On October 7, 2020, Environment and Climate Change Minister Jonathan Wilkinson announced a list of items that will be banned as part of the Federal Government's prohibition on "harmful single-use plastics".1,2 As we wrote on March 19, 2020 (see here), the Government plans to execute the ban by following the same approach it did to ban "plastic microbeads that are ? 5mm in size" - that is, by characterizing single-use plastics as "toxic" and adding them to Schedule 1 of the Canadian Environmental Protection Act, 1999 ("CEPA").
Along with the list of soon-to-be banned items, the Government also released a discussion paper (the "Discussion Paper") regarding the Government's management approach to plastic products.3
The List of Banned Single-Use Plastics
The single-use items subject to the national ban are:
- grocery checkout bags;
- stir sticks;
- six-pack rings;
- plastic cutlery; and
- food takeout containers made from hard-to-recycle plastics.
Notably, other single-use items such as plastic water bottles, snack wrappers and disposable coffee cups are not subject to the ban.
In the Discussion Paper, the Government explains its methodology for determining which items are included in the ban. For products to be "harmful" and for a ban or restriction to be warranted, an item must be both "environmentally problematic" and "value recovery problematic" according to scientific evidence. "Environmentally problematic" means that the item is prevalent in natural and/or urban environments and is known or suspected to cause environmental harm. "Value recovery problematic" means that the item hampers recycling systems or wastewater treatment, has a low to very low recycling rate or that there are barriers to increasing the recycling rate of the item.4 There are possible exemptions for items which perform essential functions or for which no viable alternatives exist. For example, plastic cutlery will be subject to an exemption if deemed essential for security reasons, and straws may sometimes be exempted for accessibility purposes.5
Only the six banned items are deemed both "environmentally problematic" and "value recovery problematic" according to the applicable criteria. See Table 2 in the Discussion Paper for the application of the criteria to other single-use items.
The Impact of the Ban
The proposed ban raises many issues, a few are highlighted below.
Are single-use plastics really "toxic"?
Substances designated as "toxic" are listed under Schedule 1 of CEPA. The addition of single-use plastic items, such as plastic grocery bags and cutlery, are a marked departure from other substances currently listed on Schedule 1, such as lead, mercury and ozone.6 It's unknown how this new "toxic" prohibition will affect the comprehensive provincial waste and waste diversion regimes already in place for single-use plastic items.
Is the ban constitutional?
The proposed ban raises many of the same issues alive in the forthcoming carbon pricing decisions from the Supreme Court of Canada.7 In those proceedings, Canada's top court must grapple with whether the federal legislation (The Greenhouse Gas Pollution Pricing Act) that regulates Provincial greenhouse gas emissions is constitutional in whole or in part. The Supreme Court's decision will be critical, as it will deal with many of the same jurisdictional issues surrounding single-use plastics, including constitutional arguments relating to the division of powers.
How will the federal ban interact with provincial and municipal management of plastics?
Restrictions or prohibitions on single-use plastics are already in place or soon to be enacted in cities and provinces across Canada.8 How this ban will affect municipal by-laws and provincial legislation prohibiting or restricting the use some plastics is unknown.
How will the federal ban affect investment in Canada?
Such a ban impacts various industries involved in the manufacturing and sale of single-use plastics. For example, the announcement of the proposed ban came just one day after the Alberta Government announced its natural gas strategy9, which includes plans to seek investment in petrochemicals, which are used to make plastic.
What about COVID-19?
Recognizing the ongoing need for single-use plastic personal protective equipment (PPE) during the COVID-19 pandemic, the Government confirmed that the plan will not impact access to PPE or other medical plastics. Minister Wilkinson stated that the Government has been working to address the impacts of the increased use of disposable plastics during the pandemic and is investigating recyclable or biodegradable PPE. In response to concerns about the impact of the ban upon restaurants relying on take-out orders during the pandemic, Minister Wilkinson said that the list of banned items was selected due to the availability of affordable alternatives.
What is Next?
The new regulations implementing the ban are not expected to come into effect until the end of 2021.10 This means that industry has some, but not much time to adapt.
In the interim, the Federal Government plans to gather further information about the management of single-use plastics and will consider whether further restrictions on single-use plastics need to be implemented as further data becomes available.11
Environment and Climate Change Canada is currently accepting public commentary on the Discussion Paper until December 9, 2020 .
1 Government of Canada Website: https://www.canada.ca/en/environment-climate-change/news/2020/10/canada-one-step-closer-to-zero-plastic-waste-by-2030.html.
2 This ban relates only to macroplastics, which cause physical harm to the environment. The evidence for potential effects of microplastics on the environment is less clear and further research is required.
3 A proposed integrated management approach to plastic products - Discussion Paper: https://www.canada.ca/en/environment-climate-change/services/canadian-environmental-protection-act-registry/plastics-proposed-integrated-management-approach.html#toc0 [Discussion Paper].
4 Discussion Paper, Table 1.
5 Discussion Paper, Table 2.
6 CEPA, Schedule 1.
7 Attorney General of Saskatchewan v. Attorney General of Canada; Attorney General of Ontario v. Attorney General of Canada; Attorney General of British Columbia v. Attorney General of Alberta (heard 22 September 2020).
8 Regulations and by-laws regarding single-use plastics in Canada: https://www.retailcouncil.org/regulations-and-bylaws-on-shopping-bags-in-canada/.
9 Getting Alberta back to work - natural gas vision and strategy: https://open.alberta.ca/dataset/988ed6c1-1f17-40b4-ac15-ce5460ba19e2/resource/a7846ac0-a43b-465a-99a5-a5db172286ae/download/energy-getting-alberta-back-to-work-natural-gas-vision-and-strategy-2020.pdf.
10 Government of Canada Website: https://www.canada.ca/en/environment-climate-change/news/2020/10/canada-one-step-closer-to-zero-plastic-waste-by-2030.html.
11 Discussion Paper, "Step 3: Instrument
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