Earlier this year, we identified and discussed the trend in Canada towards the regulation of consumer products and packaging quality through an environmental lens. This growing trend targets both industry and consumer action to promote the establishment of a circular economy of consumer goods and packaging. As we round out the third quarter of 2024, both federal and provincial levels of government in Canada are seeking stakeholder engagement in relation to numerous legislative initiatives to further the push towards a sustainable consumer product industry.
Proponents of consumer products should actively monitor these developments and engage where necessary to ensure end results that are both practically feasible and net positive from an environmental perspective. Industry is well positioned to provide insight on whether a proposed change may have a chilling effect on the continued availability of diverse product offerings for Canadians.
(1) Extending product lifespan through a consumer right to repair
Federal government announces right to repair framework for consumer appliances and electronics
On June 20, 2024, the Government of Canada’s omnibus budget bill, Bill C-59, received Royal Assent. Among other things, Bill C-59 (Division 6, Part 5) effected a number of amendments to the Competition Act, including the expansion of the Competition Tribunal’s jurisdiction to entertain applications by the Commissioner of Competition or another person for relief from the supplier’s refusal to make the means of diagnosis or repair available.[1]
In parallel, amendments to the Copyright Act proposed in Bills C-244 and C-294, which are currently before the Senate Committee on Banking, Commerce and the Economy, continue to wend their way through Parliament. The provisions of these two bills seek to amend the Copyright Act, respectively: (1) to enable the diagnosis, maintenance and repair of software-driven electronic goods by third parties; and (2) to ensure the interoperability of software-driven electronic goods.
In keeping with the foregoing and related Budget 2023 and 2024 proposals, on June 28, 2024, the federal government announced its intention to create a right to repair framework for home appliances and consumer electronics “with an aim to improve product durability and longevity.”[2] The Right to Repair Consultation seeks feedback on how the framework can ensure the repairability, interoperability, and durability of home appliances and electronics, and, importantly, which appliances and electronics will fall within its scope. The Right to Repair Consultation is open until September 26, 2024.
Parallel movement on right to repair frameworks in Ontario and Quebec
On April 16, 2024, Ontario tabled Bill 187, an Act to amend the Consumer Protection Act, 2023 with respect to the right to repair consumer electronic products, household appliances, wheelchairs, motor vehicles, and farming heavy equipment. While Bill 187 passed first reading in the Ontario Legislature in the spring, it is not expected to be picked up again until the legislature resumes its sitting in October 2024.
Similarly in April 2024, Bill 697, An Act to combat waste was tabled in the Quebec legislature, subsequent to 2023’s Bill 29, which introduced the right to repair into Quebec law. Bill 697 aims to establish a “Repair Fund” to support: (1) the establishment and growth of a circular economy sector in the province of Quebec; (2) investment in circular economy initiatives by Quebec-based investment funds with the launch of blended finance products; and (3) financing activities, projects, or programs to encourage Quebec consumers to repair their goods.[3] While the Quebec Bill is being studied in committee, stakeholders may comment on its content here.
(2) End-of-life management of plastics and textiles – Extended producer responsibility
Environment and Climate Change Canada (ECCC) remains focused on eliminating plastic waste and announces intention to eliminate textile waste
On April 20, 2024, ECCC published formal notice creating the Federal Plastics Registry (FPR).
On July 4, 2024, ECCC announced the formulation of a “roadmap for addressing plastic waste and pollution from the textile and apparel sector” that aims to eliminate waste and create a circular economy for textiles and apparel in Canada.
While the FPR will inform the volume of textile waste containing plastics, the roadmap appears to include all textiles, regardless of their plastic content. To close the information gap, ECCC has opened a public consultation regarding the following aspects of textile and apparel industry: (1) the quantity and source of goods in Canada; (2) the useable life of such goods; (3) waste diversion, i.e. “take-back programs” and extended producer responsibility schemes; (4) increasing textile recycling capabilities in Canada; and (5) reducing microfibre pollution that results from fabric shedding. The FPR public consultation is open until September 1, 2024.
Quebec also looking to target textile waste
Quebec’s Bill 697 could also impose deeper obligations related to unsold products, likely including textiles, as a part of its proposed “National Strategy and Action Plan to Combat Waste” – where “waste” refers to the “act of consuming a product incompletely or unnecessarily.”[4] Specifically, industry would be required to offer, and make a serious effort, to enter into an agreement with a recognized organization for the donation of all unsold products that remain recoverable.[5]
(3) Competition Bureau’s continued greenwashing enforcement focus
Bill C-59 as referred to above, also amended the Competition Actto explicitly include greenwashing as a deceptive marketing practice, meaning that marketing claims about the environmental benefits of a product or service must be substantiated by adequate and proper testing. As consumers and their purchasing decisions become increasingly eco-conscious, this new prohibition seeks to promote sustainability by: (1) arming consumers with accurate information about the environmental benefits of a product or service, and (2) ensuring that only businesses making verifiable claims about the environmental benefits of their products or services are able to maintain and expand their market share among these consumers.
However, the Competition Bureau (the Bureau) has acknowledged the lack of guidance concerning what constitutes adequate and proper testing in the context of green claims. The Bureau has therefore launched a Public Consultation on the Competition Act’s new greenwashing provisions. Businesses seeking to validate current methodologies to support green claims in their industry may weigh in by submitting comments on or before September 27, 2024.
For more information on this topic or assistance in navigating these or other emerging sustainability obligations in Canada, please contact Yulia Konarski or Emma Fillman.
[1] Bill C-59, s. 244(1).
[2] Right to Repair Consultation Document, “Consultation Purpose”
[4] Bill 697, ss. 3-10.
[5] Bill 697, ss. 11-17, 28-20.
