The federal government has long regulated the composition of consumer products and their packaging to mitigate potential harm to human health that may arise from their use. Historically, this was achieved through direct product-specific prohibitions on the use of certain substances and materials with a demonstrably negative effect.

In recent years, many jurisdictions have turned their attention to perceived environmental damage engendered by high-turnover consumption patterns and the resulting waste generated by an ever-growing number of global consumers. Initiatives to apply an environmental protection lens to the regulation of finished consumer products and their packaging is our trend to watch for 2024.

Manufacturers, distributors, importers and sellers of consumer products should anticipate increased controls on the composition and quality of consumer products and their packaging, where quality refers to the longevity and reusability of the good. In particular, we expect that new regulations may incorporate the following emerging trends:

1. More product and packaging categories targeted for regulation: Broad designations of “toxic substances” under the Canadian Environmental Protection Act, 1999 (CEPA), triggering the government’s regulation-making authority in relation to consumer products and packaging;
2. Extending product lifespan: Extending the useable life of consumer products through nascent mandated rights to repair;
3. End of life management: Encouraging sustainable product and packaging design through extended producer responsibility; and
4. Consumer education: Advertising and labelling requirements to educate consumers about the environmental impact of consumer products and their packaging.

As a key takeaway, perhaps now more than ever, it will be important for the whole of the consumer product to monitor and actively participate in the development of proposed environmental regulations to ensure that they are developed in a fair manner, having regard to practical implications for industry.

“Toxic substance” controls

The federal government has traditionally regulated the use of enumerated “toxic substances” that pose a risk to human health or the environment by adding them on a case-by-case basis to the List of Toxic Substances (the List) under the Canadian Environmental Control Act (CEPA).¹ Once added to the List, the regulation-making power of the federal government is triggered.

In recent years, the federal government has shifted its approach to the List of Toxic Substances by devising and designating broad categories of substances such as “plastic manufactured items” (PMI) and “per- and polyfluoroalkyl substances” (PFAS) as substances to be added to the List.² Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, repealed and replaced the List with a new Schedule I to CEPA. Schedule I incorporates everything that was previously listed on the List, including PMI,³ as well as expressly articulating Canadians’ right to a “healthy environment.”

Notwithstanding that Bill S-5 changed the legal underpinning of the designation of PMI as a toxic substance, the Federal Court (Court) proceeded to determine that the 2021 Order designating PMI as a toxic substance under CEPA was invalid and unlawful (PMI Decision).⁴ In essence, the Court found the listing of all PMI, as a category, to be overly broad in relation to the scientific evidence which was purported to support the listing (which was limited to 12 items) (See: Stick a (plastic) fork in it: Canadian federal plastics designation declared unlawful). Interestingly, the Court left open the possibility that a narrower listing of specific PMI may be appropriate.

The PMI Decision is currently under appeal and so the controversy on whether PMI is a valid designation of a toxic substance will continue to play out into 2024. Consequently, it remains to be seen whether the current listing of PMI in Schedule I will be removed or replaced with a narrower listing, which will impact what PMI are exposed to further regulation under CEPA. Among other things, it will be interesting to see the impact, if any, that the Bill S-5 amendments to CEPA that expressly provide that Canadians have a right to a healthy environment will have on the Federal Court of Appeal’s consideration of the appeal.

Moreover, the proposed addition of all PFAS as a single class was announced before the PMI Decision was released. The proposed PFAS class, would encompass thousands of substances which are widely different including with respect to their inherent properties (i.e., physical state), the manner in which they degrade in the environment and their uses across different industries. To date, the government has not made an Order adding PFAS to Schedule 1. Accordingly, it will be interesting to see whether industry comments received in response to the Draft state of per- and polyfluoroalkyl substances (PFAS) report coupled with the PMI Decision will result in a change to planned regulation of PFAS.

Regardless of the outcome, we expect the federal government will continue to try to find new ways of regulating plastic and controlling PFAS, consistent with its Zero Plastic Waste Agenda and broader environmental protection agenda, respectively.

Extending product lifespan

In the fall of 2023, federal and provincial governments moved to implement a Canadian right to repair. Federal Bills C-244 and C-59 purport to amend the Copyright Act to allow the circumvention of technological protective mechanisms for the diagnosis, maintenance, and repair of software-driven electronic products, and the Competition Act to enable the Competition Tribunal to compel suppliers to provide a “means of diagnosis and repair” for their products, respectively.⁵ A “means of diagnosis and repair” includes information, technical updates, diagnostic software or tools and any related documentation and service parts.⁶

On a similar note, federal Budget 2023 outlines a plan to mandate common power chargers for consumer electronic goods to reduce unnecessary costs and waste.⁷ This echoes European developments, where all mobile phones and tablets sold in the EU are to be equipped with USB-C chargers by the end of 2024.

At the provincial level, Québec adopted Bill 29, An Act to protect consumers from planned obsolescence and to promote the durability, repairability, and maintenance of goodsin October 2023. The updates to the province’s Consumer Protection Act expand on federal repair initiatives by mandating that by 2026, it must be possible to install replacement parts using “commonly available tools and without causing irreversible damage” to consumer appliances, electronics, air conditioners, heat pumps and further products to be determined by regulation.⁸ Most notably, Bill 29 outlaws the practice of planned obsolescence, which it defines as any technique aimed at reducing the normal operating life of goods.⁹

Although not housed under CEPA, both the federal and Quebec developments mirror France’s Anti-Waste and Circular EconomyLaw, which banned planned obsolescence and implemented a right to repair as a means to promote the re-use and sustainable design of products with a goal of protecting the environment from a growing volume of electronic waste.¹⁰

As firsts of their kind in Canada, both the federal Copyright Act amendments and Quebec Bill 29 put pressure on businesses operating in Canada to produce repairable and, necessarily, higher-quality electronic products in the coming years, where quality will be measured by the useable life of a product. It remains to be seen whether other industries will be targeted to increase the useable life of consumer products placed on the market - such as clothing and textiles - or if the focus for other industries will be on the reusability of the good at its end of life.

End of life management

Extended producer responsibility (EPR) regimes require producers to retake responsibility for certain products at the end of their lifecycle in order to divert them from the waste stream. As more products are captured by EPR regimes, producers bear a greater burden to ensure those products can be refurbished, reused and recycled – i.e., produced using materials that are capable of being recovered and reused. In recent years, Canada’s Zero Plastic Waste Agenda has spurred several provincial EPR programs to include plastic packaging.

Similarly, despite the PMI Decision, the federal government is moving forward to create the Federal Plastics Registry (FPR) under CEPA, which was one of a number of developments announced following the designation of PMI as a “Toxic Substance.”¹¹ Interestingly, the FPR is being implemented as a function of the Minister of Environment’s information gathering powers under CEPA (s. 46) which are significantly more broad than powers to regulate toxic substances, and which may explain why the federal government has chosen to move forward with this regulation, while seemingly pausing on other proposed regulations that were announced shortly after the 2021 Order listing PMI as a toxic substance.

For example, further development of the proposed regulations implementing recycled content requirements appear to be paused.¹² However, the implementation of the FPR will provide useful data to support development of such regulations by identifying categories of consumer products and packaging that should be subject to recycled content requirements. If introduced, this would prove another way in which the composition or quality of products and their packaging is regulated, i.e., how sustainable the raw materials are.

Under the proposed FPR, regulated parties will be required to report on prescribed product categories.¹³ For each product category, reporting requirements will be phased in through 2026, starting with single-use plastics and electronic and electrical equipment for the 2024 calendar year.¹⁴ At a high level, reporting requirements extend to the type and total volume of plastic products placed in the market and whether they are currently capable of being recycled and reused.¹⁵

While the FPR is very much focused on plastics, the reporting requirements are likely to reveal categories of consumer goods that produce significant waste for further regulation – the likely culprit being textiles. Both the EU and France have moved to implement more stringent EPR programs for textiles, with the EU proposing to ban the destruction of unsold textiles by 2026.¹⁶ The push for sustainable textiles has begun to transcend government. In 2023, Vestiaire, a global second-hand fashion platform based in France, announced its intention to remove all fast fashion brands from its platform by March 2024.

Consumer education

Industry should also be mindful of new legislation purporting to introduce labelling requirements and/or impose restrictions on false and misleading environmental claims, otherwise referred to as greenwashing, which are designed to provide consumers with more accurate information regarding the sustainability of consumer products and their packaging. As consumers become more educated about their buying decisions, producers are again subtly encouraged to invest in the quality of their products since consumers will be increasingly savvy at identifying truly sustainable products.

Federal Bill C-59, discussed above, includes an explicit prohibition on greenwashing under the Competition Act.¹⁷ Specifically, it would be a deceptive marketing practice to make a “representation to the public in the form of a statement, warranty or guarantee of a product’s benefits for protecting the environment or mitigating the environmental and ecological effects of climate change that is not based on an adequate and proper test.” As consumer buying habits increasingly favour environmentally friendly products, the greenwashing amendment ensures that only producers of demonstrably sustainable products may take advantage of environmental claims.

The federal government’s proposed Recycled Content and Labelling Rules for Plastics would impose rules for when and how companies can make a claim of recyclability.¹⁸ While initially put forth under CEPA, further development appears to be on hold since the PMI decision. In light of the proposed greenwashing prohibition under the Competition Act, it remains to be seen under which regime further rules for making recyclability claims will be established and enforced. However, the predominant view is that the rules should encompass an element of educating consumers on what is actually recyclable and how to prepare items for recycling.

It is also worth noting that Bill 197, the 2019 predecessor to Quebec’s above-mentioned Bill 29, contained a ‘Sustainability Rating’ scheme, modelled after France’s ‘Repairability Index,’ under which consumer goods were to include a label indicating their long-term durability.¹⁹ As Canada’s right to repair evolves, we may see similar labelling initiatives educating consumers on how to extend the useable life of their products, further incentivizing the production of durable products.

For more information on this topic, please reach out to the authors, Monica Song and Yulia Konarski.

To read other articles in the Dentons’ Pick of Canadian Regulatory Trends to Watch in 2024 series, click here.

Stay up-to-date with all insights and guidance from our Regulatory team by visiting our Canada Regulatory Review blog here and signing up for future alerts here.

We wish to thank Emma Fillman, articling student in Ottawa, for her assistance with this article.

1. Canadian Environmental Protection Act, 1999, SC 1999, c 33 at s 90 [“CEPA”].↩
2. See Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999, SOR/2021-86, (2021) C Gaz II (the “2021 Order”); see also the Draft state of per- and polyfluoroalkyl substances (PFAS) report which was open for comment between May to July of 2023. ↩
3. Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, 1st Sess, 44th Parl, 2023 (assented to 13 June 2023). ↩
4. Responsible Plastic Use Coalition v. Canada (Environment and Climate Change) , 2023 FC 1511.↩
5. Bill C-244, An Act to amend the Copyright Act (diagnosis, maintenance and repair), 1st Sess, 44th Parl, (as passed by the House of Commons 18 October 2023); Bill C-59, An Act to implement certain provisions of the fall economic statement tabled in Parliament on November 21, 2023 and certain provisions of the budget tabled in Parliament on March 28, 2023, 1st Sess, 44th Parl (second reading in progress 12 December 2023).↩
6. Bill C-59 at s 244.↩
7. Canada, Budget 2023, Catalogue No 1719-7740 (Ottawa: 2023) at 38.↩
8. Bill 29, An Act to protect consumers from planned obsolescence and to promote the durability, repairability, and maintenance of goods, 1st Sess, 43rd Leg, Quebec, 2023 (assented to 5 October 2023)s 4. ↩
9. Bill 29, s 14. ↩
10. Law No 2020-105, France. ↩
11. Notice of intent to issue a notice under section 46 of the Act with respect to reporting of certain plastic products for 2024, 2025, and 2026 (Department of the Environment), (2023) C Gaz 1, 4141 (Canadian Environmental Protection Act, 1999) [“FDR Notice of Intent”] ↩
12. Environment and Climate Change Canada, Developing recycled content and labelling rules for plastics (5 May 2024). ↩
13. FDR Notice of Intent, Sched 1, Part 3.↩
14. FDR Notice of Intent, Sched 5. ↩
15. FDR Notice of Intent, Sched 4.↩
16. See European Commission, Proposal for a Directive of the European Parliament and of the Council amending Directive 2008/98/EC on waste, Brussels, COM (2023)at Art 22(d), pp 7-8; see also France, “Anti-Waste Circular Economy Act: Measures in Place and Coming” (2023), that outlines a “Roadmap 2023-2028 specific to the textile sector: better collection, better recycling, better repair, developing the second life of textiles, supporting virtuous companies that respect environmental labels”. ↩
17. Bill C-59, s 236. ↩
18. Environment and Climate Change Canada, Recycled content and labelling rules for plastics, (Regulatory Framework Paper), (Gatineau: ECCC, 5 May 2023).↩
19. Bill 197, An Act to amend the Consumer Protection Act to fight planned obsolescence and assert the right to repair goods, 1st Sess, 42nd Leg, Quebec, 2019 (adopted in principle April 2019). ↩