Coalition Of Canadian Plastic Industry Members Launch Legal Challenge To Designation Of Plastic Manufactured Items As Toxic Under CEPA

• Published date: 09 June 2021
• Subject Matter: Environment, Environmental Law, Climate Change, Waste Management
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian ERA Perspectives, Selina Lee-Andersen, Joanna Rosengarten, William Horne and Will Dandie

By an Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999 published in the Canada Gazette on May 12, 2021 (the Order), the federal government added "plastic manufactured items" to the list of toxic substances under Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA). This decision follows an announcement in October 2020 by Environment and Climate Change Canada (ECCC) of its regulatory intent to add "plastic manufactured items" to Schedule 1. The change was introduced as part of the government's commitment to achieve zero-plastic waste by 2030 under the Ocean Plastics Charter.

As discussed in further detail below, a group of plastic manufacturers is now challenging the federal government in court following the government's designation of manufactured plastic items as a "toxic substance" under CEPA. On May 18, 2021, the Responsible Plastic Use Coalition (RPUC or Coalition) filed a notice of application with the Federal Court alleging that the designation is unconstitutional and scientifically inaccurate.

There is no doubt that plastics provide unparalleled functionality and durability across a range of products in our everyday lives. Given the prevalence of plastics throughout our economy, the designation of plastic manufactured items as toxic under CEPA will have potential implications across the supply chain. In particular, the designation gives the federal government greater powers to regulate various aspects of the life cycle of plastic products, with potentially significant penalties for noncompliance with CEPA provisions.

Proposed Regulatory Approach to Managing Plastic Products

The federal government's October 2020 consultation paper, Proposed Integrated Management Approach to Plastic Products to Prevent Waste and Pollution, provides the basis for the development of an integrated management approach to plastics, including proposed actions across the value chain to achieve zero plastic waste (including a ban on plastic checkout bags, straws, stir sticks, six-pack rings, cutlery, and food ware made from hard-to-recycle plastics), as well as systemic improvements to recover and recycle plastic. The public consultation period for the paper ended on December 9, 2020 and regulations are expected to be finalized by the end of 2021.

The federal government has indicated that these proposed measures will align with similar actions being taken in the European Union and other countries. In addition, these initiatives complement...