Canada Gazette, Part I, Volume 155, Number 17: Regulations Amending Certain Regulations Made Under the Canada Consumer Product Safety Act (Surface Coating Materials)
April 24, 2021
Statutory authority
Canada Consumer Product Safety Act
Sponsoring department
Department of Health
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Executive summary
Issues: A number of regulations issued under the authority of the Canada Consumer Product Safety Act (CCPSA) have requirements that restrict lead, mercury and certain other harmful elements (antimony, arsenic, cadmium, selenium and barium) in surface coating materials. The requirements have been effective in preventing the intentional use of lead, mercury and certain other harmful elements in surface coating materials by industry, and thereby in helping to reduce exposure to these elements by Canadians. However, there are some gaps in the regulatory framework that may make it difficult for Health Canada to take quick enforcement action when high levels of lead, mercury or certain other harmful elements are found in surface coating materials that are not currently subject to regulatory requirements limiting the content of these elements. There are also requirements for surface coating materials that place an undue compliance burden on industry. Lastly, some requirements are not clearly and consistently set out across regulations, which may make it difficult for industry to comply.
Description: Health Canada is proposing the Regulations Amending Certain Regulations Made Under the Canada Consumer Product Safety Act (Surface Coating Materials) to address these issues by (a) expanding the meaning of a surface coating material to include surface coating materials that do not “dry” on application, such as powder coatings that are applied electrostatically, and other decorative surface coating materials that may be applied to products during manufacture, such as stickers or films; (b) introducing a 90 mg/kg total lead limit in surface coating materials applied to furniture; (c) removing the restrictions on lead, mercury and certain other harmful elements in surface coating materials applied to parts of products that are inaccessible; (d) removing an outdated test method for certain harmful elements in applied surface coating materials; (e) requiring testing to be done in accordance with a method that conforms to good laboratory practices; and (f) ensuring consistency between regulations. A few housekeeping amendments are also proposed.
Rationale: The proposed amendments would benefit Canadians, particularly children, by further reducing the potential for exposure to lead, mercury and certain other harmful elements. Although it is expected that most products on the Canadian market already comply with the proposed amendments, they would allow Health Canada to take quick corrective action, such as removing a product from the market, when it identifies high levels of lead, mercury or certain other harmful elements in a broader range of products. The proposed amendments would also benefit industry without compromising the health or safety of Canadians by (a) aligning and clarifying the requirements for surface coating materials and applied surface coating materials across regulations under the CCPSA, which would make it easier for industry to comply; (b) improving alignment with the United States, which would facilitate trade; and (c) reducing regulatory costs by simplifying testing and removing requirements that do not benefit health. Total compliance costs to affected industry sectors for the 10-year period beginning the year before the amendments would come into force were estimated to be $1,767,081 (2019 Canadian dollars discounted at an annual rate of 7%), or $235,652 annualized. These costs could be passed on to Canadian consumers, but the increase in consumer costs is anticipated to be insignificant. The one-for-one rule does not apply because the proposed amendments do not impose any administrative costs on industry. While no noticeable differences in compliance costs have been identified between individual businesses, total costs are estimated to be highest for small businesses since the majority of businesses impacted by the proposed amendments are small.
Issues
This regulatory proposal helps address a number of issues related to the regulatory requirements for surface coating materials and applied surface coating materials under the Canada Consumer Product Safety Act (CCPSA).
Health and safety considerations
Lead, mercury and certain other harmful elements (antimony, arsenic, cadmium, selenium and barium) in a surface coating material are a hidden hazard because they cannot be identified visually. These elements have been restricted for many years in surface coating materials or in applied surface coating materials on products for children, pencils and artist brushes in a number of regulations under the CCPSA. As a result, it is uncommon to find products in these categories that contain non-compliant levels of these elements in the Canadian market. However, the requirements do not apply to all types of surface coating materials; for example, materials such as stickers and films that may be used as a decorative coating on a product are not included in the regulatory definition of a surface coating material. Also, some products with an applied surface coating material that are regulated for lead in the United States are not regulated in Canada; for example, the United States restricts the lead content of applied surface coating materials on all household furniture while in Canada the restriction applies to children's furniture only. Industry stakeholders have indicated that few of these unregulated products are likely to contain lead, mercury or certain other harmful elements above the limits considered to be protective to children's health. However, Health Canada does not currently have the authority to take quick enforcement action when those limits are exceeded in unregulated products.
Compliance burden considerations
The requirements for applied surface coating materials across various regulations under the CCPSA are not consistent. For example, the Surface Coating Materials Regulations, the Toys Regulations, the Cribs, Cradles and Bassinets Regulations and the Playpens Regulations specify a lead limit for applied surface coating materials, but such requirements are not included in the Expansion Gates and Expandable Enclosures Regulations. A supplier of expansion gates and expandable enclosures may not be aware that the Surface Coating Materials Regulations also apply to their products. An unclear and inconsistent structure for requirements may make it difficult for some regulated parties to comply.
In addition, there are some requirements for applied surface coating materials that regulated parties must meet that impact compliance costs, even though they provide limited benefits to health. For example, the requirements restrict lead, mercury or certain other harmful elements in applied surface coating materials on all product parts, but only those parts that are or become accessible during the reasonably foreseeable use of the product pose a substantial risk to health. Parts that remain inaccessible during reasonably foreseeable use of the product pose little risk of exposure to these elements, so should not be required to meet the established limits.
The specific issues are set out in greater detail in the “Description” section.
Background
Exposure to lead, mercury and certain other harmful elements can pose a serious health risk to humans, especially young children. The health effects that can result from exposure to one or more of these elements include impacts on the nervous system, heart, lungs, gastrointestinal tract and kidneys. Exposure can also affect child behaviour and development.
Historically, lead compounds were added to paints and other surface coating materials to accelerate drying, increase durability, resist moisture and produce specific colours. However, as the harmful effects of lead exposure to human health — and to children's health in particular — became better known, lead use in surface coating materials decreased. Lead content restrictions for paints and other liquid coating materials were mandated in Canada in 1976 under the Hazardous Products (Liquid Coating Materials) Regulations of the Hazardous Products Act (HPA), as it then existed. The Hazardous Products (Liquid Coating Materials) Regulations restricted the total lead content of interior-use liquid coating materials to 5 000 mg/kg and required precautionary labelling on exterior-use liquid coating materials that contained more than 5 000 mg/kg total lead. In 2005, the Hazardous Products (Liquid Coating Materials) Regulations were renamed the Surface Coating Materials Regulations to capture all forms of surface coating materials. At that time, the total lead limit was reduced to 600 mg/kg for both interior- and exterior-use surface coating materials to align with the federal limits in the United States, and a total mercury limit of 10 mg/kg was introduced. As in the United States, some surface coating materials were exempt from meeting the allowable total lead limit, provided their containers had precautionary labelling. In 2010, the allowable total lead limit was further reduced to 90 mg/kg, following the same action in the United States. In 2011, the Surface Coating Materials Regulations were amended by adding items 2 and 18 of Part I of Schedule I to the HPA, which restricted the total lead content of applied surface coating materials on products for children, pencils and artist brushes. This action was needed when Part I and Schedule I to the HPA were repealed and replaced with the CCPSA. The Surface Coating Materials Regulations were also transferred to the CCPSA at the same time.
The total lead and mercury limits of 90 mg/kg and 10 mg/kg, respectively, are the accepted background levels that cannot be completely eliminated from surface coating materials. They effectively prevent the intentional addition of lead and mercury to surface coating materials while allowing for naturally occurring lead and mercury impurities present in some surface coating material ingredients. These limits serve to help protect children from the adverse health effects of lead and mercury exposure based on Health Canada risk assessments.
Requirements to limit lead, mercury and certain other harmful elements in applied surface coating materials are set out in the Toys Regulations, the Carriages and Strollers Regulations, the Cribs, Cradles and Bassinets Regulations, the Expansion Gates and Expandable Enclosures Regulations and the Playpens Regulations under the CCPSA. The limits on certain other harmful elements were set out to protect the health of young children.
Objective
The objective of this regulatory proposal is to amend existing regulatory requirements for surface coating materials and applied surface coating materials under the CCPSA so that they are clear, consistent, relevant to all types of coating materials (including stickers, films and similar materials) and better aligned with requirements in the United States, without imposing an unnecessary compliance burden on industry. The amendments will also give Health Canada the necessary tools to act quickly to remove non-compliant products from the market and help protect Canadians.
The proposal also links to Government of Canada regulatory reform initiatives to address health and safety considerations while helping to reduce the compliance burden on industry and improving the alignment of requirements with our major trading partners.
Description
The following specific issues have been identified:
- Definition of a surface coating material — A surface coating material is defined in the Surface Coating Materials Regulations as “a paint or other similar material, with or without pigment, that dries to a solid film after it is applied to a surface, but does not include material that becomes a part of the substrate.” Consequently, the Surface Coating Materials Regulations do not give Health Canada the authority to take enforcement action on products for children, pencils and artist brushes that have more than 90 mg/kg total lead in certain coatings such as stickers or films, as these materials are not similar to paint and do not dry to a solid film after they are applied to a surface.
- The Toys Regulations, the Carriages and Strollers Regulations, the Cribs, Cradles and Bassinets Regulations, the Expansion Gates and Expandable Enclosures Regulations and the Playpens Regulations under the CCPSA also have provisions for applied surface coating materials, and these provisions link back to the definition of a surface coating material in the Surface Coating Materials Regulations. As a result, these other regulations also do not apply to coatings such as stickers or films that contain more than 90 mg/kg total lead.
- This gap may impact negatively on children's health and safety. As with an applied paint or similar material, the presence of lead in a coating such as a sticker or film presents a risk of exposure to lead if the coating is disturbed in a way that allows it to be ingested, such as when a child mouths, chews, picks or scrapes it.
- The definition of a surface coating material under the Surface Coating Materials Regulations is also not aligned with the definition of a coating under ASTM F963, Standard Consumer Safety Specification for Toy Safety. ASTM F963 is a product safety rule in the United States that sets out mandatory requirements for the maximum allowable lead content in applied surface coating materials on toys by referencing the lead content provisions of Part 1303 of Title 16 of the Code of Federal Regulations (16 CFR Part 1303), Ban of Lead-Containing Paint and Certain Consumer Products Bearing Lead-Containing Paint, as well as the Consumer Product Safety Improvement Act of 2008 (CPSIA). A coating under ASTM F963 refers to “all layers of material formed or deposited on the base material … which can be removed …”, and coatings such as stickers are specifically identified as being within the scope of the restriction.
- Another issue related to the definition of a surface coating material under the Surface Coating Materials Regulations is that it only applies to a coating material that “dries” to a solid film after it is applied to a surface. As a result, the definition excludes surface coating materials that form or change to a solid film by a means other than drying, such as powder coating materials that are applied electrostatically and cured under heat, which may also present a risk of lead exposure if more than the allowable amount of lead is present. The definition is also not aligned with the definition of a surface coating material in the United States under 16 CFR Part 1303, which in this respect refers to coating materials that “change to a solid film” on application.
- Scope of affected consumer products — The scope of consumer products for which the total lead content in applied surface coating materials is restricted under the Surface Coating Materials Regulations is limited to products for children (including children's furniture), pencils and artist brushes. This product scope differs from the requirements in the United States' 16 CFR Part 1303, which also include furniture for consumer use. Health Canada does not have information regarding the actual levels of lead in applied surface coating materials on household furniture manufactured, imported, advertised or sold in Canada. However, furniture with a surface coating material containing total lead in excess of 90 mg/kg presents a risk of exposure to lead if the coating is disturbed in a way that allows it to be ingested, such as when a child mouths or chews on a furniture article or when the article is chipped or refinished.
- Inaccessible product parts — Applied surface coating materials containing total lead in excess of 90 mg/kg on inaccessible product parts, such as parts that are encased in a permanently sealed compartment and that do not become accessible during the reasonably foreseeable use of the product, do not present a risk of lead exposure. However, under the Surface Coating Materials Regulations, the Toys Regulations, the Carriages and Strollers Regulations, the Cribs, Cradles and Bassinets Regulations, the Expansion Gates and Expandable Enclosures Regulations and the Playpens Regulations, inaccessible product parts are subject to the lead requirements for applied surface coating materials. This has no health benefit for children and creates a burden on industry. This is also out of line with the lead requirements in the Consumer Products Containing Lead Regulations under the CCPSA and the general lead ban for children's products in the United States under the CPSIA, as they both exempt inaccessible parts.
- Test method — A test method for measuring the total lead content of an applied surface coating material on a product is not specified in the Surface Coating Materials Regulations. This may compromise children's health if unaccredited test methods that do not produce accurate, reliable and reproducible test results are used. In addition, the Toys Regulations, the Cribs, Cradles and Bassinets Regulations, the Expansion Gates and Expandable Enclosures Regulations and the Playpens Regulations contain a test method for certain harmful elements that is outdated and required only in Canada.
- Regulatory consistency — For consistency, the requirements for applied surface coating materials under the Toys Regulations, the Cribs, Cradles and Bassinets Regulations, the Expansion Gates and Expandable Enclosures Regulations and the Playpens Regulations will need consequential amendments. In so doing, children who use these products will have the same high level of protection from lead exposure as they do for products within the scope of the Surface Coating Materials Regulations. Consistent requirements across the regulations will also help industry understand the requirements and how they are applied by Health Canada.
- Note that the Carriages and Strollers Regulations set restrictions on the content of lead, mercury and certain other harmful elements in applied surface coating materials indirectly by referencing the applicable sections of the Toys Regulations. As a result, consequential amendments to the Carriages and Strollers Regulations will not be required.
To address these issues, the Regulations Amending Certain Regulations Made Under the Canada Consumer Product Safety Act (Surface Coating Materials) propose to modify the Surface Coating Materials Regulations in the following manner:
- In section 1, within the definition of a surface coating material, change the term “dries to a solid film” to “forms a solid film,” and indicate that the solid film is one that can be removed from the surface (such as by scraping or with solvents).
- In section 1, add a definition of an accessible part that is aligned with the Consumer Products Containing Lead Regulations, which is “any part of a product that may be touched, licked, mouthed or swallowed during the reasonably foreseeable use of the product.”
- In section 6,
- limit the requirement for total lead content to coatings applied to accessible parts of the products listed in this section;
- describe a coating applied to a product to mean a surface coating material as defined in section 1 as well as a sticker, film or other comparable material (such as a decal) that can be removed from the surface;
- add furniture to the products listed in this section (the common meaning of furniture will apply, so a regulatory definition is not required); and
- require testing to be done in accordance with a method that conforms to good laboratory practices as defined in section 1.
The Regulations Amending Certain Regulations Made Under the Canada Consumer Product Safety Act (Surface Coating Materials) also propose to modify the Toys Regulations, the Cribs, Cradles and Bassinets Regulations, the Expansion Gates and Expandable Enclosures Regulations and the Playpens Regulations in the following manner so that the requirements for applied surface coating materials are consistent with the Surface Coating Materials Regulations and each other:
- In section 1 of the Toys Regulations and the Expansion Gates and Expandable Enclosures Regulations, add a definition of good laboratory practices that is aligned with the definition in the Surface Coating Materials Regulations. The Cribs, Cradles and Bassinets Regulations and the Playpens Regulations already define this term.
- In section 23 of the Toys Regulations, section 3 of the Cribs, Cradles and Bassinets Regulations, section 2 of the Expansion Gates and Expandable Enclosures Regulations and section 3 of the Playpens Regulations,
- identify that a surface coating material and an accessible part have the same meaning as in section 1 of the Surface Coating Materials Regulations;
- describe a coating applied to a product to mean a surface coating material as well as a sticker, film or other comparable material (such as a decal) that can be removed from the surface;
- limit the requirements for total lead and mercury content and for the migration of any compound of antimony, arsenic, cadmium, selenium or barium to coatings applied to accessible parts of the products;
- require testing to be done in accordance with a method that conforms to good laboratory practices as defined in section 1; and
- delete the outdated hydrochloric acid test specified for measuring the migration of any compound of antimony, arsenic, cadmium, selenium or barium. Industry will be able to test with a method they commonly use for this purpose in the United States, the European Union or other jurisdictions, for example the methods set out in ASTM F963, Standard Consumer Safety Specification for Toy Safety, in EN 71-3, Safety of toys – Part 3: Migration of certain elements and in ISO 8124-3, Safety of toys — Part 3: Migration of certain elements.
The Regulations Amending Certain Regulations Made Under the Canada Consumer Product Safety Act (Surface Coating Materials) also propose the following housekeeping amendments:
- In section 5 of the Surface Coating Materials Regulations, correct a typographical error in the English version by replacing “more that 10 mg/kg total mercury” with “more than 10 mg/kg total mercury.”
- In section 23 of the Toys Regulations, section 3 of the Cribs, Cradles and Bassinets Regulations, section 2 of the Expansion Gates and Expandable Enclosures Regulations and section 3 of the Playpens Regulations,
- change the total mercury limit from 0 mg/kg to a technically feasible level of 10 mg/kg, which takes into account naturally occurring background mercury levels. This limit is appropriately protective of human health, and is the maximum allowable content of mercury in surface coating materials under the Surface Coating Materials Regulations and the current enforceable limit for total mercury in surface coating materials applied to products subject to the requirements of the Toys Regulations, the Cribs, Cradles and Bassinets Regulations, the Expansion Gates and Expandable Enclosures Regulations and the Playpens Regulations (as well as the Carriages and Strollers Regulations, which do not need to be amended, as noted previously); and
- express the migration limit for antimony, arsenic, cadmium, selenium and barium as 1 000 mg/kg instead of the current 0.1% weight/weight equivalent to be consistent with the units of measure for total lead (90 mg/kg) and total mercury (10 mg/kg).
Regulatory development
Consultation
Aside from contacting stakeholders during the cost-benefit analysis, Health Canada has not formally consulted with stakeholders on this regulatory proposal. However, this proposal has been posted on Health Canada's Forward Regulatory Plan since April 2018, and no stakeholders have raised any issues or concerns with Health Canada regarding the initiative. Additionally, no concerns with the proposed amendments were raised by stakeholders who participated in the cost-benefit analysis for this proposal, which included businesses from the affected industry sectors. One stakeholder from the toy sector indicated support for the Department's intent to discontinue the requirement for the hydrochloric acid test to assess the migration of antimony, arsenic, cadmium, selenium or barium from surface coating materials applied to toys and various other children's products.
Stakeholders being consulted on this regulatory proposal at the present time include
- businesses that manufacture, import, distribute, sell or advertise the products affected by this proposal, including paints and other surface coating materials, furniture, products for children, pencils and artist brushes;
- laboratories that test the products affected by this proposal;
- public interest groups that focus on public health, particularly that of children;
- the Canadian public, particularly parents and other caregivers of children; and
- other interested parties.
Modern treaty obligations and Indigenous engagement and consultation
In accordance with the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an initial assessment was conducted on this regulatory proposal. The assessment concluded that implementation of this proposal would be unlikely to impact on the rights, interests or self-government provisions of treaty partners. All people of Canada, including Indigenous peoples, would benefit from the product safety approach taken in this proposal to further reduce exposure to lead, mercury and certain other harmful elements in consumer products.
Instrument choice
Health Canada considered the following options:
- Maintain status quo — Health Canada would continue to monitor the compliance of surface coating materials, as currently defined in the Surface Coating Materials Regulations, and of products with an applied surface coating material that are currently regulated, and take corrective actions when necessary. For products that are subject to the Consumer Products Containing Lead Regulations or the Corded Window Coverings Regulations (in force on May 1, 2021), the allowable total lead limit indicated in these regulations applies to any accessible part of the product, including powder coating materials, stickers and films that are not covered by the Surface Coating Materials Regulations. For products that are subject to the Children's Jewellery Regulations, the allowable total lead limit applies to any part of the product. For other products found to contain more than 90 mg/kg total lead but that are not covered by the existing regulations — such as powder coating materials containing more than 90 mg/kg total lead; products for children, pencils or artist brushes with an applied sticker or film containing more than 90 mg/kg total lead; or items of furniture with an applied coating material containing more than 90 mg/kg total lead — the general prohibitions in sections 7 and 8 of the CCPSA could be relied upon to remove the products from the Canadian market. However, industry has indicated that regulations provide more clarity and transparency compared to the general prohibitions. The Department would continue to provide industry with information about their obligations under the CCPSA and its regulations.
- Some regulated parties may find it difficult to comply with requirements that are not clearly, completely and consistently defined. The requirements would also continue to apply to inaccessible parts and the outdated hydrochloric acid test would continue to be mandatory, both of which impose costs for industry without providing health benefits for consumers. For these reasons, maintaining status quo is not the preferred option.
- Amend the Surface Coating Materials Regulations and make consequential amendments to the surface coating material sections of the Toys Regulations, the Cribs, Cradles and Bassinets Regulations, the Expansion Gates and Expandable Enclosures Regulations and the Playpens Regulations — The preferred option is to amend existing regulatory requirements with relatively simple changes, which include modifying definitions, incorporating definitions and requirements from other regulations under the CCPSA, expanding the product scope and ensuring consistency across regulations. This option was chosen because clear and consistent regulatory requirements help regulated parties comply and also help Health Canada officials engaged in compliance and enforcement activities take quick corrective action in the event of non-compliance, which helps protect the health and safety of Canadians. Lead is a high priority health and safety concern due to its toxic effects, particularly in children. Lead is also a hidden hazard, meaning that consumers cannot identify whether a product contains lead by looking at it. Labelling for the presence of lead is one solution, and is an option for certain specialty surface coating materials for which suitable non-lead substitutes may not be available, as set out in subsection 2(2) of the Surface Coating Materials Regulations. However, labelling for the presence of lead is not a safe option for products with which children interact (such as toys) or to which they may otherwise be exposed (such as general household furniture).
Regulatory analysis
Benefits and costs
In 2019, Health Canada retained Cheminfo Services Inc. of Markham, Ontario, to analyze the costs and benefits associated with this regulatory proposal. The cost-benefit analysis (CBA) report is available upon request from the contact listed at the end of this Regulatory Impact Analysis Statement.
Costs
Between June and October 2019, 63 businesses and associations that would be impacted by this regulatory proposal were contacted and asked to complete a questionnaire focused on identifying cost impacts. The responses are summarized as follows:
- four powder coating suppliers indicated that their powder coatings sold in Canada already meet the proposed requirements and they will not face significant costs as a result of this proposal;
- four furniture suppliers indicated that the surface coating materials on their products sold in Canada already meet the proposed requirements and/or they will not face significant costs as a result of this proposal;
- two suppliers of pencils and/or artist brushes indicated that the surface coating materials on their products sold in Canada already meet the proposed requirements and/or they will not face significant costs as a result of this proposal;
- three toy suppliers, and one toy association on behalf of its members, indicated that the surface coating materials on their products sold in Canada already meet the proposed requirements and they will not face significant costs as a result of this proposal; and
- of six suppliers of cribs, playpens, expansion gates and/or strollers, five suppliers indicated that the surface coating materials on their products sold in Canada already meet the proposed requirements and one supplier indicated that they do not meet the requirements. Ten-year costs across the four product groups, based on the survey responses and extrapolated to the national market, were estimated to be $2,645,000 (2019 Canadian dollars), and were highest for suppliers of cribs and expansion gates ($1,255,000 and $915,000, respectively) and lowest for suppliers of playpens and strollers ($365,000 and $110,000, respectively). According to the suppliers, these costs would cover modifications to surface coating materials to meet the proposed requirements, oversee compliance and test to good laboratory practices. Most costs would be incurred the year before the amendments came into force. For additional details of the estimated costs, refer to tables 1 – 3 in the “Cost-benefit analysis” section.
The CBA assumed no incremental costs to Government as a result of this proposal. The costs to administer, promote and enforce the amended regulations would become part of Health Canada's existing compliance and enforcement program for consumer products.
Benefits
This regulatory proposal is expected to generate benefits primarily by reducing the adverse health effects in Canadians caused by exposure to lead, mercury and certain other harmful elements. The main target of lead is the nervous system, both in children and adults. Even low levels of lead exposure can affect a child's mental and physical development, with small but measurable effects on cognition (for example reduced performance on standardized tests of general intellectual ability) and behaviour (for example attention disorders and delinquency). At high levels of exposure, lead can damage the brain and kidneys in both children and adults, and cause miscarriage and stillbirths in pregnant women, infertility in both women and men, and death. Although the lead content is already regulated in many surface coating materials and products with an applied surface coating material, this proposal will require industry to restrict the use of lead in a broader range of products. It will also give Health Canada the authority to identify products within this broader range of products that contain more than the maximum allowable content of lead and quickly take enforcement action to reduce the likelihood of exposure.
This regulatory proposal may also have economic benefits in terms of cost savings for some Canadian suppliers of children's products, pencils, artist brushes and furniture by removing requirements for applied surface coating materials on parts of products that are non-accessible during the reasonably foreseeable use of the product and by deleting the outdated hydrochloric acid test for certain harmful elements and allowing testing to be done in accordance with international standards. These benefits were not quantified or monetized.
Cost-benefit analysis
An accounting statement for the 10-year period from 2021 to 2030 is provided in tables 1, 2.1 and 2.2, and a breakdown of estimated costs by activity for the sectors most impacted by this regulatory proposal is provided in Table 3. To calculate the costs, it was assumed that the proposed amendments would come into force at the beginning of 2022 and that (1) one-time costs of coming into compliance would be carried in 2021, before the amendments come into force; (2) annual costs of compliance would be carried starting in 2021 to ensure that products are compliant when the amendments come into force; and (3) testing costs would be carried in 2021 and every two years thereafter.
As shown in the tables, it is estimated that the proposed regulatory amendments would have 10-year costs of $2,645,000 (2019 Canadian dollars) or 10-year discounted costs of $1,767,081 (2019 Canadian dollars discounted at an annual rate of 7%). It is possible that some Canadian retailers have inventory of non-compliant products that cannot be sold before the regulatory amendments come into force and must be disposed of, which would be an additional but unknown cost.
As noted in the “Costs” section above, costs would be negligible for suppliers of surface coating materials, furniture, pencils, artist brushes and toys. For suppliers of cribs, cradles and bassinets; playpens; expansion gates and expandable enclosures; and carriages and strollers, costs would be relatively small and can be passed on to Canadian consumers of the affected products, but the increase in consumer costs is expected to be insignificant.
The most significant impacts are expected in Canada's furniture manufacturing sector since about 95% of the costs of this regulatory proposal are attributed to costs to manufacturers of cribs, cradles and bassinets; playpens; and expansion gates and expandable enclosures, which are subsectors of the furniture manufacturing sector. The largest impacts would be in Quebec and Ontario, where most of the manufacturers are located.
It is noted in the CBA report that the results of this analysis are based on relatively few inputs from stakeholders, and are therefore subject to a relatively wide margin of error.
| Category | Year 1 (2021) |
Year 2 (2022) |
Year 3 (2023) |
Year 10 (2030) |
10 Year total |
Total PV table b1 note a | Annualized value table b1 note b |
|---|---|---|---|---|---|---|---|
| Benefits | not quantified | not quantified | not quantified | not quantified | not quantified | not quantified | not quantified |
| Costs | $397,000 | $200,000 | $312,000 | $200,000 | $2,645,000 | $1,767,081 | $235,652 |
| Net benefits | not quantified | not quantified | not quantified | not quantified | not quantified | not quantified | not quantified |
Table b1 note(s)
|
|||||||
| Category | Year 1 (2021) |
Year 2 (2022) |
Year 3 (2023) |
Year 10 (2030) |
10 Year total |
Total PV table b2 note a | Annualized value table b2 note b |
|---|---|---|---|---|---|---|---|
| Small firms | $391,839 | $197,400 | $307,944 | $197,400 | $2,610,615 | $1,744,109 | $232,589 |
| Medium firms | $4,764 | $2,400 | $3,744 | $2,400 | $31,740 | $21,205 | $2,828 |
| Large firms | $397 | $200 | $312 | $200 | $2,645 | $1,767 | $236 |
| Total | $397,000 | $200,000 | $312,000 | $200,000 | $2,645,000 | $1,767,081 | $235,652 |
Table b2 note(s)
|
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Notes:
- Costs are allocated to firms by size based on the proportion of small, medium and large firms in North American Industry Classification System (NAICS) 3371 (Household and Institutional Furniture and Kitchen Cabinet Manufacturing)
- Impacts on consumers: Very small (average annual costs of $265,000 mean yearly costs of less than 1% per Canadian)
- Impacts on governments: Nil
- Impacts on the environment: Minimal (but positive through avoided use of certain hazardous elements such as lead and mercury)
| Category | Year 1 (2021) |
Year 2 (2022) |
Year 3 (2023) |
Year 10 (2030) |
10 Year total |
Total PV table b3 note a | Annualized value table b3 note b |
|---|---|---|---|---|---|---|---|
| Atlantic | $14,356 | $7,232 | $11,282 | $7,232 | $95,647 | $63,900 | $8,522 |
| Quebec | $143,146 | $72,114 | $112,498 | $72,114 | $953,708 | $637,157 | $84,969 |
| Ontario | $137,763 | $69,402 | $108,267 | $69,402 | $917,841 | $613,194 | $81,774 |
| Prairies | $45,691 | $23,018 | $35,908 | $23,018 | $304,414 | $203,374 | $27,121 |
| British Columbia | $55,630 | $28,025 | $43,719 | $28,025 | $370,631 | $247,613 | $33,021 |
| Territories | $414 | $209 | $325 | $209 | $2,759 | $1,843 | $246 |
| Total | $397,000 | $200,000 | $312,000 | $200,000 | $2,645,000 | $1,767,081 | $235,652 |
Table b3 note(s)
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Notes:
- Costs are allocated to the regions based on the regional proportion of businesses in NAICS 3371 (Household and Institutional Furniture and Kitchen Cabinet Manufacturing)
- Impacts on consumers: Very small (average annual costs of $265,000 mean yearly costs of less than 1% per Canadian)
- Impacts on governments: Nil
- Impacts on the environment: Minimal (but positive through avoided use of certain hazardous elements such as lead and mercury)
| Type of cost | Cribs | Playpens | Expansion gates | Strollers | Total |
|---|---|---|---|---|---|
| One-time compliance costs | $55,000 | $15,000 | $15,000 | $0 | $85,000 |
| Annual compliance costs | $65,000 | $35,000 | $90,000 | $10,000 | $200,000 |
| Biennial good laboratory practice testing costs | $110,000 | $0 | $0 | $2,000 | $112,000 |
| Total first-year costs (2021) | $230,000 ($200,891) |
$50,000 ($43,672) |
$105,000 ($91,711) |
$12,000 ($10,481) |
$397,000 ($346,755) |
| Total 10-year costs (2021 – 2030) | $1,255,000 ($847,939) |
$365,000 ($242,845) |
$915,000 ($603,870) |
$110,000 ($72,427) |
$2,645,000 ($1,767,081) |
Notes:
- Values are in 2019 Canadian dollars, except for the values in parentheses, which are in 2019 Canadian dollars discounted at an annual rate of 7%.
- Time period: 2021 – 2030 (assuming the proposed amendments come into force early in 2022)
Small business lens
While no noticeable differences in compliance costs have been identified between individual businesses, total costs are still estimated to be highest for small businesses since 98.7% of businesses in the sectors most impacted by this regulatory proposal are small. An allocation of total costs to small, medium and large businesses is included in tables 2.1 and 2.2.
According to the CBA report, many industry members already comply with the proposed requirements. Nevertheless, Health Canada is proposing that the Regulations Amending Certain Regulations Made Under the Canada Consumer Product Safety Act (Surface Coating Materials) come into force on the 180th day after the day on which they are published in the Canada Gazette, Part II, to give small businesses sufficient time to comply with the new requirements. Cost savings from the deletion of the hydrochloric acid test for certain harmful elements in applied surface coating materials and from the removal of requirements for applied surface coating materials on inaccessible parts of products will also help to reduce the burden on small businesses.
One-for-one rule
This regulatory proposal does not affect the administrative burden on businesses, as there are no associated reporting or record-keeping requirements. Health Canada is not proposing new or incremental requirements to demonstrate compliance, including collecting, processing, reporting or retaining information.
Regulatory cooperation and alignment
Both Canada and the United States stringently regulate the maximum allowable lead content in surface coating materials and in applied surface coating materials on various consumer products. This regulatory proposal improves alignment and reduces existing gaps in the regulatory framework between the two countries, for example by expanding the meaning of a surface coating material, adding furniture to the product scope and removing requirements for coating materials on non-accessible parts of products. This is expected to facilitate trade with the United States. In addition, requiring testing to good laboratory practices allows for testing to international standards, and deleting the hydrochloric acid test for certain harmful elements in applied surface coating materials, which is specified only under Canadian regulations, removes any need for trading partners who have tested to the requirements of another jurisdiction to do additional testing on products imported into Canada. However, some differences remain between Canada and the United States in the regulation of applied surface coating materials, such as Canada's restriction on lead in applied surface coating materials on all pencils and artist brushes, which has been in force since 1973 to protect Canadian children from the potential of lead exposure from mouthing or chewing on these products.
Strategic environmental assessment
In accordance with the Government of Canada's Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a strategic environmental assessment (SEA) preliminary scan concluded that a SEA detailed analysis is not required.
Gender-based analysis plus (GBA+)
Lead can be harmful to the health of people of all ages, but infants and children are especially susceptible to the neurodevelopmental effects of lead exposure, such as developmental delays, attention-related behaviours and learning difficulties. Compared to adults, children absorb more lead through the gastrointestinal tract and excrete less lead through the kidneys, and their developing organs and systems are more susceptible to lead's toxic effects. Furthermore, lead builds up in the body, so that ongoing exposure to even low levels of lead may be harmful. Young children also have a higher probability of lead exposure compared to older children and adults because of their natural exploratory behaviour, which leads them to chew or suck on any objects within their reach. Lead has a sweet taste and this can encourage children to lick, chew or suck on items containing it. This mouthing behaviour could result in lead ingestion.
According to the Government of Canada's Final Human Health State of the Science Report on Lead published in 2013, the selection of children as a susceptible subpopulation is considered to be protective for adverse effects of lead across the entire population.footnote 1
Implementation, compliance and enforcement, and service standards
The regulatory proposal would be made under the authority of the CCPSA, and would come into force on the 180th day after the day on which it is published in the Canada Gazette, Part II. During the period between publication in the Canada Gazette, Part II, and the coming-into-force date, the existing regulations would remain in force.
Health Canada would develop information materials to help industry stakeholders understand and comply with the amended requirements. The test methods used by Health Canada's Product Safety Laboratory to determine total lead (methods C02.2, C02.2.1, C02.2.2), migratable arsenic, selenium, cadmium, antimony and barium (Method C03) and total mercury (Method C07) in surface coating materials and related materials (such as stickers and films) are available upon request from the Government of Canada.footnote 2
Compliance and enforcement activities would follow established Health Canada approaches and procedures, including sampling and testing of products, inspections at business locations, follow-up on incidents reported by the Canadian public and public health organizations, and follow-up on mandatory incident reports by industry. Non-compliant products would be subject to the enforcement actions available to Health Canada inspectors under the CCPSA, and may include voluntary commitment to product correction by industry, negotiation with industry for the voluntary removal of non-compliant products from the market, seizure, orders for recall or other measures, administrative monetary penalties or prosecution.
Contact
Paul Chowhan
Consumer and Hazardous Products Safety Directorate
Healthy Environments and Consumer Safety Branch
Health Canada
269 Laurier Avenue West
Ottawa, Ontario
K1A 0K9
Address Locator: 4908B
Email: hc.ccpsa-lcspc.sc@canada.ca
PROPOSED REGULATORY TEXT
Notice is given that the Administrator in Council, pursuant to section 37footnote a of the Canada Consumer Product Safety Actfootnote b, proposes to make the annexed Regulations Amending Certain Regulations Made Under the Canada Consumer Product Safety Act (Surface Coating Materials).
Interested persons may make representations concerning the proposed Regulations within 70 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Paul Chowhan, Manager, Risk Management Strategies Division, Consumer and Hazardous Products Safety Directorate, Healthy Environments and Consumer Safety Branch, Department of Health, Mail Stop: 4908B, 269 Laurier Avenue West, Ottawa, Ontario K1A 0K9 (email: hc.ccpsa-lcspc.sc@canada.ca).
Ottawa, April 15, 2021
Julie Adair
Assistant Clerk of the Privy Council
Regulations Amending Certain Regulations Made Under the Canada Consumer Product Safety Act (Surface Coating Materials)
Toys Regulations
1 (1) Paragraph (b) of the definition good scientific practices in section 1 of the Toys Regulationsfootnote 3 is replaced by the following:
- (b) for laboratory practices, good laboratory practices. (bonnes pratiques scientifiques)
(2) Section 1 of the Regulations is amended by adding the following in alphabetical order:
- good laboratory practices
- means practices that are in accordance with the principles set out in the Organisation for Economic Co-operation and Development document entitled OECD Principles of Good Laboratory Practice, Number 1 of the OECD Series on Principles of Good Laboratory Practice and Compliance Monitoring, ENV/MC/CHEM(98)17, the English version of which is dated January 21, 1998 and the French version of which is dated March 6, 1998. (bonnes pratiques de laboratoire)
2 Section 23 of the Regulations is replaced by the following:
Stickers, films and surface coating materials
23 (1) A sticker, film or other similar material that can be removed, or a surface coating material, that is applied to an accessible part of a toy must not contain, when it is tested in accordance with a method that conforms to good laboratory practices,
- (a) more than 90 mg/kg total lead;
- (b) any compound of antimony, arsenic, cadmium, selenium or barium if more than 1 000 mg/kg of the compound migrates from the material; or
- (c) more than 10 mg/kg total mercury.
Definition of accessible part and surface coating material
(2) For the purposes of subsection (1), accessible part and surface coating material have the same meanings as in section 1 of the Surface Coating Materials Regulations.
Cribs, Cradles and Bassinets Regulations
3 Section 3 of the Cribs, Cradles and Bassinets Regulationsfootnote 4 is replaced by the following:
Stickers, films and surface coating materials
3 (1) A sticker, film or other similar material that can be removed, or a surface coating material, that is applied to an accessible part of a crib, cradle, bassinet, accessory or stand must not contain, when it is tested in accordance with a method that conforms to good laboratory practices,
- (a) more than 90 mg/kg total lead;
- (b) any compound of antimony, arsenic, cadmium, selenium or barium if more than 1 000 mg/kg of the compound migrates from the material; or
- (c) more than 10 mg/kg total mercury.
Definition of accessible part and surface coating material
(2) For the purposes of subsection (1), accessible part and surface coating material have the same meanings as in section 1 of the Surface Coating Materials Regulations.
Expansion Gates and Expandable Enclosures Regulations
4 Section 1 of the Expansion Gates and Expandable Enclosures Regulationsfootnote 5 is amended by adding the following in alphabetical order:
- good laboratory practices
- means practices that are in accordance with the principles set out in the Organisation for Economic Co-operation and Development document entitled OECD Principles of Good Laboratory Practice, Number 1 of the OECD Series on Principles of Good Laboratory Practice and Compliance Monitoring, ENV/MC/CHEM(98)17, the English version of which is dated January 21, 1998 and the French version of which is dated March 6, 1998. (bonnes pratiques de laboratoire)
5 Section 2 of the Regulations is replaced by the following:
Stickers, films and surface coating materials
2 (1) A sticker, film or other similar material that can be removed, or a surface coating material, that is applied to an accessible part of an expansion gate or an expandable enclosure must not contain, when it is tested in accordance with a method that conforms to good laboratory practices,
- (a) more than 90 mg/kg total lead;
- (b) any compound of antimony, arsenic, cadmium, selenium or barium if more than 1 000 mg/kg of the compound migrates from the material; or
- (c) more than 10 mg/kg total mercury.
Definition of accessible part and surface coating material
(2) For the purposes of subsection (1), accessible part and surface coating material have the same meanings as in section 1 of the Surface Coating Materials Regulations.
Surface Coating Materials Regulations
6 (1) The definition surface coating material in section 1 of the Surface Coating Materials Regulationsfootnote 6 is replaced by the following:
- surface coating material
- means a paint or other similar material, with or without pigment, that forms a solid film after it is applied to a surface and that can be removed. (revêtement)
(2) Section 1 of the Regulations is amended by adding the following in alphabetical order:
- accessible part
- means any part of a product that may be touched, licked, mouthed or swallowed during the reasonably foreseeable use of the product. (partie accessible)
7 Section 5 of the English version of the Regulations is replaced by the following:
Mercury content and test method
5 A surface coating material must not contain more than 10 mg/kg total mercury when a dried sample is tested in accordance with a method that conforms to good laboratory practices.
8 Section 6 of the Regulations and the heading before it are replaced by the following:
Products With Applied Stickers, Films or Surface Coating Materials
Lead content
6 A sticker, film or other similar material that can be removed, or a surface coating material, that is applied to an accessible part of the following products must not contain more than 90 mg/kg total lead when it is tested in accordance with a method that conforms to good laboratory practices:
- (a) furniture;
- (b) products for children;
- (c) pencils; and
- (d) artist brushes.
Playpens Regulations
9 Section 3 of the Playpens Regulationsfootnote 7 is replaced by the following:
Stickers, films and surface coating materials
3 (1) A sticker, film or other similar material that can be removed, or a surface coating material, that is applied to an accessible part of a playpen or accessory must not contain, when it is tested in accordance with a method that conforms to good laboratory practices,
- (a) more than 90 mg/kg total lead;
- (b) any compound of antimony, arsenic, cadmium, selenium or barium if more than 1 000 mg/kg of the compound migrates from the material; or
- (c) more than 10 mg/kg total mercury.
Definition of accessible part and surface coating material
(2) For the purposes of subsection (1), accessible part and surface coating material have the same meanings as in section 1 of the Surface Coating Materials Regulations.
Coming into Force
10 These Regulations come into force on the 180th day after the day on which they are published in the Canada Gazette, Part II.
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