Consultation document: proposed amendments to regulations about phosphorus in cleaning products

1. Background and rationale

Environment and Climate Change Canada (ECCC) has prepared this consultation document to inform the public and stakeholders and to solicit feedback on proposed amendments to the Concentration of Phosphorus in Certain Cleaning Products Regulations. These amendments are required to bring the Regulations into compliance with the World Trade Organization (WTO) Agreement on Trade Facilitation, as well as to provide clarity with certain existing provisions.

The Concentration of Phosphorus in Certain Cleaning Products Regulations protect Canada’s environment from the release of phosphorus from certain products that could contribute to the over-fertilization of freshwater ecosystems and the growth of harmful algae blooms in Canada’s lakes and rivers. The Regulations limit the amount of phosphorus in laundry detergents, household dish-washing compounds (including hand dish-washing soap and automatic dish-washing detergents) and certain household cleaners that are manufactured or imported into Canada. In addition, they require manufacturers and importers to keep records regarding their products containing phosphorus.

Article 11.8 of the WTO Agreement on Trade Facilitation prohibits the application of technical regulations, such as the Concentration of Phosphorus in Certain Cleaning Products Regulations, to goods moving through a WTO Member’s territory from a point outside its territory to another foreign point (i.e. goods in transit). A new authority under Part 7, Division 1 of the Canadian Environmental Protection Act, 1999 (CEPA), achieved through Bill C-13, enables ECCC to exempt laundry detergents, household dish-washing compounds and certain household cleaners from the Concentration of Phosphorus in Certain Cleaning Products Regulations when they are in transit through Canada.

In addition to bringing the Regulations into compliance with the WTO Agreement on Trade Facilitation, amendments are being considered to clarify which household cleaners are not subject to the phosphorus concentration limits of section 6 and to provide consistency and standardization across all ECCC regulations with respect to existing laboratory accreditation provisions.

2. Objectives and interested stakeholders

The main objectives of this consultation are to:

  • inform the public and interested stakeholders of the intention to amend the Concentration of Phosphorus in Certain Cleaning Products Regulations to bring them into compliance with the WTO Agreement on Trade Facilitation; and
  • give the public and interested stakeholders an opportunity to provide input with regard to the proposed amendments.

Interested stakeholders may include non-governmental organizations, provincial and territorial government departments, and industry, particularly manufacturers, importers, retailers and associations in the cleaning product industry.

The Government of Canada is committed to providing interested or affected stakeholders with the opportunity to take part in consultations during the regulatory development process. All stakeholders may comment in writing by mail, fax or email to the address provided in Section 6 of this document by February 9th, 2017.

3. Proposed amendments

The proposed regulatory amendments would exempt cleaning products in transit through Canada from the Regulations, clarify that only products that are exclusively metal cleaners or de-greasing compounds are exempt from the phosphorus concentration limits of the Regulations, and clarify the existing laboratory accreditation provisions to provide consistency and standardization.


3.1 Exemption for cleaning products in transit

The proposed amendment would exempt laundry detergents, household dish-washing compounds and household cleaners that are in transit through Canada from the Regulations.


3.2 Household cleaners

The intent of the 2009 amendments to the Regulations is to exempt products designed and intended to be used exclusively as metal cleaners or degreasing compounds from the phosphorus concentration limits. The proposed amendment would clarify that this exemption applies only to these products and not to multifunctional cleaners.


3.3 Accreditation of laboratories

The proposed amendments would not introduce any new testing or analysis requirements into the Regulations. Rather, they would standardize the laboratory accreditation provisions across all ECCC regulations.

More specifically, the proposed amendments would clarify that any analysis or determination of the concentration of phosphorus must be performed by a laboratory that holds a certificate of accreditation to the International Organization for Standardization ISO/IEC 17025, entitled General requirements for the competence of testing and calibration laboratories. This certificate must be issued by an accrediting body that is a signatory to the International Laboratory Accreditation Cooperation Mutual Recognition Arrangement, cover the analysis or determination of the concentration of phosphorus, and be valid at the time that the analysis or determination is performed. Alternatively, the certificate of accreditation may be issued under the Environment Quality Act, R.S.Q., c. Q-2, must cover the analysis or determination of the concentration of phosphorus, and be valid at the time the analysis or determination is performed. The proposed amendments would also require that the analysis or determination be performed in accordance with generally accepted standards of good scientific practice in the absence of a recognized standard laboratory method.

4. Potential benefits of Regulations

The government recognizes the importance of the WTO Agreement on Trade Facilitation. Amendments to the Concentration of Phosphorus in Certain Cleaning Products Regulations, among other regulations, would allow Canada to comply with the WTO Agreement on Trade Facilitation.

The implementation of the WTO Agreement on Trade Facilitation would benefit Canadian traders by expediting, streamlining and enhancing the predictability of customs and border procedures for exports to developing countries, which translates into lower trade costs. The benefits are expected to be most significant for small- and medium-sized enterprises (SMEs), for whom trade costs are disproportionately high. The implementation of the Agreement by developing countries could help Canadian SMEs increase their export presence in emerging markets, from Latin America and the Caribbean, to Africa and South and Southeast Asia.

5. Potential risks of goods in transit being diverted into the Canadian market

Existing measures under the Customs Act limit the risk that goods in transit could be diverted into the Canadian market. Customs controls include:

  • transmission of advance cargo information prior to arrival;
  • transport of goods by bonded carriers;
  • transfer of goods to bonded warehouses;
  • affixing a customs seal on shipments; and
  • submission of documentation upon exit to verify that the goods are in the same quality and quantity as those which entered the country.

Goods in transit through Canada remain under the control of the Canada Border Services Agency, from the customs office from which the goods enter Canada to the office from which they exit the country.

6. Next steps

6.1 One-for-one rule

The One-for-one rule under the Government of Canada’s Red Tape Reduction Action Plan aims to reduce the administrative burden on business and limit the growth in the number of federal regulations. The One-for-One Rule requires the calculation of administrative burden on business that could be created by a new regulation or regulatory amendment. The rule requires that any increase in administrative burden be offset by an equivalent reduction in administrative burden from an existing regulation and that for every new regulation introduced that imposes administrative burden on business, an existing regulation must be repealed.

Administrative burden is defined as anything that is necessary to demonstrate compliance with a regulation, including the collecting, processing, reporting and retaining of information, and completing of forms.

The proposed amendments are not anticipated to trigger the One-for-One Rule as there is no expected incremental administrative burden on business.


6.2 Small business lens

The purpose of the Small Business Lens under the Red Tape Reduction Action Plan is to reduce regulatory costs to small business without compromising the health, safety, security and environment of Canadians. The Small Business Lens requires regulators to demonstrate that they have done what they can to minimize the impact on small business. A small business is defined as any business, including its affiliates, that has fewer than 100 employees or has between $30,000 and $5 million in annual gross revenues.

The proposed amendments are not anticipated to impose any burden on small businesses as there are currently no products transiting through Canada and therefore no impact on Canadian business. On the contrary, they would allow Canada to comply with the WTO Agreement on Trade Facilitation whose benefits are expected to be most significant for SMEs.


6.3 Comment period

Environment and Climate Change Canada welcomes the distribution of this consultation document to any interested and affected stakeholders.

The consultation will include a 30-day comment period. Comments received during this period will be taken into consideration while drafting the proposed amended Regulations. Please submit comments in writing no later than February 9th, 2017.

Pursuant to section 313 of CEPA 1999, any person who provides information to the Minister of the Environment under CEPA 1999 may submit with the information a written request that it be treated as confidential. Please address comments to the Products Division with the subject “Consultation on Proposed Amendments to the Concentration of Phosphorus in Certain Cleaning Products Regulations”. Comments can be submitted by mail, email or fax:

By mail:

Products Division
Environment and Climate Change Canada
Place Vincent Massey, 9th Floor
351 St. Joseph Boulevard
Gatineau, Quebec
K1A 0H3

By fax:

819-938-4480

7. References

 

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