At Long Last—Increased Regulatory Certainty for Treated Articles in Canada

January 04, 2023

Written By Julia Schatz and Venetia Whiting

On December 7, 2022, amendments to the Pest Control Products Regulations (PCPR) were published in the Canada Gazette Part II. Among other things, the amendments:

• clarify regulatory requirements for treated articles and establish criteria for authorizing certain treated articles;
• formally exempt certain antimicrobials used in products regulated under certain Acts; and
• replace the requirements for declarations by importer of control products.

Overview of Amendments Relating to Treated Articles and Antimicrobial Preservatives Coming into Force June 2023

Many treated articles are commonly available in the Canadian market, including mosquito repelling clothing, treated mattresses and shower curtains, and paints and detergents treated with antimicrobials preservatives.

The amendments relating to treated articles and antimicrobial preservatives come after several years of stakeholder consultations by Health Canada's Pest Management Regulatory Agency. The amendments will formalize the definition of treated article, previously referenced only in the information note and not in the Pest Control Products Act (PCPA) or the PCPR which had led to significant uncertainty about how such articles were regulated. "Treated article" will mean an inanimate product or substance (not including food) that during the manufacturing process is treated with a pest control product either by intentionally incorporating the product into, or applying it to, the product, and whose primary purpose is not to directly or indirectly control, destroy, attract or repel a pest or mitigate the troublesome effects of a pest. In turn, the word "article" will be removed from the definition of "device" which will mean "instrument, gadget, apparatus, appliance or other similar object."

A definition of "antimicrobial preservative" will also be added to the PCPR, referring to a chemical substance, or a mixture of chemical substances, that is intentionally incorporated into, or applied to, an article for the purpose of preserving it from deterioration or degradation by preventing the growth of micro-organisms.

Treated Articles and Food Additives Exempt from Registration

Treated articles will be prescribed as pest control products pursuant to s. 2(2)(d) of the PCPR. However, articles treated with antimicrobial preservatives will be considered unregistered pest control products under s. 4 of the PCPR (i.e. exempt from registration), provided that the prescribed requirements are met. To be exempt from registration:

• the sole purpose of the treatment must be to protect or preserve the article itself;
• the active ingredient of the preservative must be registered or authorized under s. 21(5)(a) of the PCPA to be incorporated or applied to the article;
• for articles treated in Canada, the preservative must be registered or authorized under s. 21(5)(a) of the PCPA; or
• in any other case, the treatment includes the same active ingredient in a preservative authorized or registered in Canada and meets the conditions of authorization/registration (e.g., application method, uses and application rates).

The scope of this exemption codifies what is currently described in the Information Note - Treated Articles.

Certain permitted food additives will also be exempt from registration under the PCPR, including pest control products set out in column 1 of Part 2, Class 2 or Part 3, Class 3 of the List of Permitted Preservatives.

Note that pest control products exempt from registration continue to be regulated under the PCPA and are subject to other regulatory requirements, including with respect to advertising claims and routine monitoring and enforcement activities.

Treated Articles and Antimicrobial Preservatives Exempt from the PCPA

In some cases, treated articles and antimicrobial preservatives are completely exempt from the application of the PCPA, including:

• treated articles incorporating antimicrobial preservatives and imported for personal use;¹ and
• antimicrobial preservatives used in treated articles that are feed (under the Feeds Act), fertilizers or supplements (under the Fertilizers Act), drugs or cosmetics (under the Food and Drugs Act) or certain medical devices (also under the Food and Drugs Act).² This exemption also applies to treated articles that incorporate one of these antimicrobial preservatives.

The amendments applicable to treated articles (ss. 1(1), 1(3), 2(2), 3 and 4) come into force on the 180^th day after the Regulations were published in Part II or June 5, 2023.

Overview of Amendments Relating to the Declaration by Importer of Control Products Coming into Force June 2023

Section 36 of the PCPR sets out the requirements for the declaration that is to be provided by the importer of a pest control product to the minister of health at the time of importation. The amendments are meant to align with the information the Canada Border Services Agency collects at the border. For the general requirements, the amendments offer more precise descriptions of the information that must appear on the declaration, including, for example, replacing the term "resale," which is not used in the PCPA, with the term "distribution." Two purposes have been added to the declaration, including for grower requested own use and for the importer to specify the purpose. Specific requirements have also been introduced with respect to declarations applicable to treated seeds.

The amendments applicable to declarations also come into force in June 2023.

Amendments Currently in Force

The amendments that came into force on December 7, 2022, include:

• the addition of electronic document delivery as an acceptable form of communication;³
• application requirements applicable to the name and address of each place of manufacture of a pest control product if it is or contains a microbial agent, or each place of production and formulation of the pest control product;⁴
• record keeping requirements applicable to applicants and registrants, including the requirement to keep such records at the address of each place of manufacture or each place of production and formulation (as applicable) for five years from registration, amendment or renewal;⁵
• incorporating Canada's commitments under the Stockholm Convention on Persistent Organic Pollutants (by denying applications for products that are or contain active ingredients prohibited thereunder);⁶ and
• repealing section 19 of the PCPR, which applies to trifluralin, which is already considered as part of the health and environmental evaluation process.

Bennett Jones has extensive knowledge and experience in the pesticide regulatory space and is well-positioned to help your business address any questions or concerns regarding these regulatory changes. If want to learn more about the potential impact of the new and forthcoming amendments to the PCPR, please contact the authors or another member of our Agribusiness group.

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