Per- and polyfluoroalkyl substances ("PFAS") have been a focal point of worldwide regulatory efforts for some years now. Various jurisdictions, including the European Union, the United States, New Zealand, and Australia, have enacted measures to limit their presence in the environment.
On July 27, 2024, the Government of Canada published the Notice with respect to certain per- and polyfluoroalkyl substances (PFAS) under subparagraph 71(1)b) of the Canadian Environmental Protection Act, 1999 (the "CEPA" and the "Notice"), requiring Canadian businesses to provide information about certain PFAS. The Notice aims at assisting the Canadian government to assess whether the substance is or could become toxic and to determine whether control measures have to be enacted.
The Notice is a follow-up to the Notice of intent to address the broad class of PFAS published in the Gazette by the Government of Canada on April 24, 2021, which noted that PFAS used to replace perfluorooctane sulfonate (PFOS), perfluorooctanoic acid (PFOA) and perfluorocarboxylic acids (LC-PFCAs) (substances that are now regulated under Canadian law) could also be associated with environmental and human health effects.
This bulletin sets out the intended scope of the Notice, its impacts on Canadian businesses and the current statutory framework.
How Will the Notice Impact Your Business?
The Notice imposes requirements on Canadian businesses dealing with PFAS listed in Schedule 1 of the Notice during the 2023 calendar year.
More specifically, the Notice applies to entities that have either:
- Manufactured over 1000 g of any substance listed in Schedule 1; or
- Imported over 10 g of a substance listed in Part 1 of Schedule 1 or over 100 kg of a substance listed in Part 2 and 3 of Schedule 1.
The substances must be pure or in a concentration of at least 1 ppm in a mixture, product, or manufactured item. Specific concern is raised for manufactured items intended for children under 14, items that may contact mucosa, be inhaled, or contact skin/oral pathways, as well as specific categories such as cookware, food packaging, clothing, bedding, and furniture.
The Notice does not apply, however, to substances that are in transit through Canada, intended for personal use, used in laboratory research, or that are contained in hazardous waste/recyclable material exported/imported with a permit, in registered pest control products, in registered fertilizers or supplements, in registered feed or mixed with or attached to registered seeds.
Further, the Notice exempts a person that qualifies as a "micro-business", meaning an organization or company with fewer than five employees or less than $30,000 in annual gross revenue. Also, the Notice exempts products in transit through Canada and products intended for certain prescribed uses in a laboratory.
Targeted businesses must submit information on the commercial quantities and use patterns of PFAS, including mixtures, products, and manufactured items by January 29, 2025.
The collected data will establish a baseline commercial use to facilitate future management of PFAS.Mandatory adherence to the Notice is enforced, with penalties for non-compliance.
Canada's Regulatory Efforts
As of now, the Prohibition of Certain Toxic Substances Regulations (2012) (s. 6 and Schedule 2) prohibit the manufacture, use, sale, offer for sale or import of certain PFASs (namely perfluorooctane sulfonate (PFOS), perfluorooctanoic acid (PFOA) and perfluorocarboxylic acids (LC-PFCAs)) or any product containing them, unless the presence of the substance is incidental (i.e. unintentional). There are, however, some exemptions, such as for firefighting foam, photographic film, manufactured items and others.
A draft regulation to replace the Prohibition of Certain Toxic Substances Regulations (2012) was tabled in 2022, but has yet to be adopted. The Prohibition of Certain Toxic Substances Regulations (2022) would remove most of the exemptions that were included in the Prohibition of Certain Toxic Substances Regulations (2012) for the use of perfluorooctane sulfonate (PFOS), perfluorooctanoic acid (PFOA) and perfluorocarboxylic acids (LC-PFCAs). This draft regulation seems to have been put on hold pending the official version of the Report on the state of PFAS (not yet published).
Further, we note that 21 polymeric PFAS (ex. fluoropolymers, perfluoropolyether polymers, and side-chain fluorinated [co]polymers) have received a letter of no-objection from Health Canada under the Food and Drug Regulations, which provides that "[n]o person shall sell any food in a package that may yield to its contents any substance that may be injurious to the health of a consumer of the food."
The Canadian Ministers of the Environment and Climate Change and of Health have now recommended that a general category for PFAS substances be listed as toxic substances under Schedule 1 of the CEPA, allowing for further control measures regarding these substances. 1
The Path Forward for Impacted Businesses
In assessing impacts on your business from the Notice, first determine whether any products you import or manufacture in Canada are listed in Schedule 1 of the Notice in a quantity greater than the applicable thresholds for Part 1 and for Parts 2 and 3. If so, you then need to assess whether those substances are present in each imported product in a quantity greater than the applicable thresholds provided.
The Notice demands that businesses closely examine their use of PFAS. Compliance with the Notice's requirements is critical for those meeting the identified criteria, necessitating prompt and accurate reporting.
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Fasken is prepared to assist clients in navigating this regulatory shift, ensuring both environmental integrity and business resilience. We will continue to monitor for any indications of regulatory shifts impacting PFAS.
Footnote
1. See the Draft state of per- and polyfluoroalkyl substances (PFAS) report published in May 2023 by Environment and Climate Change Canada and Health Canada and the Updated Draft State of Per- and Polyfluoroalkyl Substances (PFAS) Report published in July 2024 by Environment and Climate Change Canada and Health Canada.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
