August 21, 2009

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By Product Safety Letter staff

Product Safety Forum is a free service of Product Safety Letter. Its mission is twofold: to promote frank and open airing of product safety issues and to provide advice and guidance from top experts in the field. Do you have an idea or article you think would make a great piece for Product Safety Forum, including commentary or reaction to this one? Then email Publisher Sean Oberle to discuss it. To read more stories, see the archives.

A recent report from the Government Accountability Office (GAO) gives recommendations on how CPSC can improve its oversight of import safety. The August 24 edition of our premium, sister service Product Safety Letter contains an article on those recommendation.

However, in the appendix of the GAO report is a great table that briefly compares the product safety structures, authorities and plans of regulators in five large economies: Australia, Canada, the EU, Japan, and the U.S. We’ve reproduced that chart here.

Five Economies' Product-Safety Systems

	AUSTRALIA	CANADA	EUROPEAN UNION	JAPAN	UNITED STATES
KEY REGULATORY AUTHORITIES	Trade Practices Act 1974; various state and territory laws	The Hazardous Products Act and its corresponding regulations Chemical Management Plan	The General Product Safety Directive (GPSD) (2001/95/EC) sets out the basic requirements on consumer product safety for all EU member states.	-Consumer Product Safety Law - Consumer Basic Act - Product Liability Act - Law for the Control of Household Products Containing Harmful Substances - Food Sanitation Law	Consumer Product Safety Act Federal Hazardous Substances Act Flammable Fabrics Act
ORGANIZATION STRUCTURE	Australian Treasury and state/ territory offices of fair trading develop policy. Consumer law enforcement is shared between national, state, and territory regulators. Australian Competition and Consumer Commission (ACCC) and state/territory offices of fair trading conduct enforcement and monitoriing	Health Canada is the key policy development and enforcement agency. Provincial governments have jurisdiction over the adoption of the National Building Code, which includes certification requirements for electrical, gas, and plumbing products.	Directorate General for Health and Consumers (DG SANCO) is the primary EU agency responsible for consumer product safety. EU member states are responsible for implementation and enforcement of EU legislation.	METI is responsible for consumer product safety policy. The National Institute of Technology and Evaluation conducts inspections in accordance with METI’s instructions and analyzes the cause of accidents. The Cabinet Office provides overall policy guidance.	Consumer Product Safety Commission (CPSC) has national responsibility for consumer product safety policy and enforcement.
STANDARDS	Currently there are few direct consumer safety regulations on most imported goods; however, retailers can face legal action if the goods are faulty. Only a small number of imported consumer products are subject to mandatory standards.	Approximately two-thirds of standards in Canada are voluntary. Some consumer product standards are mandatory legal requirements, others are industry standards developed on a voluntary basis, and some are purely market driven as a particular technology becomes the industry standard.	Imported products must meet the same requirements as domestic products. The EU product safety system is based on voluntary standards. However, for mandatory European Commission standards, products that are manufactured to harmonized standards developed by recognized European standardization bodies benefit from a presumption of conformity with the safety requirements. The safety requirements are expressed in sectoral directives, conformity assessment measures, and, in certain sectors, the availability of European standards. The GPSD fills in the gaps when no sectoral directive exists.	Japanese Standards Association, Japanese Industrial Standards, and the Consumer Affairs Council are responsible for the development of standards. Most standards in Japan are voluntary. Product requirements fall into two categories: technical regulations (or mandatory standards) and nonmandatory voluntary standards.	CPSC may promulgate mandatory product safety standards and rules declaring a product a banned hazardous product. CPSC must defer to a voluntary standard if CPSC determines that the voluntary standard adequately addresses the hazard and that there is likely to be substantial compliance with the voluntary standard. CPSC may ban a consumer product if it determines no feasible standard would protect the public from unreasonable risk of injury.
PRODUCT CERTIFICATION/ LABELING/ TESTING	No requirement for imported product certification. The Productivity Commission has suggested that importers of consumer goods certify that their goods meet applicable Australian mandatory safety standards, but the government has not enacted this suggestion.	No requirement for product certification; however, new legislation seeks to require the furnishing of entry documents and test results at the border.	Member states are required to conduct sampling and safety testing of domestically manufac-tured or imported products and to follow-up on consumer complaints. Businesses must carry out conformity and safety assessments of their products in accordance with the GPSD and/or specific legislation applicable to their products. For some products, self-declaration is sufficient but other products require third-party verification.	Certain imported and domestic products are subject to product testing and cannot be sold in Japan without certification to prescribed standards. Compliance with regulations and standards is also governed by a certification system in which inspection results determine whether or not approval (certification) is granted.	CPSC requires manufacturers to issue a certificate of compliance with mandatory standards. Certifications must be based on a test of each product or a reasonable testing program. Children’s products must be certified by a third party. CPSC may require labels to be permanently marked or affixed to any product, where practicable.
DEFINITION OF UNSAFE PRODUCTS	No definition for unsafe products; however, current law allows the Minister for Consumer Affairs to ban or compulsorily recall consumer products in cases where the products “will or may cause injury.”	Nothing specific at this time under the Hazardous Products Act. A new act passed by the House of Commons and awaiting action by the Canadian Senate, as of June 2009, will include a definition of “danger to human health or safety.”	GPSD defines a “consumer product” and what constitutes a “safe” and “unsafe” product. A “dangerous product” means any product that does not meet the definition of a “safe” product.	Article 1 of the Consumer Product Safety Law defines products as unsafe if they cause threat to consumers’ life or health.	Section 15 of Consumer Product Safety Act defines a substantial product hazard as a failure to comply with a mandatory standard or a product defect that creates a substantial risk of injury.
INSPECT FOREIGN FACILITIES	The government does not have this authority on product safety grounds. Such authority does exist in certain areas, such as motor vehicles and aircraft, covered by domestic legislation governing the import and licensing of such products.	The government does not have this authority. Instead, Canada works with the exporter and has been successful in using this approach, according to officials.	DG SANCO has no inspection authority. Member-state authorities can review technical product files that all businesses are required to maintain to certify general conformity with product standards.	The government does not have this authority.	CPSC is required, by rule, to condition the importation of any consumer product into the United States on the manufacturer’s compliance with the inspection requirements of CPSA.
BORDER SURVEILLANCE AUTHORITY FOR IMPORTED GOODS	Australian Customs has responsibility for determining what may enter Australia. Customs generally accepts ACCC recommendations to ban imports of unsafe products.	The Canada Border Services Agency uses a risk-based approach to border manage-ment to detect and intercept dangerous goods and to facilitate the movement of low-risk goods. Health Canada does not have full-time port presence and relies on Canada’s Border Services Agency for seizure and destruction of products.	The EU recently issued a new regulation to strengthen customs controls. The EU Council Regulation provides the customs authorities with the legal basis and equally applicable and comparable procedures in all member states to suspend, for no more that 72 hours, the release of products that they suspect of posing a serious risk to health and safety.	Japan does not designate consumer products separately in their border and customs authorities. As with CPSC and the EU, Japan imposes its consumer product safety laws on importers, which means that products must be in compliance in order to be imported to Japan.	CPSC is to maintain a permanent surveillance program to prevent the entry of unsafe consumer products into the United States. CPSC may request a reasonable number of samples from Customs and Border Protection (CBP) to examine products for the purpose of making admissibility decisions.
REQUIRE CONSENT TO LOCAL JURISDICTION	Under the current law, Australia could ask foreign jurisdictions to enforce Australian consumer product safety laws. In practice, the Government of Australia prefers other methods, such as approaching manufacturers directly to raise concerns.	The government does not have this authority.	DG SANCO has no jurisdic-tional authority outside the common market. Within the common market, the regu-lations apply to the importer, distributor, manufacturer, and retailer. Imported products must meet the same requirements as domestic products.	The government does not have this authority	StatesNo statutory provision mandates that CPSC require foreign manufacturers to consent to local court jurisdiction.
FUTURE PLANS	Under a decision reached by the Council of Australian Governments in 2008, Australia’s states and territories are expected to adopt the new Trade Practices Act in its entirety in 2010, providing a harmonized product safety regime with greater federal government control.	On June 12, 2009, Canada’s new Consumer Product Safety Act was passed by the House of Commons and, as of the end of June, is awaiting action by the Canadian Senate. The new act will provide better oversight of consumer products by improving the government’s ability to take timely compliance and enforce-ment actions when unsafe products are identified. It will also encourage compliance through higher fines and increased penalties for violators.	Recent EU initiatives aim to improve market surveillance and consistency of enforce-ment across the member states.	On May 29, 2009, the Japanese Diet approved bills establishing the Consumer Affairs Agency. The agency will be responsible for consumer protection issues as part of a more centralized approach. Approximately 200 staff will move to the new agency from the Cabinet Office; the Fair Trade Commission; the Ministry of Economy, Trade and Industry; the Ministry of Agriculture, Forestry and Fisheries; and the Ministry of Health, Labor and Welfare.	Implementation of the Consumer Product Safety Improvement Act of 2008 is ongoing.