Canada: Canadian Government Takes Action On Bisphenol A

On April 19, 2008, Environment Canada and Health Canada recommended that the industrial chemical bisphenol A ("BPA") be classified as "toxic" under the Canadian Environmental Protection Act, 1999 ("CEPA"). The recommendation was made public by way of a Notice in the Canada Gazette summarizing the scientific considerations of a draft screening assessment report on BPA. Press reports earlier in the week had suggested that the federal government was set to make the recommendation.

The federal government's review of BPA is part of its Chemicals Management Plan initiative. The Plan, which was introduced in 2006, was designed to review the safety of the more than 23,000 chemicals that have been used in the Canadian marketplace for many years. BPA was one of the first substances assessed under the Chemicals Management Plan.

BPA is used to make a hard, clear plastic known as polycarbonate, which in turn is used to make a number of common consumer products, including reusable water bottles, baby bottles, pitchers, tableware and storage containers. It can also be found in epoxy resins, which act as a protective coating on the inside of metal-based food and beverage cans. The concern is that BPA may be released when the plastics are heated.

The draft screening assessment report proposes that BPA be considered a substance that "may be entering the environment in a quantity or concentration or under conditions that constitute or may constitute a danger in Canada to human life or health." This forms the basis for the federal government's official recommendation that BPA be classified as "toxic". Once a substance has been designated as toxic and has been placed on the Toxic Substances List (Schedule 1 to CEPA), the federal government has a duty to put in place regulatory measures to manage the safety issues. This can include a ban on the sale, importation and/or manufacture of BPA in Canada.

Measures being contemplated by the federal government in relation to BPA were set out in a draft "Risk Management Scope" document that was released contemporaneously with the assessment report. Highlights of this draft risk management strategy include:

  • If the final screening risk assessment report concludes that BPA is toxic, but is not a candidate for complete elimination, risk management would focus on: (a) the potential for releases of BPA into infant formula from epoxy resin lined cans; and (b) the potential for releases of BPA from polycarbonate plastic baby bottles. The federal government will move to prohibit the importation, sale and advertising of polycarbonate baby bottles.
  • The federal government proposes to adopt a precautionary approach for BPA in food packaging in order to minimize the exposure of susceptible populations newborns and infants to the substance. This would be done for both new and existing food packaging. The federal government will support manufacturers in the assessment of suitable replacement options for BPA. With regard to existing food packaging, the Government proposes to engage industry in the creation and implementation of a "voluntary code of practice" to help reduce levels of the substance in infant formula.
  • The exposure assessment in the draft screening assessment report indicates that exposure from all sources of BPA to the general population is low and that most uses of products containing the substance pose little risk to Canadians. As a result, the Government does not intend to take risk management actions at this time for the following uses: automotive parts, dental materials, twocomponent epoxy adhesives, optical lenses, polycarbonate water bottles and other containers.

The Government has a initiated a 60-day public comment period (i.e., until June 18, 2008) during which any person may file with the Minister of the Environment written comments on the draft screening assessment and the measures being contemplated by the federal government. After considering comments received during the 60-day period, the federal government will make a final determination as to whether BPA is "toxic", and commence the process of managing the risks attributed to BPA.

About Ogilvy Renault

Ogilvy Renault LLP is a full-service law firm with close to 450 lawyers and patent and trade-mark agents practicing in the areas of business, litigation, intellectual property, and employment and labour. Ogilvy Renault has offices in Montréal, Ottawa, Québec, Toronto, and London (England), and serves some of the largest and most successful corporations in Canada and in more than 120 countries worldwide. Find out more at www.ogilvyrenault.com.

Ogilvy Renault is the International Legal Alliance's Canadian Gold Award winner for 2008 in M&A and Corporate Finance.

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