A Plan to Ban Single-Use Plastics
In 2019, the Federal Government promised a ban on "harmful single-use plastics" by 2021 as part of its broader strategy to reduce waste and pollution.[1] To do so, the Federal Government has two options: 1) create new stand-alone legislation or, 2) use existing legislation to enforce the prohibition. The latter option was recently used by this same government to ban "plastic microbeads that are ≤ 5mm in size" by adding the substance to Schedule 1 of the Canadian Environmental Protection Act, 1999 ("CEPA").[2]
Regulation of Toxic Substances under CEPA
Under CEPA, a substance is considered toxic "if it is entering or may enter the environment in a quantity or concentration or under conditions that (a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity; (b) constitute or may constitute a danger to the environment on which life depends; or (c) constitute or may constitute a danger to human life or health."[3] The determination of whether or not a substance is "toxic" is intended to be a science-based process and can include a review of another jurisdiction's decision, or a recommendation by the Minister of Environment and Climate Change and Minister of Health.[4] The final decision, however, lies with the Governor-in-Council.[5] There are currently 151 substances that are designated as "toxic" under Schedule 1 of CEPA.[6]
Once a substance is designated as toxic, the Federal Government may establish preventative or control measures for any aspect of the substance's life cycle, including the prohibition of import and sale.
The Precedent: A Ban on Microbeads
On June 29, 2016, the Governor-in-Council designated "plastic microbeads that are ≤ 5 mm in size" as a toxic substance. At the time of the order, plastic microbeads were routinely used in bath and body products, skin cleaners and toothpaste. On June 14, 2017, the Federal Government published the Microbeads in Toiletries Regulations, which prohibits the manufacture, import and sale of toiletries used to exfoliate or cleanse that contain plastic microbeads.[7] As of July 1, 2019, all prohibitions in the Microbeads in Toiletries Regulations come into force.
Report on Plastic Pollution and Opportunities for Consultation
On January 30, 2020, the Federal Government released a Draft Scientific Assessment of Plastic Pollution (the "Draft Report"). The Draft Report is "intended to help inform the Government of Canada's actions and policies as it follows through on its commitment to ban harmful single-use plastics".[8] The Draft Report concludes that "macroplastics[9] have been demonstrated to cause physical harm to environmental receptors on an individual level and to have the potential to adversely affect habitat integrity", while "the evidence for potential effects of microplastic[10] pollution on environmental receptors is less clear and sometimes contradictory, and further research is required".[11]
If the conclusions of the Draft Report remain unchanged in the Final Report, those conclusions could be used to provide the scientific foundation to inform the decision as to whether plastics (whether single-use or multi-use, and of any size) are added to Schedule 1 of CEPA. Such a determination would have significant impacts on industry, waste regulation and individuals who rely on plastics every day for a variety of uses, like carrying groceries. Public comments on the Draft Report are open until April 1, 2020.
[2] CEPA, Schedule 1, Substance 133.
[5] CEPA, ss. 77(6), 77(8), 90.
[9] For the purpose of the Draft Report, "macroplastics" means plastics that are greater than 5 millimetres in size: Draft Report, Part 1.2 "Definitions".
[10] For the purpose of the Draft Report, "microplastics" means plastics that are equal to or lesser than 5 millimetres in size: Draft Report, Part 1.2 "Definitions".
[11] Draft Report, Part 10 "Findings".