On December 20, 2022, the Minister of the Environment’s Single-Use Plastics Prohibition Regulations officially came into force in Canada. To allow businesses to adapt to the changes, several provisions of these broad regulations will be phased in by December 20, 2025. Any business that manufactures, imports, or sells (including for free) any of the six single-use plastic items listed below is subject to the Regulation.
As of December 20, 2022, the Regulations prohibit the manufacture and importation for sale in Canada of “checkout bags”, “cutlery”, “foodservice ware”, “stir sticks”, and “straws”. The main characteristics of these items must be that they are plastic and single-use. “Plastic beverage container rings” will be prohibited from manufacture and importation for sale in Canada as of June 20, 2023. Therefore, if Border Services Officers are of the opinion that these single-use plastic products are reasonably imported for sale in Canada, they may be detained or confiscated at the border.
As of December 20, 2023[1], the Regulations will completely prohibit the sale of these items across Canada[2]. Companies must therefore examine their supply chains to identify suppliers who can produce or import similar items that are no longer made entirely or partially of plastic. According to the Regulatory Impact Analysis Statement, Canadian plastics manufacturing (including single-use plastics and durable goods) accounted for $25 billion in sales in 2017. Plastics manufacturing establishments were primarily located in Ontario (44%) and in Quebec (28%). Canadian plastic manufacturers met about 50% of domestic demand, while imports met the remaining 50%.
Note that single-use plastic flexible straw[3] are provided a series of exemptions. In particular, a retail store will be permitted to sell single-use flexible plastic straws to a customer provided that (i) the straw “is packaged together with a beverage container” and that ii) “the packaging was done at a location other than the retail store”. It will also be permitted to sell single-use flexible plastic straws in a non-commercial, non-industrial and non-institutional context.
As of December 20, 2025, Canada will prohibit the manufacture, import and sale for export of the six items listed above. Plastic manufactured items will be added at that time to the Export control list of the Canadian Environmental Protection Act and therefore officially prohibited from export. Exports from Canada of the listed items could be detained or confiscated at the border by border services officers.
Finally, any person who manufactures for export or imports for export must keep a record. The Single-Use Plastics Prohibition Regulations require that the information and documents recorded in the registry be kept for a period of 5 years and that the registry be kept in Canada so that it can be inspected immediately upon request by the Border Services Agency, the Department of the Environment or Health Canada. This record keeping requirement helps to ensure that these single-use plastic items do not end up in the Canadian marketplace where they would be banned.
As a reminder, since April 23, 2021, “Plastic Manufactured Items” are listed on the Toxic Substances List: Schedule 1 of the Canadian Environmental Protection Act. As a result of the public consultations and the Regulatory Impact Analysis Statement, the federal government has determined that single-use plastic products can have a long-term harmful effect on the environment, are persistent and bioaccumulative, and inherently toxic to humans or organisms. Packaging items account for approximately 47% of plastic waste released into the environment. The Regulatory Impact Analysis Statement further determined that during the year of 2016 approximately 2500 tonnes of plastic waste generated in Canada was released into the oceans as being plastic pollution.
The management of toxic substances is governed by Part 5 of the Canadian Environmental Protection Act. The Act provides for fines of between $25,000 and $100,000 – for a first offence – for anyone who violates the Single-Use Plastics Prohibition Regulations. In the event of a violation of the Regulations, the Minister of the Environment may also order companies that manufacture, process, distribute, import or sell such items to recall and refund customers, as well as replace them with other products that are not harmful to the environment or to human life or health.
Note that the Single-Use Plastics Prohibition Regulations does not apply to plastic manufactured articles that are not intended for sale, are waste or are only in transit through Canada. In the latter case, it may be recommended that the goods not be customs cleared but rather be stored in a bonded warehouse pending export.
It should be noted that the plastic items listed above are considered single-use if they are designed to be discarded after being used only once. The Regulations set out the testing parameters that will be used by the government to verify the compliance of single-use plastics placed on the Canadian market. However, these parameters have yet to be specified as the federal government is developing methods for single-use plastic items that require testing. Once finalized, the procedures will be available upon request to assist companies in understanding how the Minister of the Environment will assess compliance for “single-use plastic items”.
If you, your association or your company have any questions regarding commercial importing or exporting, customs, or regulatory compliance, please do not hesitate to contact one of our legal advisors.
DS Lawyers has an experienced team offering a variety of advice in the field of commercial and customs law.
[1] With the exception of “Ring carriers” and “Flexible straws packaged with beverage containers” which will be prohibited from sale as of June 20, 2024.
[2] Note that “Single-use plastic flexible straw” will remain exempt.
[3] Defined as single-use plastic straw that has a corrugated section that allows the straw to bend and maintain its position at various angles.
