As an update to our Consumer Product Trends to Watch in 2023, in which we anticipated further regulation of plastic and plastic packaging, the Government of Canada has announced that it is targeting Fall 2023 for publication of draft regulations, introducing a Federal Plastics Registry, and establishing a regulatory framework for recycled content and labelling for plastics products. The Government of Canada is forging ahead with further regulation of plastic despite pending litigation challenging the designation of “plastic manufactured items” as a toxic substance under the Canadian Environmental Protection Act (CEPA).
The Federal Plastic Registry
The proposed Federal Plastics Registry seeks to dovetail with existing provincial extended producer responsibility (EPR) requirements by establishing a national database on end-of-life management of products and packaging and by requiring producers to report on all major categories of plastics products.
Who: The Federal Plastics Registry technical paper provides further guidance on how the “producer,” i.e., regulated party would be defined. The Government of Canada is proposing to use a generic definition of “producer” where a provincial or territorial definition does not exist. In a jurisdiction that has a definition of producer, that definition would continue to apply. The underlying rationale is to avoid having different producers required to report the same data points to provincial/territorial and federal governments.
In addition, the government proposes to allow businesses to voluntarily assume the reporting obligations of others and would continue to allow businesses to designate third party Producer Responsibility Organizations (PROs) to fulfill reporting obligations on their behalf. Businesses with robust EPR compliance mechanisms in place may choose to voluntarily assume federal EPR reporting requirements for downstream supply chain partners, i.e., retailers, as a value-add proposition in contractual negotiations for shelf space.
What: The Federal Plastics Registry technical paper sets out the data points that are contemplated for inclusion in the reporting requirement, which includes upstream and downstream data at different points across the plastic item’s lifecycle and information on the resin types included in the plastic item.
When: The Federal Plastics Registry technical paper further elaborates on the categories and subcategories of products that are proposed to be subject to reporting requirements, which include a range of plastic packaging types and electronic and electrical equipment, both of which are targeted for phase I reporting requirements beginning on June 1, 2025.
Recycled content rules
The proposed recycled content rules would require certain new packaging materials and single-use plastics (SUPs) to be manufactured from prescribed percentages of recycled materials. These regulations complement EPR requirements by creating a more robust market for recycled post-consumer resins, incentivizing greater collection of recyclable matter to meet the anticipated demand created by prescribing minimum recycled content requirements in certain plastic items being placed on the market.
Who: In many cases, brand owners will become the regulated party. This aligns with EPR requirements at the provincial and territorial level, where brand owners are identified as the preferred “producer” to fund and operate recycling systems. Under the proposed federal regime, there will be exemptions for small businesses.
What: The proposed Recycled Content and Labelling for Plastics Products framework document outlines the categories of plastic packaging that are proposed to be included and excluded from recycled content requirements. At present, e-commerce packaging is slated for inclusion in recycled content requirements.
When: The proposed rules would require reporting on the amount of recycled content in targeted plastic packaging and SUP categories as early as 2025, with certain categories of packaging including, rigid beverage bottles, rigid PET/HDPE materials and flexible waste bags being required to be composed of 10-20% recycled content by as early as 2026-2027.
Recyclability labelling rules
The proposed recyclability labelling rules would prescribe the requirements that must be complied with in order to make recyclability claims on plastic packaging and SUPs. Again, proposed federal rules complement EPR requirements by incentivizing packaging design choices that favour recyclability. Plastics that meet content requirements may be marketed as greener alternatives to non-recyclable packaging without fear of greenwashing-related enforcement action and litigation (for more information regarding pending litigation please click here).
Who: In many cases, brand owners that are responsible for packaging and labelling will be the regulated party.
What: As a general rule, recyclability labelling rules would apply to any packaging typically included within the scope of provincial or territorial EPR policies, as well as to SUPs and e-commerce packaging. A number of common practices that have attracted scrutiny as “greenwashing” would be explicitly prohibited, including:
- Use of the “chasing arrows” symbol, except in accordance with the labelling rules;
- Use of resin identification codes that incorporate the “chasing arrows” symbol; and
- Any term, symbol or expression that communicates that an item is recyclable or instructs a person to recycle the item, except in accordance with the labelling rules.
In general, the proposed rules will require a pre-market assessment of the recyclability of the plastic item against the following criteria before a recyclability can be made:
- Is the item accepted in collection systems accessible to at least 80% of the population in a province or territory?
- Can the item be sorted into a bale with a sorting yield of at least 80% going to North American re-processors?
- Does the bale have a re-processing rate for North American re-processors of at least 80%?
When: Mandatory labelling rules may begin to apply as early as 2026 for all PET/HDPE SUPs and packaging, with mandatory application extending to all contemplated plastic categories by 2030.
For inquiries regarding regulatory requirements applicable to plastics in consumer products and their packaging, please contact Monica Song and Yulia Konarski.
The author gratefully acknowledges the contribution of Shyrose Aujla, Student at Law.
