In February 2018, at the International Consumer Product Health and Safety Organization’s (ICPHSO) Annual Meeting, the U.S. Consumer Product Safety Commission (CPSC), the Department of Health of Canada (Health Canada), and the Consumer Protection Federal Agency of the United Mexican States (PROFECO) signed a trilateral Memorandum of Understanding (MOU) committing to increasing cross-border cooperation. The MOU was “intended to memorialize cooperative efforts already underway, as well as to facilitate future joint activities,” all with the goal of advancing the flow of consumer products throughout North America.

As a follow-up to the MOU signing at ICPHSO, the CPSC hosted the 4th North America Consumer Product Safety Summit (Summit) on May 3 and 4, 2018, at CSPC headquarters in Bethesda. Previous summits were held in 2011 at the CPSC, 2013 in Ottawa, and 2015 in Mexico. The goal of the 2018 Summit was to build on the momentum of trilateral cooperation among the three product safety regulators. On May 3, closed-door meetings were held between the government representatives of the three nations, while the meetings on May 4 were open to the public. The May 4th public Agenda included sessions on: North American regulatory cooperation; e-commerce challenges and opportunities; updates on high-energy Lithium-Ion battery hazards and risks; and a final panel soliciting feedback from North American stakeholders. Presenters included: various representatives from the CPSC, Health Canada and PROFECO, as well as industry representatives.

Trilateral Recalls and Enforcement

During the Summit, each jurisdiction spoke about various recalls and how it engages with industry, both jointly and separately, when companies are reporting product safety incidents to the government or negotiating joint recalls across North American jurisdictions.

There is significant collaboration in recalls among the three North American consumer product safety regulators. According to the CPSC recall listings, an example of a recent trilateral recall was in November 2017 when Kidde recalled fire extinguishers simultaneously in Canada, the U.S., and Mexico. The press release indicated that there were approximately 37.8 million units recalled in the U.S., 2.7 million recalled in Canada, and 6,730 recalled in Mexico. According to PROFECO’s information, since 2013 it has performed 22 trilateral joint recalls with Health Canada and the CPSC. Thirteen of these recalls were announced simultaneously in the three markets, eight were coordinated but not simultaneous, and one was just between the CPSC and PROFECO. Further review of the CPSC recalls page reveals that most joint recalls are announced with Health Canada.

During the Summit, the government panelists spent significant time discussing their agencies’ coordinated efforts on recalls for lithium-ion batteries and AC chargers. These products present a high likelihood of future recalls and, based on current levels of cooperation, the agencies will be well situated to leverage their established technical and diplomatic relationships if (or when) such recalls are necessary.

The Future Is Now – e-commerce

The e-commerce panelists all agreed that today’s consumers utilize e-commerce sites across the globe and the frequency of such use is exponentially increasing every day. Thus, the old ways of understanding consumer purchases by regulating the brick and mortar stores in a specific area are out-of-date and ineffective. They also agreed that although e-commerce sites present unique challenges, they also create interesting opportunities to increase product safety. For example, e-commerce sites retain customer information and analyze consumer online habits – information that can potentially be used to promote more effective recalls. Using this data to reach customers in the U.S., Canada, and Mexico in real-time in connection with a trilateral recall would be a dramatic improvement to how companies and regulators conduct recalls today.

One notable development in the e-commerce area that was mentioned multiple times during the Summit is the establishment of an ICPHSO task force to develop a safety process standard for innovative products and innovative features of existing products. The task force will hold its inaugural meeting at ICPHSO’s Northwest Regional Product Safety Training Workshop on June 18th in Seattle, and Venable will participate.

Only Time Will Tell

Immediately following the 2018 Summit, the CPSC, PROFECO, and Health Canada issued a press release listing areas in which the three regulators have committed to work together to the extent possible, including: issuing joint recalls; developing regulators’ joint capacity to engage in cross-border product safety and customs cooperation; creating joint outreach activities to conduct training and promote consumer awareness; promoting collaboration across different technical areas; holding technical consultations and sharing best practices on issues of mutual interest; identifying new and emerging issues of concern; and sharing updates or proposed changes to relevant legislation, regulation, standards, and conformity assessment procedures.

Acting CPSC Chairwoman Buerkle has clearly made it her priority to engage with all stakeholders, including her counterparts in North America, in connection with product safety issues. Whether that means issuing trilateral best practices or interpretative guidance in a coordinated manner on new and emerging issues, such as the safety implications of Internet of Things technology, or jointly engaging in voluntary standards work and informing the appropriate committees of their joint preferences, is yet to be seen.

For significant progress to be made, North American stakeholders must proactively engage with all three governments, providing them with:

  1. concrete ideas for bilateral and trilateral work plans for greater cooperation;
  2. gap analyses between U.S., Canadian, and/or Mexican technical regulation and conformity assessment systems;
  3. quantitative assessments of the unnecessary costs of inconsistency and duplication; and
  4. strategies for promoting greater alignment – especially in new and emerging technologies – such as joint pre-regulatory activities and the use of voluntary consensus standards and private sector conformity assessment schemes.

Industry stakeholders that choose to work with regulators to achieve consensus on these international product safety and standards-related issues will find regulators eager to work with them.

Venable has an experienced team of product safety and international trade practitioners who are actively monitoring any developments on North American product safety regulatory cooperation and who are available to advise on these or related issues.