Incoming Federal Plastic Reporting Requirements Will Apply to the Health Industry

By: Elaine Larsen Wells and Keith McIntosh

Consistent with the federal government’s continued actions to expand its role in environmental policy to include the health sector, on December 30, Environment & Climate Change Canada (ECCC) published a Notice of Intent (NOI) in the Canada Gazette, Part I which informs stakeholders that it intends to require plastic “producers” to begin annual reporting of their plastic’s lifecycle in Canada. The NOI is open for stakeholder input until Feb 13.

Reporting requirements will apply in 2024 to packaging for food, health products, single use and disposable plastic products, and medical devices which could be considered electronic or electrical equipment, and which meet specified composition standards. In subsequent years until 2026, requirements will be expanded to encompass nearly all plastic products circulated within the Canadian economy.

Under the proposal, producers are defined as the brand or intellectual property owner residing in Canada, or their Canadian-based importers, distributors, or suppliers of the applicable plastics products. Producers may designate a third-party to conduct its tracking and reporting activities, but all reports must be certified. 

The requirements are intended to complement existing reporting requirements such as those under provincial and territorial extended producer responsibility (EPR) programs, and harmonize plastics data across the country. 

The government intends to host the registry through an online portal. The government plans to recover the costs of operating the portal from producers. The reported data will be publicly available. 

ECCC is creating the Registry under the authority of section 46 of the Canadian Environmental Protection Act, 1999 (CEPA) which provides the Minister of Environment & Climate Change with specific information-gathering powers. This policy tool is not within the regulatory process, and, as such, ECCC has not published a Regulatory Impact Assessment Statement (RIAS) or Cost Benefit Analysis. Under section 46, the Registry remains active at the discretion of the Minister.

Environment policies impacting health industry in new ways

Plastics reporting is part of a broader suite of measures federal, provincial and territorial governments are undertaking in the context of their joint commitment to eliminate plastic waste in Canada by 2030, as outlined in the Canada-wide Strategy on Zero Plastic Waste. The Strategy implements national obligations under the Ocean Plastics Charter, which was created under Canada’s G7 Presidency in 2018 and are taken in the context of the drafting of the United Nations treaty to end global plastic pollution which is expected to be completed this year. 

Several initiatives demonstrate how the federal government’s focus in areas of environment and climate change are broadening in scope to impact non-traditional industries such as the health industry. Recent examples include: proposed changes to labelling recyclability rules for health products; new reporting requirements for substances which may be used in health products; support for health authorities to improve sustainability and adapt to climate change risks; actions to address rising public health impacts of climate change in areas such as mental health, and rising infectious diseases; and recent amendments to CEPA which provide for Canadians’ right to a healthy environment.

Some provinces have questioned the federal government’s role in the domains of health and natural resources which are under provincial jurisdiction, and whether there is a need for national harmonization. In this respect, a few industry members have launched legal challenges to the federal plastics registry and other related initiatives. 

For example, a legal challenge from industry, supported by Alberta and Saskatchewan, recently resulted in a Federal Court decision that the federal government’s order to list all plastic manufactured items as toxic under Schedule 1 of CEPA was unreasonably overreaching into provincial jurisdiction. The federal government has stated it intends to continue to regulate plastics and will appeal the ruling. 

In the context of increased global recognition of environmental impacts on human health, potential for future developments in environmental law, and expanded considerations of environment and climate change in federal policy-making, impacts on the health industry in new ways are expected to continue particularly in the current political context.