to tobacco and tobacco products that is covered in the statute, and this is in subclause 4(2), which discusses the ignition propensity, I just wanted you to perhaps clarify that.

The Tobacco Act covers items relating to health, and it was in fact the Standing Joint Committee for the Scrutiny of Regulations that has requested that the department look at and deal with the safety aspects relating to tobacco and tobacco products. So when I referred to safety, it would include things like ignition propensity, which are often referred to as fire-safe cigarettes. This is deemed to be a safety issue and not a health issue and therefore outside the scope of the act.

The standing joint committee has requested that those regulations currently enacted under the Tobacco Act be moved under the Hazardous Products Act. In fact we are just carrying over that request to Bill C-36 so that we will have the ability to deal with the one aspect in response to the standing joint committee and to continue to have legally binding requirements for fire-safe cigarettes in Canada.

[Colin Carrie, Conservative, Oshawa, ON]

Excellent. Thank you very much for explaining that.

The other thing I've heard about is interpretation, like the word “danger”, and it depends on who you talk to. Electricity can be dangerous; knives can be dangerous.

Could you explain to me what constitutes a danger and where in the bill these rules are established?

[Athana Mentzelopoulos]

I believe it would be most productive to start with the definitions. In the definitions it reads:

“danger to human health or safety” means any unreasonable hazard—existing or potential—that is posed by a consumer product during or as a result of its normal or foreseeable use

Essentially, when we talk about “unreasonable”, we're really trying to get at the notion that there are some consumer products that are inherently dangerous—a chain saw, a kitchen knife, there are others—that we consider to be reasonable dangers because they're part of the utility of the product. In stipulating what, then, would be considered an unreasonable danger, there is already existing, as a result of international standards, a great deal of expertise in industry itself--some of the standards that we've developed. We have implicitly, in our own regulations, to a considerable extent, the definition of what constitutes making sure something is safe. These are all elements of determining whether or not something constitutes an unreasonable danger. Also, through the consultations we're doing on the system for mandatory reporting, we have provided some further elaboration on what would constitute an injury as a result of an unreasonable danger.

So the parameters are well established in the legislation and there is considerable input and advice that we get from the work that goes on in the design industry and in other jurisdictions as well as here.

[Colin Carrie, Conservative, Oshawa, ON]

All right.

Did you want to add anything there, Mr. Ianiro?

[Robert Ianiro]

The only thing that I could add is that we continue internationally to develop standards that in fact will better support industry in providing them with guidance and practical tools to do the sorts of assessments right across the board in the entire supply chain. One specific standard that comes to mind is a standard being developed with over 23 countries involved--and Canada is one of them leading the pack--which is an ISO standard, the International Organization for Standardization. It's working on a standard that would help, in particular, small and medium-sized enterprises, but in fact all industry, everything from the design of a product to the manufacturing, all the way down to what would happen at distribution and retail. It's these sorts of guidance and practical tools and standards that would also help inform industry on determining what poses a danger and the sorts of things to think about through their supply chain processes.