Original post published: October 9, 2020
Last updated: October 11, 2020
The Government of Canada (the Government) has announced its intention to finalize regulations that will (i) ban certain single-use plastics, (ii) establish recycling content requirements in products and packaging, and (iii) impute responsibility of collection and recycling on manufacturers, importers, and sellers.
In a news release dated October 7, 2020, the Government provided these end goals as the proposed solution to achieving its zero plastic waste by 2030 objective. In tandem with its news release, the Government also published its Discussion Paper: A proposed integrated management approach to plastic products to prevent waste and pollution (the Discussion Paper) and final Science Assessment of Plastic Pollution.
On October 10, the Government published a proposed Order to add “plastic manufactured items” to Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA). Once the Government passes an Order adding plastic manufactured items to Schedule 1, this will clear the path for the Government to release associated draft regulations to regulate plastic manufactured items.
The Government’s intention is to reduce the total amount of plastic being produced, improve plastic recycling and change behaviours at key stages in the lifecycle of plastic products (including design, manufacturer, use, disposal and recovery) in order to create a circular plastics economy.
- Banning certain single-use plastics
The six items the Government proposes to ban include:
- Plastic checkout bags
- Straws
- Stir sticks
- Six-pack rings
- Cutlery
- Food packaging and service ware made from hard-to-recycle plastics
The Government applied a three-step management framework for single-use plastics to determine what plastics require management:
Step 1 – Characterize single-use plastics: this characterization criteria includes whether the single-use plastic item is (i) environmentally problematic,[1] (ii) value recovery problematic,[2] and (iii) whether any exemptions may apply. For example, although contact lenses and packaging were found to meet both criteria this form of single-use plastic was nevertheless exempt because it performs an essential function and there are no viable alternatives.
Step 2 – Set management objectives: for each priority category, the Government determines which of the following objectives should be pursued: (i) eliminate or significantly reduce the amount of a single-use plastic items entering the Canadian environment; (ii) reduce the environmental impact of plastic products by increasing recycling; and (iii) increase the value recovery of plastics (use of recycled plastics as opposed to virgin plastics).
Step 3 – Choose an instrument: when considering what actions should be taken to achieve the management objective, the Government uses the Instrument Choice Framework for Risk Management under the Canadian Environmental Protection Act. This Framework takes into consideration such criteria as (i) environmental effectiveness, (ii) economic efficiency, (iii) distributional impacts, (iv) acceptability and compatibility, and (v) internal obligations (including trade obligations).
2. Establishing performance standards
The Government is considering how product performance standards for plastic products can create and stabilize the market for secondary plastics. The intention is that once a market is established it will incentivize investment in plastic recycling.
Based on the Discussion Paper, the means of achieving this is by creating recycled content requirements. Such requirements are intended to drive investment and innovation. Recycled content requirements can also encourage the private sector to reconsider the design of their products, creating a further push for innovation.
The Government has set the target of at least 50% recycled content in plastic products by 2030; however, the approach for requiring recycled content and the interim regulations are still under development.
3. End-of-life responsibility
The Federal Government is working alongside the provinces and territories to develop national targets and standards with respect to extended producer responsibility whereby the manufacturers, importers, and/or sellers of plastic products and packaging will be responsible for collecting and recycling them. Together, the Federal and Provincial/Territorial Governments are developing national guidance to harmonize this initiative throughout Canada.
Proposed Order adding “plastic manufactured items” to Schedule 1 of CEPA
On October 10, 2020, the Government published its Regulatory Impact Analysis Statement and proposed Order to add “plastic manufactured items” to Schedule 1 of CEPA.
The addition of “plastic manufactured items” to Schedule 1 will not, on its own, impose any regulatory requirements. However, the proposed Order would grant the ministers the authority to develop risk management measures for plastic manufactured items, which if pursued, could result in compliance costs for stakeholders and/or enforcement costs for the Government. If such risk management measures are subsequently proposed, consultation with stakeholders, Indigenous peoples, the public, and other interested parties will be conducted.
Next steps and opportunity for comment
The Government’s regulations respecting plastic products are scheduled to be finalized by the end of 2021. Draft regulations have not yet been released for public comment.
The Discussion Paper and proposed Order adding plastic manufactured items to Schedule 1 of CEPA are both open for input until December 9, 2020.
Environment and Climate Change Canada will engage with provincial and territorial governments, Indigenous peoples and stakeholders on the design of the regulatory instruments and the approaches outlined in the Discussion Paper, including the three elements of the proposal specified above.
Discussion Paper: Any comments with respect to the Discussion Paper may be emailed to the Director of the Plastics and Marine Litter Division of Environment and Climate Change Canada at: ec.plastiquesplastics.ec@canada.ca.
Proposed Order: Any comments or notice of objection with respect to the Order may be sent to the Executive Director, Program Development and Engagement Division, Department of the Environment. Comments either by fax at 819‑938‑5212 or by email at eccc.substances.eccc@canada.ca. All comments and notices must cite the Canada Gazette, Part I, and the date of publication of the notice.
Anyone who provides information to the Minister of the Environment may submit with the information a request for confidentiality (pursuant to section 313 of CEPA).
Dentons’ Environmental Law Team is monitoring developments and will provide updates as they are released by the Government of Canada.
[1] “Environmentally problematic” is defined to mean that the single-use plastic item is highly prevalent in our environment and/or it is known or suspected to cause environmental harm.
[2] “Value recovery problematic” is defined to mean that the single-use plastic item impedes recycling systems or wastewater treatment and/or has a low recycling rate (and barriers to increasing its recycling rate exist).
