Have you decided to sell and / or manufacture non-medical masks in the midst of the COVID-19 pandemic?
Your altruism and cooperative spirit are commendable! However, it is important to be aware of the legal obligations that could arise from selling and manufacturing non-medical masks.
Here are 3 legal elements to keep in mind in order to take the necessary precautions to avoid being held liable as a manufacturer or seller of non-medical masks.
Of course, please take this as legal information and not legal advice. If you have any questions regarding liability flowing from the sale and manufacture of non-medical masks or of product liability in general, send us an email at firstname.lastname@example.org.
1) Advertising and labelling of non-medical masks
Manufacturers (also known as dealers in the relevant legislation) or sellers of non-medical masks must comply with several labelling and advertising standards set out in the Textile Labelling Act and the Textile Labelling and Advertising Regulations.
In order to sell or advertise consumer textile articles such as non-medical masks, the dealer must apply thereon a label in French and English specifying the textile fibre content of the product as well as the identity of the dealer (name and address).
In addition, dealers are prohibited from representing information that is false, misleading, or that could reasonably be regarded as such, with respect to a textile fibre product such as a non-medical mask. This prohibition applies to both the advertising of the product and its labelling. “False or misleading information” may refer to, for example, a description of the use of the product that could reasonably be misleading as to its actual use. It is therefore essential to specify in your advertisements that the masks sold or manufactured are not intended for medical use.
2) Liability of the manufacturer or seller of non-medical masks
Manufacturers or sellers of consumer products such as non-medical masks may potentially incur liability by virtue of consumer protection laws in Quebec.
Indeed, the manufacturer of movable goods such as non-medical masks can be held liable for injury caused to a third party (for example, the purchaser of the mask) because of a security defect in the goods. Generally, there is a security defect when the goods do not afford the safety that one is normally entitled to expect.
For example, if the manufacturer of a mask advertises that the mask may be used for medical purposes, or if it is reasonable for the consumer to expect that the mask be for medical use when it is not, the manufacturer could be held liable if the consumer suffers an injury (for example, by contracting COVD-19) after having used the mask for medical purposes.
The defect in design or manufacture of the goods, the poor preservation or presentation of the goods, or even the the lack of sufficient indications as to the risks and dangers the goods involve or as to the means to avoid them can constitute a safety defect.
3) The importance of disclosure of information
It is important to note that, despite the above, the manufacturer, distributor or supplier of movable goofs (e.g. non-medical masks) will not be held liable for the injury caused by a safety defect in the goods if he proves that the victim knew or could have known of the defect, or could have foreseen the injury. Nor will he be held liable if he has respected his duty to provide information when he became aware of the existence of this defect.
To avoid such liability, make sure to specify the risks associated with the use of a non-medical mask (e.g. if it does not protect against a particular disease, etc.) before its sale or advertisement so that the consumer is well informed before the purchase.
As well, remember to adhere to the advertising and labelling standards mentioned above.
Finally, you can check whether your insurance provider covers liability incurred from the sale or manufacture of defective consumer products.