Copyright 2008, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Environmental Law, July 2008
The federal government recently made several announcements about substances under the Chemicals Management Plan discussed previously in our January 2007 Blakes Bulletin on Environmental Law: Canada's New Chemicals Management Plan. One of these substances, bisphenol A, has been the subject of considerable controversy due to concerns about the chemical migrating out of plastic baby bottles. Thanks to the Chemicals Management Plan, Canada is the first country in the world to take action on bisphenol A.
The Chemicals Management Plan Challenge
The Chemicals Management Plan is the method by which the federal government is carrying out its mandate to categorize by toxicity all of the chemical substances that are known or presumed to exist in Canada. A key element of the Chemicals Management Plan is the collection of information on the approximately 200 substances identified as high priorities for action from the designated substances list (DSL). The federal government is proceeding with risk assessments for these substances as part of an "Industry Challenge Program" (the Challenge). Under the Challenge, the onus is on industry to prove to the federal government that it is using these chemicals safely. The government is reviewing these substances in small groups or "batches" and releasing batch results roughly every three months. The results include a draft screening assessment as well as a risk management scope which outlines the options being examined for the management of the substance. Industry and other interested stakeholders are invited to submit comments on the content or to provide other information that would be useful in decision-making.
There have been a number of recent developments under the Chemicals Management Plan:
- The draft screening assessments and risk management scope documents for the Batch 2 substances were released on May 17 and 24, 2008. Bisphenol A was released earlier, on April 19, as the government is proceeding quickly with action on this chemical of concern as outlined below. There is a 60-day public comment period associated with each of these documents.
- The finalized list of Batch 6 substances was announced on May 31, 2008. Industry and interested stakeholders have been invited to submit information within six months that could be used to inform the risk assessment and to develop risk management practices for these 18 substances.
- Perfluorooctane Sulfonate and its Salts and Certain Other Compounds Regulations were registered on May 29, 2008. These regulations greatly restrict the ability to use or trade in these substances except under certain conditions.
The final screening assessments for 145 substances on the DSL were published on June 7, 2008. These substances were identified as Persistent, Bioaccumulative and inherently Toxic (PBiT) to non-human organisms, but not currently entering, or likely to enter, the environment as a result of commercial activity. As a result of this announcement, any person intending to manufacture, import or use these chemicals in Canada will first be required to conduct ecological and human health risk assessments.
Further developments will continue to be announced as the project to address the high-priority Challenge substances proceeds to completion in 2010. The draft documents for the Batch 3 substances are expected to be released by August 23, 2008. All of these announcements are accompanied by comment periods where interested parties can provide useful information or commentary. It is important for those in industry and other interested stakeholders to keep an eye on future developments that may impact their interests. The latest news is announced on the Chemical Substances Web site: http://www.chemicalsubstanceschimiques.gc.ca/en/.
Bisphenol A (BPA) is an industrial chemical used in the manufacturing of hard plastics called polycarbonates, as well as epoxy resins. Polycarbonates are used in a number of household items, including baby bottles, reusable water bottles, tableware and storage containers. Epoxy resins are used as protective coatings for metal-based food and beverage cans.
Health Canada and Environment Canada performed screening assessments on bisphenol A as one of the chemicals selected for priority review under the Chemicals Management Plan. The draft screening process identified bisphenol A as "toxic" to human health and the environment.
Health Canada's draft assessment concluded that most Canadians do not need to be concerned, as health effects from BPA occur at exposure levels much higher than those experienced in Canada. However, the assessment also concluded that early development is sensitive to the effects of BPA. The government's focus is now on newborns and infants under 18 months. Exposure generally comes from polycarbonate baby bottles and canned infant formula. While measured levels are below those that could cause health effects, since they are close to levels of potential concern, the government reported that it has taken precautionary measures to further reduce exposure.
The response to the announcement was overwhelming and unsurprising, with retailers pulling all or most polycarbonate and epoxy-containing baby products from the shelves immediately. There are still many unanswered questions about BPA. The government has announced that it will commence an aggressive research plan focused on mothers, foetuses, newborns and infants, as well as other areas of potential harmful effects, including prostate and breast cancer. While the end result of this research may very well establish that there is no harm arising from these products, it is unclear whether the affected products will be able to successfully re-enter the marketplace.
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