The Canadian federal minister of environment and climate change and federal minister of health recently published the draft Single-Use Plastics Prohibition Regulations (the regulations) under the Canadian Environmental Protection Act, 1999 (CEPA), which would ban the manufacture and sale of certain single-use plastics (SUPs).
If enacted in their current draft form, the regulations would impact businesses that produce or rely on these plastics in their operations. The comment period for the regulations is open until March 5, 2022. If your business would be affected by the regulations, you may wish to consider submitting comments on the regulations or to assess potential adjustments to your business operations in anticipation of the SUPs ban coming into effect.
Effect of the regulations
The regulations are designed to combat the harms of macro-plastic pollution to animals and their habitat.
The regulations would ban the manufacture, import and sale of six product categories of SUPs: checkout bags, cutlery, foodservice ware made from or containing problematic plastics, ring carriers, stir sticks and straws. For those categories that have reusable substitutes (e.g., straws), performance standards would be instituted to differentiate between prohibited SUPs and permitted reusable products.
The prohibition on the manufacture or import of all prohibited SUPs and the manufacture, import or sale of straws would come into effect one year from when the regulations are registered. The prohibition on the sale of the remaining prohibited SUPs would come into effect two years from when the regulations are registered.
The regulations would not apply to SUPs that are manufactured or imported for the purposes of export, although they would impose a record-keeping requirement on these SUPs. There are also exceptions in the regulations that would allow for the continued sale of straws in some limited settings, such as in long-term care facilities.
The one-year transition period would allow for the sellers, manufacturers and users of the prohibited SUPs to formulate and implement plans for their replacement. Effects on manufacturers of the prohibited SUPs would be immediate, while effects on sellers and users would be delayed. In the commentary accompanying the draft regulations, the Canadian government suggests manufacturers of prohibited SUPs could either concentrate on the export market or retool production to manufacture other non-prohibited plastic products.
When transitioning away from the prohibited SUPs, sellers and manufacturers would need to be cognizant of the technical performance standards to ensure any replacement products would not be similarly prohibited by the regulations. For example, the proposed performance standard for plastic cutlery is based on how long the cutlery maintains its shape when immersed in hot water.
Enforcement
Under CEPA, enforcement officers could enter businesses to search for the prohibited SUPs, if they had reasonable grounds to believe that they may be present. Enforcement officers would also have the power to stop and detain conveyances (e.g., transport trucks) and shipping containers suspected of transporting prohibited SUPs.
If enforcement officers were to find SUPs covered by the regulations, they could issue an environmental compliance protection order. An environmental compliance order could require a shutdown of the applicable business, until the use of the prohibited SUPs was remedied and they were disposed of correctly. A person or corporation contravening the regulation could also be fined $5,000 to $12,000,000. Fines would differ depending on whether the offender was an individual, small revenue corporation or corporation, whether it was a first offence or a multiple offender and whether the conviction was an indictment or based on summary conviction.
Conclusion
The proposed regulations would create challenges for sellers, manufacturers and users of the prohibited SUPs. If the regulations are enacted in their current form, potential replacements should be considered and inventories drawn down in preparation for the anticipated implementation of the regulations in mid-2023.
The public consultation period for the proposed regulations opened on December 25, 2021, and will close on March 5, 2022. Comments can be directed to ec.plastiques-plastics.ec@ec.gc.ca, citing the Canada Gazette, Part I, and the date of the publication – December 25, 2021.
