WTO Agreement on Trade Facilitation - legislative amendments
The legislative amendments contained in An Act to Amend the Food and Drugs Act, the Hazardous Products Act, the Radiation Emitting Devices Act, the Canadian Environmental Protection Act, 1999, the Pest Control Products Act and the Canada Consumer Products Safety Act and to make amendments to a related Act (the “Act”) relate to two specific provisions of the TFA:
- Article 10.8.1: Importers may return to exporters goods rejected on account of their failure to meet certain health and technical requirements, unless an alternate way is provided for in laws and regulations.
- Article 11.8: Technical regulations may not be applied to goods moving through the territory of a WTO Member from a point outside its territory to another foreign point (i.e. goods in transit).
The legislative amendments do not limit the government’s ability to protect the health and safety of Canadians as well as the environment.
Food and Drugs Act
The Food and Drugs Act (FDA) and its regulations give the Minister of Health, Health Canada, and the Canadian Food Inspection Agency the authority to regulate food, drugs (including natural health products), cosmetics, and devices.
The “Act” amended the FDA to provide for the following:
- An importer of non-compliant foods, drugs, cosmetics, or devices may be offered the option of returning those products to the sender or re-consigning them to a third-party outside of Canada. If the products pose a risk of injury to health or safety, then the products could be subject to measures, including seizure.
- Packaged foods, drugs, cosmetics and devices that are manufactured or prepared outside of Canada may be imported solely for the purpose of export provided that they are not sold for consumption or use in Canada. This provision will come into force on a date to be fixed by the Governor-in-Council.
- Packaged foods, drugs, cosmetics and devices manufactured or prepared in Canada for export only will be required to comply with requirements in the FDA, generally targeting deception, unsanitary conditions and products posing a risk of injury. However, these requirements will not apply to natural health products within the meaning of the Natural Health Products Regulations.
Hazardous Products Act
The Hazardous Products Act (HPA) and its regulations give the Minister of Health and Health Canada the authority to regulate the sale and importation of hazardous products intended for use, handling or storage in Canadian workplaces.
The “Act” amended the HPA to allow hazardous chemicals that are found to be non-compliant with the HPA to be returned or re-consigned to the sender, unless other measures are required for health or safety reasons, in which case they may be seized and not returned.
Radiation Emitting Devices Act
The Radiation Emitting Devices Act (REDA) and its regulations give the Minister of Health and Health Canada the authority to regulate the sale, lease, and importation of radiation emitting devices. REDA regulates devices that emit radiation in the form of electromagnetic energy (e.g. x-rays, microwaves, radiofrequency (RF) waves, infrared (IR), visible light and ultraviolet (UV) light) or acoustical energy, as well as any component of, or accessory to, such devices. It does not regulate devices that are subject to the Nuclear Safety and Control Act nor devices covered under the Motor Vehicle Safety Act.
The “Act” amended the REDA to allow an importer of non-compliant radiation-emitting devices to be offered the option of returning or re-consigning them to a third party outside Canada. If the products pose a risk of injury to health or safety, then the products could be subject to other measures, such as seizure.
Canadian Environmental Protection Act, 1999
The Canadian Environmental Protection Act, 1999 (CEPA) and its regulations give the Minister of Environment and Climate Change and Environment and Climate Change Canada the authority to prevent pollution and protect the environment and human health. Section 117 of CEPA prohibits the import (which includes transit) and manufacture for use or sale of cleaning products or water conditioners that contain prescribed nutrients in excess of prescribed values.
The “Act” amended the CEPA to provide the regulation-making authority to exempt cleaning products and water conditioners under Part 7, Division 1 of CEPA, such as those in transit through Canada, from the prohibition in Section 117 and to make distinctions based on any factor.
Pest Control Products Act
The Pest Control Products Act (PCPA) and its regulations give the Minister of Health and Health Canada the authority for the oversight of pest control products, including an assessment for value, health and environmental risks before a product may, among other things, be imported, distributed or used in Canada. In satisfying its administrative mandate, Health Canada engages in compliance activities to mitigate health and environmental risks from pest control products.
The “Act” amended the PCPA to provide for the following:
- An importer of non-compliant pest control products may remove the product from Canada or forfeit it. Authority is also given to an inspector to prevent the return of non-compliant products that would endanger human health or the environment.
- Authority to exempt goods in transit from the prohibition against importing and transporting unregistered products while maintaining safeguards protecting the environment and the health and safety of persons who may come into contact with such goods.
Canada Consumer Product Safety Act
The Canada Consumer Product Safety Act (CCSPA) and its regulations give the Minister of Health and Health Canada the authority to protect the public by addressing or preventing dangers to human health or safety that are posed by consumer products.
The “Act” amended the CCSPA to allow consumer products that are found to be non-compliant with the CCPSA to be returned/re-consigned to the importer, unless other measures are required for health or safety reasons such as the seizure of products that pose a danger to human health or safety.
On April 29, 2016, Global Affairs Canada, in collaboration with Health Canada and Environment and Climate Change Canada, hosted an online technical briefing on the WTO Agreement on Trade Facilitation (TFA) and An Act to amend the Food and Drugs Act, the Hazardous Products Act, the Radiation Emitting Devices Act, the Canadian Environmental Protection Act, 1999, the Pest Control Products Act and the Canada Consumer Product Safety Act and to make related amendments to another Act.
See the presentation (.pdf).
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