Written By Radha Curpen, Sharon Singh, Sarah Gilbert, Venetia Whiting and Claire Gibson

On April 18, 2023, the Government of Canada announced the launch of consultations under the Canadian Environmental Protection Act, 1999 (CEPA) with respect to:

• a Regulatory Framework that serves as the starting point for the proposed Recycled Content and Labelling for Plastic Products Regulations; and
• a Technical Paper outlining the reporting requirements for the federal plastics registry.

The Government is moving forward with these initiatives in support of its Canada-wide Strategy on Zero Plastic Waste, which was adopted by the Canadian Council of Ministers of the Environment (CCME) in November 2018. 

Proposed Regulations

The proposed Recycled Content and Labelling for Plastic Products Regulations would:

• mandate minimum levels of recycled post-consumer plastics in certain plastic manufactured items; and
• provide new labelling rules with respect to claims regarding the recyclability and compostability of the plastics.

Recycled Content Requirements

In February 2022, the Government of Canada published a Technical Issues Paper regarding proposed recycled content requirements. The Government reported that comments from stakeholders were considered in developing the requirements set out in the Regulatory Framework.

The Regulatory Framework divides packaging into two main categories:

• rigid packaging—packaging whose shape remains essentially unchanged after the contents are added or removed, including PET and HDPE rigid packaging, beverage bottles, packaging made from polypropylene, polystyrene and expanded polystyrene, and special categories (including rigid packaging for cosmetics and pest control products); and
• flexible packaging—packaging designed to change shape under tension or heat whether in bulk or discrete forms (including packaging film, bags, pouches, tubes, and flexible beverage containers, waste bags and flexible foam packaging such as polyethylene foam).

Certain sub-categories of packaging are proposed to be excluded from recycled content requirements, including:

• primary packaging for food (except beverage containers);
• durable packaging used for long-term storage (such as toolboxes, first-aid boxes, etc.);
• packaging that is an integral part of the product (such as printer cartridges and earphone cases with charging ports);
• compostable plastic packaging (subject to the labelling requirements below); and
• packaging for a range of products regulated under other legislation, such as the Food and Drug Act, Cannabis Act, Transportation of Dangerous Goods Act, 1992, Hazardous Products Act, and others.

The Regulatory Framework describes reporting requirements, as well as minimum recycled content requirements within each broad packaging category.  The minimum recycled content would be based on the amount of plastic used in, and the percentage targets for, each product category, based on an annual calculation.  Reporting would be required for all product categories by 2025, with the phasing in of minimum content requirements starting in 2026-2027 (at 10-20 percent for some product categories) and increasing up to 60 percent for some product categories by 2030.

The Regulations would include gross revenue and supply exemptions to exempt small businesses and companies that do not bring packaging into the market as part of their operations.

Labelling Requirements

In addition to the proposed minimum recycled content requirements, the Regulatory Framework provides further details on labelling requirements for claims that are made relating to recyclability and compostability for plastics, including:

• prohibiting recycling "chasing-arrows" symbols and other recyclability claims on plastic packaging and single-use plastics unless:
  • at least 80 percent of Canadians have access to collection systems that accept the plastic,
  • at least 80 percent of the sorted yield goes to North American re-processors, and
  • there is an 80 percent re-processing rate;
• requiring regulated parties to include a QR code that provides information about an item's recyclability (including the reason and providing instructions for preparing the item);
• prohibiting labelling plastic packaging and single-use items as "degradable" or "biodegradable"; and
• setting minimum standards for products to be labelled compostable, including disintegration by at least 90 percent during an actual composting cycle in an in-field test at a Canadian composing facility.

The new labelling requirements are reportedly intended to incentivize design for recyclability; address misinformation and "greenwashing", so consumers can make better-informed decisions about the products they purchase; and improve the quality of materials entering recycling and composting facilities. The proposed labelling requirements would be implemented through a phased process.

Plastics Registry

The Government also indicated that it plans to establish a federal plastics registry to serve as a "key source of information" to help monitor and implement various measures, as part of the Zero Plastic Waste Agenda. The federal plastics registry would reportedly require annual, weight-based reporting of plastics throughout all lifecycle stages, from placement into the Canadian market to end of life management.  According to the Technical Paper, standardized data would support and help expand provincial and territorial extended producer responsibility (EPR) programs, while aligning national and provincial/territorial definitions of "producers" to prevent different producers reporting the same data points.

The registry's subcategories are intended to align with provincial/territorial EPR programs and the Recycled Content and Labelling for Plastic Products Regulations, and include packaging, electronics and electrical equipment, construction, automotive, white goods (e.g., refrigeration or freezing), textiles and agriculture.

Next Steps

Both the Regulatory Framework and the Technical Paper are open for public consultation until May 18, 2023.  The Government has indicated it plans to publish the proposed Recycling Content and Labelling for Plastic Products Regulations and a draft section 46 notice (information gathering) under CEPA on the federal plastics registry for publication in Canada Gazette, Part I, before the end of 2023. The proposed labelling requirements will subject to a phased proposes, similar to the registry implementation. A further consultation period is expected to follow before the regulations and instrument are finalized.

Bennett Jones has extensive knowledge and experience in environmental law and can help your business address any questions or concerns regarding the regulation of plastics in Canada. If you want to learn more, please contact the authors or a member of our Environmental group or our ESG Strategy and Solutions group.

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