Written By Brad Gilmour, Stephanie Ridge, Greg Whiteside, and Sydney Olsen

On October 7, 2020, the Canadian government released the next steps in its plan to move Canada to zero plastic waste by 2030.

In his announcement, Environment and Climate Change Canada (ECCC) Minister Wilkinson advised that the Canadian government will publish a proposed Order to add "plastic manufactured items" to the List of Toxic Substances set out at Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA) on October 10, 2020, and use the regulation-making powers under CEPA to "ban" six plastic waste products by the end of 2021.

Concurrently, ECCC published a Discussion Paper, "A proposed integrated management approach to plastic products to prevent waste and pollution", which sets out the Canadian government's policy direction and objectives, as well as ECCC and Health Canada's Final Science Assessment of Plastic Pollution, which appears to be intended to provide the Canadian government with a scientific basis for the designation of "plastic manufactured items" as toxic.

This announcement raises interesting questions regarding the use of the CEPA to control substances that do not fall within the common usage of "toxic". Below, we outline the legislation, science, and policy objectives that are intermingled in the Canadian government's plans for plastic.

The Legislation: Using CEPA and the Toxic Substances Designation to Manage Plastics

The Canadian government's authority to control toxic substances is set out at Part 5 of the CEPA. Once a substance is listed on the List of Toxic Substances at Schedule 1, the CEPA provides the Canadian government with powers to manage these substances through various tools, including regulations.

A substance may be designated as "toxic" and added to Schedule 1 through a variety of information collection or risk assessment pathways that typically involve review and information gathering by ECCC. In this case, the Ministers of ECCC and Health appear to have moved directly to making a recommendation under section 90, which provides that where the Governor in Council is satisfied that a substance is toxic, an order may be made to list the substance in Schedule 1.

In contrast with the other specific substances on the list, such as "lead" or "polychlorinated biphenyls (PCBs)", the Canadian government will designate the broad category of "plastic manufactured products" as toxic. No definition of "plastic manufactured items" has yet been published, but the use of a category of products will presumably provide the Canadian government with considerable discretion in categorizing plastic substances as toxic. The potential scope is illustrated in the Science Assessment, which categorized plastics into "micro plastics" or "macro plastics", and notes that developments in the plastics industry have "resulted in the production of a myriad of plastic materials with varying physical and chemical properties" (Science Assessment at 15).

Once added to Schedule 1, the Discussion Paper provides some insight into the tools being contemplated to control plastic manufactured products, noting that the "enabling authorities" under the CEPA will be used "… to enact regulations that target sources of plastic pollution and change behaviour at key stages in the lifecycle of plastic products, such as design, manufacture, use, disposal and recovery in order to reduce pollution and create the conditions for achieving a circular plastics economy" (Discussion Paper at 3).

In his announcement, Minister Wilkinson directly addressed concerns about adding plastics to Schedule 1, suggesting that the title of Schedule 1, "List of Toxic Substances", reflects an outdated perception of the list. The Minister further suggested that the Canadian government does not consider plastics "toxic", but rather, detrimental to the environment much like greenhouse gases, another Schedule 1 listing. Minister Wilkinson stated that adding plastics to Schedule 1 merely ensures the regulations apply to plastic products, but the Canadian government is open to conversation about nomenclature.

It is noteworthy that by a narrow majority, the Supreme Court of Canada in R v Hydro-Québec [1997] 3 SCR 213 upheld the toxic substances provisions of the CEPA pursuant to the Parliament's criminal law powers under section 91(27) of the Constitution Act after they had been struck down by three levels of court in Quebec. In consideration of the potential scope of the toxic substance provisions to control chemicals generally, the court stated that the prohibition of the substances on the List of Toxic Substances in Schedule 1 of the CEPA "is a limited prohibition applicable to a restricted number of substances" (para 146) where such substances are "toxic in the ordinary sense" (para 146) and "of a kind akin to those already listed in Schedule I" (para 145). These already listed substances included lead, mercury and asbestos, which the court found to be substances that "even to the uninitiated are well known to be toxic" (para 145). In light of these holdings of the court, some may ask whether single-use plastics, such as plastic grocery bags, straws and stir sticks, are appropriately characterized and regulated as toxic substances.

The Science: Contents of the Final Science Assessment of Plastic Pollution

As noted above, the Minister's announcement was accompanied by the publication of the Final Science Assessment of Plastic Pollution, which finalized the draft published in January 2020. Public comments submitted to ECCC on the Draft Science Assessment were accepted until May 2020.

The purpose of the Science Assessment is to "summarize[s] the current state of the science on the potential impacts of plastic pollution on the environment and human health and informs future research and decision-making on plastic pollution in Canada" (section 1.1). In doing so, the Science Assessment sets out available research on the sources, occurrence, and fate of plastic pollution in the environment, as well as the potential impacts of plastics on human health and the environment. In addition to reviewing specific scientific studies, the assessment reached several conclusions regarding plastics in Canada's environment, including:

• In 2016, Canadians discarded over three thousand kilotonnes of plastics as waste, with only nine percent being recycled;
• In 2016, 29,000 tonnes of plastic pollution entered the Canadian environment;
• Microplastics (plastic particles less than or equal to 5mm in size) have been found in fresh and marine surface waters, sediment and soil, indoor and outdoor air, and food and drinking water; and
• Macroplastics (plastics greater than 5mm in size) have been shown to cause physical harm and mortality to organisms and have the potential to adversely affect habitat integrity.

On the basis of the studies reviewed, the Science Assessment concludes that based on the precautionary principle, action is needed to reduce plastics in the environment. The precautionary principle, as defined in the preamble to the CEPA, states that "where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."

The Policy: ECCC Discussion Paper Regarding an Integrated Management Approach to Plastic Products to Prevent Waste and Pollution

In accordance with the Science Assessment and the Canadian government's target of zero plastic waste by 2030, the Discussion Paper proposes actions to ban and restrict certain single-use plastics and move Canada towards a circular plastics economy.

Managing Single-use Plastics

In the Discussion Paper, "plastic waste" includes all plastics that enter the waste stream through landfills, recycling or incineration, while "plastic pollution" is plastic discarded in the environment outside of a waste management system. "Single-use plastics" include plastic products designed to be thrown away after one use, such as food wrappers, shopping bags, straws and drink cups.

After analyzing various single-use plastics to determine if management is needed to reach waste management objectives, the Canadian government proposes to ban the following single-use plastics: plastic checkout bags, stir sticks, six-pack rings, cutlery, straws and food service ware.

The ban is targeted to be in place by the end of 2021 and is anticipated to be imposed using a regulation under CEPA. Until then, the Canadian government has committed to working with provinces, territories, industry and other stakeholders to implement this framework.

Establishing Performance Standards

The Canadian government plan considers enacting recycled content requirements for all plastic products and packaging in order to establish a market demand for recycled plastics. This would involve establishing minimum recycled content percentages, measuring and reporting rules and technical guidelines, which may be based on resin type, product or sector grouping, or an undifferentiated economy-wide requirement. The Canadian government has proposed a minimum target of 50-percent recycled content in plastic products by 2030.

Ensuring End-of-Life Responsibility

Lastly, the Canadian government has committed to working with provinces, territories and industry to develop national targets, standards and regulations that will hold companies that manufacture or sell plastic products (including the sale of items with plastic packaging) responsible for their collection and recycling. This is referred to as extended producer responsibility. Performance standards to guide recycling programs, options to encourage innovation and monitoring standards, among others, will be contemplated to help extend the life and improve the value recovery of plastic products.

What's Next? Questions and Opportunities for Comment

Given the extensive level of action planned, a number of impactful questions remain unanswered. Issues such as the appropriateness of using the toxic substance provisions of the CEPA to enact broad sweeping prohibitions on plastic products and wastes, what consultative processes will be held in determining additional prohibited plastics, and how the Canadian government will move forward with its definition of "plastic manufactured items" are all considerations for both industry and government alike. What is certain however, is the impact of these plans on the life cycle of plastic products across the country.

The Canadian government has invited stakeholders and industry to comment on any aspect of the Discussion Paper and the proposed Order, including categorization of single-use plastics and proposed management approaches. Any comments are to be submitted to ECCC by December 9, 2020.

The Bennett Jones Environmental Law group is actively engaged with these developments. If you have any inquiries, please contact us.

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