Vol. 151, No. 21 — October 18, 2017
SOR/2017-220 October 5, 2017
PEST CONTROL PRODUCTS ACT
Regulations Amending the Pest Control Products Regulations (Personal Use Import Exemption)
P.C. 2017-1230 October 5, 2017
Her Excellency the Governor General in Council, on the recommendation of the Minister of Health, pursuant to section 67 (see footnote a) of the Pest Control Products Act (see footnote b), makes the annexed Regulations Amending the Pest Control Products Regulations (Personal Use Import Exemption).
Regulations Amending the Pest Control Products Regulations (Personal Use Import Exemption)
1 Paragraph 3(1)(f) of the Pest Control Products Regulations (see footnote 1) is replaced by the following:
- (f) a pest control product, other than an organism or a device of a type described in Schedule 1, that is imported into Canada by a user for their personal use, that is in their personal possession at the time of the importation and that meets the following conditions:
- (i) the total quantity of the product does not exceed 500 g or 500 mL,
- (ii) by virtue of its active ingredient and concentration, the product would have the product class designation “DOMESTIC” if it were registered in Canada,
- (iii) the product is registered or otherwise authorized in the country of origin as a product equivalent to a pest control product,
- (iv) the product is in its original package with the original label intact,
- (v) the information on the package and label is in either English or French, is clear and legible, allows for the determination of the active ingredient, concentration and quantity of the product and includes the registration or authorization number assigned by the regulatory body in the country of origin.
2 Schedule 1 to the Regulations is amended by replacing the references after the heading “SCHEDULE 1” with the following:
(Paragraphs 3(1)(a) and (f) and section 30)
Coming into Force
3 These Regulations come into force on the day that, in the sixth month after the month in which they are published in the Canada Gazette, Part II, has the same calendar number as the day on which they are published or, if that sixth month has no day with that number, the last day of that sixth month.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
The intention of the personal import exemption in the Pest Control Products Regulations (PCPRs) is to permit travellers to bring small quantities of unregistered pest control products that they might be carrying and that do not pose an unacceptable risk (such as personal insect repellants equivalent to those approved for use in Canada) into Canada legally without undermining the regulatory regime set out in the Pest Control Products Act (PCPA). However, the current scope of the exemption poses risks to human health, the environment, and the integrity of the pest control products regulatory regime.
Risks to human health and the environment
The current wording of the exemption refers to where the imported pest control product would be used (i.e. in and around the home), rather than the type of pest control product that can be imported. Therefore, it does not prevent Canadians from legally importing into Canada pest control products that either pose an unacceptable risk, and hence would not be registered for use in Canada; or that require special equipment and training to be used safely, and hence would not be available to the general public in Canada (i.e. commercial or restricted class products). As a result, neither Health Canada nor the Canada Border Service Agency (CBSA) has the authority under the PCPA to refuse entry of such products if they meet the exemption criteria (i.e. products primarily for use by the importer in or around the home, in a quantity of 500 mL or 500 g or less, and a value of $100 or less).
Furthermore, because the current wording of the exemption does not specify the mode of importation, it does not prohibit the online purchase (e.g. from a foreign website) and importation (e.g. by mail or courier) of an unregistered pest control product or a product intended for commercial or restricted uses. The possibility of Internet sales and the potential threats such sales could pose to human health and the environment were not envisaged when the exemption was created in 1972.
Via online sales, Canadian consumers have access to a wide range of products, including many potentially dangerous unregistered products, from around the world. For example, Health Canada has identified over 3 000 pest control products for sale on foreign online retail websites, and many of these products could be unregistered in Canada. Furthermore, Health Canada has noticed that the number of potentially dangerous products being imported has been increasing along with the growth of imports via courier and post. Products that have been referred to Health Canada by the CBSA from the courier/mail stream include restricted class fumigants as well as various commercial class products intended to be used by licensed applicators with the appropriate training and equipment. The personal use of commercial or restricted class products and/or products containing unregistered active ingredients has the potential for risks to human health (e.g. applicator exposure), as well as environmental risks (spray drift, run-off, etc.). However, as noted above, Health Canada and the CBSA only have the authority to refuse entry of such products when they do not meet the current criteria (e.g. because the package exceeds the volume restriction).
Finally, the third-party transport of potentially dangerous (and potentially misdeclared and/or mislabelled) pest control products creates potential risks to human health for the entire chain of custody once the product enters Canada (e.g. for warehouse employees, shipping and postal workers, compliance and enforcement officers, border services officers and importers).
Integrity of the pest control regulatory regime
Internet purchase and third-party importation of unregistered pest control products poses two main threats to the integrity of the pest control product regime. First, importers can circumvent the quantity limit set out in the exemption by placing many separate orders via the Internet. This allows individuals and businesses to import virtually unlimited quantities of unregistered products for possible commercial use or resale — both of which contradict the “personal use” criterion and intent of the exemption. Thus, Internet sales undermine the effectiveness of the conditions put on the exemption.
Second, the exemption was intended to be sufficiently narrow (e.g. restricted to travellers importing small quantities of pesticides on their person) that the small quantity of unregistered products that would enter Canada via the exemption would not undermine the integrity of the regulatory regime that is based on a general prohibition set out in the PCPA, which states that “no person shall manufacture, possess, handle, store, transport, import, distribute or use” unregistered pesticides [emphasis added]. However, as Internet sales allow individuals and businesses to import virtually unlimited quantities of unregistered products, unregistered products could become a larger part of the Canadian pesticide market and of pesticide use in Canada. This could have negative commercial impacts for Canadian pesticide manufacturers and vendors, due to lost sales, and potential negative health or environmental impacts, given that the products have not been subject to the evaluation required for registration in Canada.
The personal use import exemption requires modernizing to ensure health and the environment continue to be protected and the regulatory regime is not undermined given growing public access to foreign pest control products as a result of increasing Internet sales and greater international travel.
Under section 6 of the current PCPA, it is prohibited to manufacture, possess, handle, store, transport, import, distribute or use a pest control product that is not registered under the PCPA, except as authorized by the PCPRs. A pest control product is only registered once the Minister of Health has determined that risks to human health and the environment are acceptable when the product is used according to label directions and that the product has value (e.g. its actual or potential contribution to pest management). A prohibition against the import of unregistered pest control products has been in place since the first pest control legislation was enacted in 1927.
In 1972, a personal use import exemption was introduced into the PCPRs (SOR/72-451) under the PCPA. The intention of the exemption was to permit individual travellers, who often carry with them small quantities of pest control products (such as personal insect repellants), to bring those products into Canada legally. Such products were generally considered to be of acceptable risk, and the exemption was considered to be sufficiently narrow that the small quantity of unregistered products that would enter Canada via the exemption would not undermine the integrity of the regulatory regime.
In 1995, the personal use import exemption underwent minor revisions to convert the units of measurement from imperial to metric (pounds and pints to grams and millilitres). In 2006, the PCPRs were reviewed and revised as part of the process to bring the new PCPA into force. At that time, the exemption was updated to address price changes since 1972 (the value component was raised from $10 to $100) and to help protect health and the environment by limiting the type of products that could be imported via the exemption to products similar to Canadian “domestic class” products, which Health Canada considered did not present an unacceptable risk. Therefore, part of the definition of domestic class products (i.e. products “for use in or around the home”) was added to the list of criteria for a product to be exempt. However, it has since been determined that “for use in or around the home” is not sufficient to prevent products with unacceptable risks from being imported via the exemption.
As a result, the exemption was amended in 2006 to read (and currently reads) as follows:
The following pest control products are exempt from the application of the Act:
- (f ) a pest control product, other than an organism, that is imported into Canada primarily for use by the importer in or around the home, if the quantity being imported is not more than 500 g or 500 mL and the value of the quantity imported is not more than $100.
The objective of the amendment is to protect human health and the environment by reducing the likelihood of pest control products with unacceptable risks being legally imported via the personal use import exemption in the PCPRs, while ensuring that regulatory integrity is maintained. The amendment clarifies the intent of the exemption by clearly defining the criteria required for the personal importation of unregistered pest control products into Canada by travellers. The amendment also modernizes the exemption to ensure that it is reflective of the current marketplace (i.e. increased access to products via the Internet and increased travel) and does not result in the regulatory regime being undermined (e.g. by circumventing the quantity limits set for the exemption, or the PCPA’s registration regime by using the exemption to import large quantities of unregistered products for possible commercial use or resale). The amendment will also help importers (e.g. travellers) and vendors better understand the types of products that can be legally imported via the exemption, making it easier to comply with and enforce.
Paragraph 3(1)(f) of the PCPRs is replaced with a new paragraph that outlines the following criteria for exempting certain imported pest control products from the PCPA.
- A pest control product, other than an organism or a device
- This wording is consistent with the current wording in the PCPRs, but clarifies that devices are not subject to the exemption, which is how the exemption has been interpreted and enforced for many years.
- Imported directly by the user for their own personal use
- This new criterion helps ensure that the product is being imported physically by the importer for the importer’s own use and not for resale or use by another person. This change is intended to help ensure the integrity of the regulatory regime by preventing the exemption from being used to import products via Internet sales shipped to Canada via a third party, to circumvent the quantity limits set out for the exemption or to import large quantities of unregistered pesticides, including for possible resale or commercial use. This provision will therefore help ensure the effectiveness of the conditions of the exemption and protect the integrity of the regulatory regime.
- The product contains an active ingredient and is of a concentration equivalent to that of a currently registered “domestic” class product
- The intention of this revised criterion is to restrict the type of products that can be imported to those that are currently available to the Canadian general public (i.e. domestic class) to help ensure that products not equivalent to a Canadian-registered product are not imported and that restricted or commercial class registered products are not being legally imported by the public, who may not have the training, equipment or experience required to use such products safely.
- The total quantity of the product does not exceed 500 g or 500 mL per person
- This criterion retains the quantity and volume criteria, while clarifying that they apply on a per-person and per-package basis (e.g. two people cannot “share” a larger container). The value criterion (not more than $100) has been removed from the exemption as it is difficult to verify (receipts are required to verify value, the conversion of currency is required, etc.) and does not further limit the types of products eligible under the exemption.
- The pest control product must be in original packaging with the original label intact
- This new criterion facilitates compliance and enforcement by allowing Canadian officials (e.g. Canadian Border Services Agency officers) to confirm the active ingredient, concentration and quantity of the product contained within the packaging.
- The packaging and labelling must be in at least one of Canada’s official languages
- This new criterion facilitates compliance and enforcement by ensuring the packaging/labelling can be read and understood by Canadian officials, allowing them to confirm the active ingredient, concentration and quantity of the product contained within the packaging.
- The product must be registered or otherwise authorized as a pest control product in the country of origin (i.e. has a government registration number on its packaging/label)
- This new criterion helps ensure the product has been assessed and approved for use by a regulatory authority.
The “One-for-One” Rule does not apply to this amendment, as there is no change in administrative costs to, or burden on, business.
Small business lens
The small business lens does not apply to this amendment, as there are no costs to small business.
The main Canadian industry associations for pest control product manufacturers were consulted on the proposed amendment to the personal use import exemption in the fall of 2016. Neither expressed any major concerns with the proposal.
The proposed amendment was prepublished in the Canada Gazette, Part I, on February 11, 2017, followed by a 30-day consultation period. During the Canada Gazette, Part I, consultation period, Health Canada received comments from one stakeholder. The stakeholder indicated that active ingredient and concentration should be removed from the criterion that specifies that the product must be equivalent to a currently registered domestic class product. The active ingredient and concentration information are used to define what is meant by equivalent to a domestic-class product. Without these qualifying words, it would be difficult to determine the basis on which the product is considered to be equivalent and would lead to ambiguity in interpreting the requirement. Health Canada is confident that products that are equivalent to Canadian registered domestic class products (i.e. same active ingredient and concentration) will not pose an unacceptable risk to human health or the environment if used appropriately since the equivalent Canadian registered domestic class product has already been evaluated by Health Canada. By contrast, given that different active ingredients pose different kinds, and levels, of health and environmental risks, it cannot be assumed (nor can it be determined without a full scientific evaluation on a product-by-product basis) that an unregistered product containing even a slightly higher concentration of an active ingredient than a registered product would not pose an unacceptable risk to human health or the environment. As a result, to protect the health of Canadians and their environment, products must contain the same active ingredient and concentration as the Canadian registered domestic class product.
The stakeholder also indicated concern for Health Canada’s ability to enforce the requirement that products be imported directly by the user (i.e. on their person), which would result in a ban on the online purchase and importation of unregistered pest control products that were subject to the exemption. However, it should be noted that importing unregistered pest control products into Canada (including via Internet sales) has been prohibited since 1927 — except via the personal use import exemption. Health Canada’s enforcement of this long-standing prohibition has included working with couriers and online retailers to ensure they are aware of, and comply with, this prohibition. Therefore, with this change, all online purchases and imports of pest control products will be treated consistently: pest control products that are registered in Canada can still be purchased online and shipped to locations in Canada; while unregistered pesticides cannot be purchased online and imported. Health Canada will be doing outreach with the public as well as continuing to work with couriers and online retailers to help ensure that stakeholders understand and comply with the amended regulations. A compliance and enforcement program already exists for the personal use import exemption and Health Canada will continue to monitor and address compliance and enforcement issues.
The personal use import exemption requires modernizing as a result of changing access to pest control products (e.g. Internet sales, increasing international travel) and to clarify that only products that are equivalent (i.e. of the same active ingredient and concentration) to Canadian registered domestic class products (e.g. personal insect repellants) are allowed to enter Canada via the exemption; this modernization also helps ensure that the quantities being imported do not undermine the regulatory regime. The criteria outlined in the amendment aims to ensure that the public will be able to better understand the exemption and will be able to use it consistently and appropriately. The amendment also provides clarity to the PCPRs and will help to ensure that the exemption is enforced consistently, since it is clear which types of products are allowed to enter Canada via the exemption. By strengthening the criteria set out in the exemption, the amendment will help ensure that potentially harmful pest control products from other countries and pest control products not meant for use by the general public cannot enter Canada via the exemption.
The criterion prohibiting third-party importations will likewise reduce health and safety risks throughout the supply chain and prevent Internet sales from being used to circumvent the exemption’s volume limit and personal use provision, or to circumvent the regulatory regime to import large volumes of unregistered products for possible commercial use or resale. The amendment may therefore have human health and/or environmental benefits by preventing products with unacceptable risks or products that require special equipment or training to be used safely from being imported and used in Canada, as well as have the benefit of helping to avoid potential negative impacts on Canadian pesticide manufacturers and vendors by not allowing the regulatory regime to be circumvented.
The amendment strengthens the criteria set out in an existing provision for which a compliance and enforcement program is already in place. This amendment could result in compliance and enforcement officers recommending the refusal of entry for more non-compliant products at border crossings, which may result in more products being returned to the sender or in additional costs to Government to carry out disposal. However, planned outreach activities with stakeholders (e.g. major Internet service vendors, courier companies, customs brokers and the public) concerning the amendment should help reduce the likelihood that the public will attempt to import non-compliant products either on their person or via the mail system. Health Canada has undertaken this type of outreach in the past. This should mitigate the likelihood that the amendment will result in the seizure of additional products.
Since the amendment prohibits Internet sales and third-party transportation, foreign companies wishing to sell unregistered pest control products to Canadian consumers may be affected. However, this is not expected to have a negative impact on the Canadian economy and may result in a small increase in the sales of registered domestic class products in Canada. No longer allowing third-party transportation of unregistered pest control products may affect courier companies that have been transporting these products across the border. However, many of the large courier companies are foreign-owned, and the impact on the Canadian economy is expected to be low.
Implementation, enforcement and service standards
The amendment strengthens an existing provision of the PCPRs for which a compliance and enforcement program is already in place. Health Canada is planning on doing outreach with the public as well as with couriers/online retailers to help ensure that parties understand the new criteria. The amendment will come into force six months after it is published in the Canada Gazette, Part II.
Policy, Communications and Regulatory Affairs Directorate
Pest Management Regulatory Agency
2720 Riverside Drive