Detailed feedback received from Husky Injection Molding Systems Ltd.

Husky Injection Molding Systems Ltd.
500 Queen Street S., Bolton, Ontario, Canada L7E 5S5

905-951-5100 x2575


Joachim Niewels
Vice President, Innovation & Sustainability


December 8, 2020

Sent by email

Jacinthe Séguin
Director, Plastics and Marine Litter Division,
Department of the Environment
Gatineau, Quebec K1A 0H3

By Email: ec.plastiques-plastics.ec@canada.ca


Andrea Raper
Acting Executive Director,
Program Development and Engagement Division
Department of the Environment,
Gatineau, Quebec K1A 0H3

By Email: eccc.substances.eccc@canada.ca


Re: Husky Injection Molding Systems Ltd. Comments on the Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999, as published in the Canada Gazette, Part I, Volume 154, Number 41 on October 10, 2020 and the Proposed integrated Management Approach to plastic products to prevent waste and pollution


Dear Ms. Séguin and Ms. Raper,

1. Introduction and executive summary

Thank you for the opportunity to comment on the proposed Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999Footnote 1  ("CEPA") as published in the Canada Gazette, Part I, Volume 154, Number 41 on October 10, 2020 (the "Proposed Order") and the Discussion Paper entitled “A proposed integrated management approach to plastic products to prevent waste and pollution” (the "Discussion Paper").Footnote 2

Given the necessary link between the Proposed Order and Discussion Paper, Husky Injection Molding Systems Ltd. ("Husky") has combined its comments on both documents herein so as to provide comprehensive feedback for Environment and Climate Change Canada's ("ECCC") consideration.

As outlined below, Husky shares the Federal Government's goals of reducing the amount of plastic waste that escapes managed waste streams to become plastic pollution. Husky is a supporter of the Canadian Council of Ministers of the Environment's ("CCME") approach and the implementation of the Zero Plastic Waste Strategy. We agree that reducing and preventing plastic pollution is a significant global priority that requires concerted action involving governments, industry, and non-governmental organizations. Our organization is committed to driving recycling, keeping plastics in the value stream and out of landfills and the environment.

As part of Husky’s global commitment to the environment and to enabling our customers to meet their sustainability goals, Husky is a signatory to the New Plastics Economy Global Commitment led by the Ellen MacArthur Foundation. The Global Commitment brings together businesses, governments and other organizations around the world to tackle the issues of plastic in the environment and to build a world class circular economy for plastic right here in Canada.

While Husky shares the goal of addressing plastic pollution, we fundamentally disagree with the use of the CEPA to address a waste management problem. As described in more detail in our comments below, Husky raises the following concerns with the proposed Order:

  1. "Plastic manufactured items" are not a toxic substance under the CEPA and therefore cannot be added to the List of Toxic Substances;
  2. The Ministers have no reasonable basis for recommending the Proposed Order.
  3. Labelling all “plastic manufactured items” as toxic has many negative unintended consequences, for Canadians and the environment that the Federal Government has not considered in their impact assessments.
  4. The regulation of plastic pollution, plastic products and the management of plastic waste trenches on provincial jurisdiction.
  5. The Regulatory Impact Analysis StatementFootnote 3  fails to consider the unintended consequences of the Order.
  6. The Order may be inconsistent with Canada's obligations under the World Trade Organization's ("WTO") Technical Barriers to Trade Agreement (“TBT Agreement”) and the Canada-United States-Mexico Agreement ("CUSMA").
  7. Global examples show that plastic pollution is a solvable problem without labelling plastic items as toxic.

Husky also submits that policy actions regarding plastics must be based on science and appropriate research. While the Federal Government has relied heavily on the Science Assessment of Plastic Pollution ("Science Assessment") as the basis for the Order and the regulatory measures proposed in the Discussion Paper, Husky has serious concerns regarding the conclusions drawn therein.Footnote 4  Specifically,

  1. The Science Assessment does not determine whether microplastics, macroplastics, or plastic manufactured items are toxic.
  2. The Science Assessment does not in fact support a finding that "plastic manufactured items" - or any plastic - are toxic under the CEPA.
  3. The Precautionary Principle is invoked without basis.
  4. Details of any peer review are unknown.
  5. Canadian studies are limited in conclusions and scope.

Husky submits that the management approach set out in the Discussion Paper should be used as a collaborative tool for ongoing improvement to achieve the integrative, holistic and comprehensive approach required to address plastic pollution and plastic waste effectively. To that end, Husky has provided constructive feedback on the Discussion Paper, including:

  1. The consultation process undertaken by the Federal Government has not permitted any meaningful feedback from stakeholders or demonstrated any consideration of the unintended negative consequences of the Federal Government's approach.
  2. Husky recommends the Discussion Paper be used as a tool for continuous improvement to identify areas requiring additional attention and treatment to meet the Zero Plastic Waste goals of the provinces, Canada and the Oceans Charter.
  3. Husky has provided recommendations that would permit the Discussion Paper to provide integrative, holistic and comprehensive approach required to address plastic pollution and plastic waste effectively (see Appendix "A").
  4. As currently written, the Discussion Paper stands to interfere with existing efforts at collaboration that have taken place within Canada and worldwide. For the Discussion Paper to be useful in providing guidance to achieve improved performance in environmental, economic and social sustainability, the Federal Government should work in collaboration with the CCME, industry and other stakeholders to ensure key factors are addressed and included in the approach.
  5. Plastic waste is a resource conservation issue. The Discussion Paper ignores innovation and technology in the reduction, reuse, recycling and recovery of plastic products that would permit Canada to be a world leader in the area.
  6. The Discussion Paper should incorporate the complimentary approaches of the Circular Economy and Sustainable Material Management, which examine efficiency over the whole lifecycle of a product.

2. About Husky

Husky is a Canadian company and is the world’s largest brand name and leading supplier of manufacturing solutions, including tooling, systems and services. Husky employs over 1,200 team members at our headquarters in Bolton, Ontario.

We design, manufacture and integrate the industry’s most comprehensive range of injection molding equipment, including machines, molds, hot runners, auxiliaries and integrated systems. Our value-added services include preform development, factory planning, customer training, systems integration and complete asset management.

With one of the broadest product lines in the industry, our equipment is used to produce a wide range of products for the beverage packaging, closures, thin wall packaging, medical, and consumer electronics markets. Husky employs approximately 4,200 people worldwide, including approximately 600 service representatives across 40 service and sales offices globally. Husky supports customers in over 140 countries, and our main manufacturing facilities are located in Canada, United States, Luxembourg, Switzerland, China, India and Czech Republic.

3. Canada's plastics economy

The plastics value chain employs thousands of Canadians across the country. That employment is significant: according to Deloitte’s Economic Study of the Canadian Plastic Industry, Markets and Waste (2019)Footnote 5  commissioned by ECCC (“Deloitte Study”), national direct employment is 93,000 Canadians in the plastics sector while indirect employment is estimated to be an additional 279,000 people. A third of employment in the entire plastic sector is in packaging with that employment concentrated in Ontario, Quebec and Alberta.

Unfortunately, Husky is aware that a chilling effect on new investment in Canada has already occurred following the Prime Minister's announcement in June 2019 of the Government of Canada’s intention to ban single use plastics. The unnecessary stigmatizing of "plastic manufactured items" as a toxic substance in Canada (a step not taken elsewhere in the industrialized world) will materially impact the future of what is currently a robust domestic industry. Future investments are at risk of being directed to jurisdictions that are prepared to work with industry on solutions rather than make designations under inappropriate legislation that stigmatizes their products and their industries.

There is broad agreement in society that the elimination of plastics litter, mismanaged waste released to the environment and keeping the valuable benefits of plastics resources available to Canadians is a priority. However, as acknowledged in the Regulatory Impact Analysis Statement and ECCC's Science Assessment of Plastic Pollution, only a very small percentage of Canada's plastic waste escapes managed waste streams and ends up as plastic pollution. Plastic pollution makes up only 1% of the total plastic waste generated in Canada. The remaining 99% of plastic waste is handled appropriately through recycling, landfills, or incineration - much of which is regulated at a provincial level.

While there is always room for improvement, Canada is managing plastic wastes well in comparison to other jurisdictions. To put Canada’s performance in perspective in global terms, a 2015 study ranked Canada #187 out #192 countries worldwide based on its estimated annual mass of mismanaged plastic waste.Footnote 6  China was the number one contributor of ocean plastics.Footnote 7

Husky supports continuous improvement and recognizes Canada can always do better. Through the CCME Zero Plastic Waste Strategy, Husky supports Canada's intention to reach the Oceans Charter goal of zero plastic waste. We must continuously improve to address the less than 1% of all plastics in the economy released through unmanaged landfills and litter caused by errant human behaviour across all sectors - construction, medical, transportation, packaging, textiles, electronics and other uses.

Instead of using outdated and harmful legislation that is not designed for these issues, the Federal Government should continue to work collaboratively with the provinces, industry and other stakeholders to manage plastics and by its own very words keep plastics value in the economy. Plastics play an essential role in our healthy living style and more recently the benefits of single use plastics ("SUP") in the fight to prevent the spread of COVID-19. Additionally, plastics will play an integral role in the delivery of the vaccine, providing a safe and hygienic delivery device as just one example.

4. Husky's comments on the Proposed Order

Husky is strongly opposed to the Proposed Order, which would result in the addition of "plastic manufactured items" to the List of Toxic Substances at Schedule 1 of the CEPA.

Respectfully, the management of plastic manufactured items using the toxic substances provisions of the CEPA and the List of Toxic Substances is not appropriate, nor is it supported by ECCC's own Science Assessment. To the contrary, using legislation that is intended to regulate substances that are obviously toxic in the ordinary sense to address a waste management issue will cause permanent and irreparable harm to the Canadian economy and environment.

(a) "Plastic manufactured items" are not a toxic substance under the CEPA and cannot be added to the List of Toxic Substances

Put simply, "plastic manufactured items" do not meet the criteria of a "toxic substance" set out at section 64 of the CEPA. They are therefore ineligible for addition to the List of Toxic Substances at Schedule 1 of the CEPA.

To be considered a "toxic substance" under the CEPA, a substance must be entering (or may enter) the environment in a quantity or concentration or under conditions that cause or may cause one or more of the following harms:

(a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity;
(b) constitute or may constitute a danger to the environment on which life depends; or
(c) constitute or may constitute a danger in Canada to human life or health.Footnote 8  [emphasis added]

The Science Assessment does not engage in any analysis of whether microplastics, macroplastics, or "plastic manufactured items" would meet the criteria of a "toxic substance" under section 64 of the CEPA. As a result, the Science Assessment does not reach any conclusion regarding the toxicity of "plastic manufactured items" under the CEPA.

Nor do the studies surveyed by the Science Assessment support the conclusion that microplastics, macroplastics, or plastic manufactured items are CEPA-toxic. As Husky addresses in detail in the discussion of the Science Assessment contained below, the conclusions of the studies reviewed fall short of meeting the criteria for toxicity. The findings of harm and potential harm identified therein are related only to individual receptors, and in any case, the connection between the quantity, concentration or conditions entering the environment to the potential harms caused are not made out. Furthermore, the Science Assessment does not connect the individual impacts identified in specific studies and the exposure levels at which a substance becomes CEPA-toxic.

(b) The Ministers have no reasonable basis for recommending the Proposed Order

Respectfully, the clear lack of scientific rigour that underpins the Proposed Order means that it cannot reasonably be grounded in the statutory context of the CEPA.

The CEPA sets out several rigorous, science-based pathways by which the toxicity of a substance may be assessed, including through a screening assessment (section 74), a review of a decision of another jurisdiction (section 75), or the assessment of a substance on the Priority Substance List (section 76).

The Ministers of Health and the Environment may also make a recommendation to the Governor in Council that a substance be added to the List of Toxic Substances pursuant to section 90(1), as currently is contemplated by the Proposed Order. While the CEPA does not set out a legislative process for this recommendation, ECCC itself notes that under section 90(1) of the CEPA:

A substance is "CEPA-toxic equivalent" if it satisfies the definition of "CEPA-toxic" as a result of a systematic, risk-based assessment. Such assessments can include determinations made under other federal statutes, or can incorporate appropriate elements of assessments done by or for provinces or territories, international organizations or other appropriate scientific authorities such as [the] Stockholm Convention [and the] Montreal Protocol.Footnote 9

[emphasis added]

Even where such an assessment was not conducted, a science-based determination of toxicity has historically been made before a substance was recommended for addition to the List of Toxic Substances. For example, the Science Summary of Microbeads explicitly considered whether microbeads met the definition of a "toxic substance" at section 64 of CEPA, and then reached a conclusion on the substance's toxicity based on the science reviewed in that summary.Footnote 10

In the case of the Proposed Order, however, none of the science-based risk assessments required by the CEPA, or the evaluations of toxicity that would otherwise underpin the exercise of the federal government's powers, are present.

The Science Assessment explicitly states that it "is not intended as a substitute for chemical risk assessment", and goes on to note that "typically, a chemical risk assessment is conducted to assess the potential for risk to the environment and human health associated with a substance."Footnote 11  However, such an assessment is not possible in this case:

...significant data gaps currently exist that preclude the ability to conduct a quantitative risk assessment, including a lack of standardized methods for monitoring microplastics and characterizing the environmental and human health effects of plastic pollution, as well as inconsistencies in the reporting of occurrence and effects data in the scientific literatureFootnote 12

[emphasis added]

Further, the Science Assessment does not reach a conclusion as to whether microplastics, macroplastics, or plastic manufactured items are toxic substances under the CEPA. This is a departure from the Science Summary on Microbeads, which did reach a conclusion on the toxicity of microbeads. In contrast, the Ministers lack such a determination to provide the basis for the Proposed Order.

Husky also takes issue with the Science Assessment's conclusion that the precautionary principle demands action on plastic pollution by the Federal Government. CEPA defines the precautionary principle as "where there are threats of serious or irreversible damage, a lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."Footnote 13

In the current circumstances, the condition precedent required to trigger the precautionary principle is missing. No "threat of serious or irreversible damage" is identified: the word "irreversible" does not appear in the Science Assessment, and no conclusion as to the seriousness of any damage noted in the studies reviewed is made. The Regulatory Impact Statement equally fails to demonstrate what threat of serious or irreversible damage has been identified by the Ministers.

Despite this, the Regulatory Impact Analysis Statement suggests that it is the precautionary principle, when combined with the contents of the Science Assessment, that warrant the Proposed Order:

Additionally, the Department maintains that the science assessment of plastic pollution provides the ministers with the evidence to recommend the addition of “plastic manufactured items” to Schedule 1 to CEPA in accordance with the precautionary principle, which would be consistent with the recommendation from the science assessment to take action to address plastic pollution.Footnote 14

There is simply no reasonable basis for issuing the Proposed Order where, as in this case, there is no foundation for defaulting to the precautionary principle and the Science Assessment fails to support a conclusion that "plastic manufactured items" are CEPA-toxic.

(c) The regulation of plastic pollution trenches on provincial jurisdiction

The addition of "plastic manufactured items" to the List of Toxic Substances for the purposes of controlling plastic pollution or plastic waste overreaches Parliament's powers to regulate truly toxic substances. Neither the term "plastic manufactured items" nor the process undertaken to add the term to Schedule 1 demonstrate the specificity and careful assessment that the Supreme Court of Canada has determined is required to validly exercise the federal government's criminal law powers.

In R v Hydro-Québec, [1997] 3 SCR 213 ("Hydro-Québec"), the Supreme Court of Canada held that the CEPA's toxic substances provisions were valid criminal legislation within the federal head of power, but that p they represented a "limited prohibition applicable to a restricted number of substances", as "enforced by a penal sanction and undergirded by a valid criminal objective".Footnote 15  The Court went on to note the following regarding the purpose of the statute:

This, in my mind, is consistent with the terms of the statute, its purpose, and indeed common sense. It is precisely what one would expect of an environmental statute -- a procedure to weed out from the vast number of substances potentially harmful to the environment or human life those  only that pose significant risks of that type of harm. Specific targeting of toxic substances based on individual assessment avoids resort to  unnecessarily broad prohibitions and their impact on the exercise of provincial powers.Footnote 16

[emphasis added]

If the Federal Government wished to comply with the legislative purpose of the CEPA in relation to a type of plastic polymer or a specific plastic manufactured item, it would undertake an assessment of the individual polymer or plastic manufactured item that posed the most significant risk of harm. The results of such an individual assessment, where it finds a significant risk of harm, could be used to support the addition of those individual substances or items to Schedule 1.

Instead, the Regulatory Impact Analysis Statement shows no intention of exerting the required level of specificity in the Proposed Order. The Regulatory Impact Analysis Statement itself is clear that its purpose is "to address the potential ecological risks associated with certain plastic manufactured items becoming plastic pollution."Footnote 17  In other words, ECCC itself recognizes that not all items that fall within the enormous category of "plastic manufactured items" pose the significant risk that warrants those items being designated as toxic. The Proposed Order is therefore unnecessarily broad and is likely outside of Parliament's powers.

Further, despite the recognition that plastic pollution arises from the "leaks" in managed waste management systems (e.g. through littering),Footnote 18  no effort has been made at identifying, assessing, and narrowing down what about a "plastic manufactured item" in Canada could in fact contribute to plastic pollution. Moreover, as noted above, there is no evidence that plastic manufactured items are being released into the environment in Canada under conditions contemplated under the toxic substance provisions of CEPA.

A further consequence of being overly unspecific is that the addition of "plastic manufactured items" would result in trenching on the province's jurisdiction over the production of plastic manufactured items and the management of plastic waste.

The Supreme Court held that federal powers over toxic substances should be applied only where the substance is not otherwise regulated:

There was no intention that the Act should bar the use, importation or manufacture of all chemical products, but rather that it should affect only those substances that are dangerous to the environment, and then only if they are not regulated by law.Footnote 19

According to Canada's studies, 99% of plastic waste is disposed of within a managed waste stream. The Government of Canada states that "in Canada, collection, diversion (recycling and composting) and disposal operations are the responsibility of municipal governments, while the provinces and territories are responsible for the approval, licensing and monitoring of operations."Footnote 20

However, it would be inaccurate to suggest that the estimated 1% of Canada's plastic waste that becomes plastic pollution by falling outside a managed waste stream (i.e., "leakage") is not regulated by law. Laws regulating litter, illegal dumping, and releasing substances into the environment are enforced at both the municipal and provincial level. Provincial transportation laws may require the coverage of loads carried by trucks.

The regulation by the Federal Government of "plastic manufactured items" through the CEPA would likely infringe on the provinces' well-developed exercises of provincial jurisdiction related to the development of non-renewable resources, plastic manufacturing, and recycling, as well as the management of waste, as set out in subsections of section 92 and 92A of the Constitution Act.

(d) The Regulatory Impact Analysis Statement fails to consider the unintended consequences of the Order

The Regulatory Impact Analysis Statement entirely ignores the considerable costs associated with labelling and stigmatizing "plastic manufactured items" as toxic, despite the CEPA's recognition of the importance of integrating "environmental, economic and social factors in the making of all decisions by government" to achieve sustainable development.Footnote 21  While ECCC suggests that "potential impacts to plastics-related industries and the broader Canadian economy would occur only in the event that the Ministers propose risk management measures for plastic manufactured items",Footnote 22  this ignores the cost of stigmatizing plastics by labelling them "toxic substances".

Even before any regulatory tools considered by the Discussion Paper are implemented, placing the nearly limitless category of "plastic manufactured items" on the List of Toxic Substances will have enormous harm to plastic producers by creating an immediate cooling effect on investment and innovation in the plastics industry in Canada. Such measures threaten to disrupt a robust plastics industry in Canada that currently serves to support critical domestic supply chains for many needed products. COVID-19 has demonstrated that the lack of manufacturing capacity in Canada to support critical supply chains can have detrimental impacts on the health, safety and security of Canadians.

The pandemic has shown us that Canada needs to have a strong independent supply chain and there is an exceptional opportunity for our country to emerge as a leader in delivering the solutions the global population so desperately needs. The proposed Order may make Canada more dependent on foreign nations for critical medical supplies and deter investment and innovation into green jobs. The Order may also impede the rapid response for medical devices and supplies required to protect Canadians in the fight against COVID-19.

The stigma of plastics being a "toxic substance" also stands to undermine public trust in plastic products at a time when plastics have never been more necessary for public health. Listing plastic manufactured items alongside other obviously toxic substances such as mercury, asbestos, and lead when plastic manufactured items are vital to the fight against COVID-19 is both misleading and reckless.

(e) The Order may be inconsistent with Canada's obligations pursuant to international trade agreements

With respect, the Regulatory Impact Analysis Statement's assertion that "the proposed Order would not directly relate to any domestic or international agreements or obligations" is mistaken.Footnote 23

Canada committed under CUSMA Sectoral Annex 12.A.4.3 to endeavour to use a risk-based approach to assessing specific chemical substances.Footnote 24  The proposal to add “plastic manufactured items” to the List of Toxic Substances for the purpose of banning or otherwise regulating certain plastic items under the CEPA flies in the face of this obligation. To endeavour is to attempt to do something; to make an effort. Canada has made no effort to use a risk-based assessment in adding “plastic manufactured items” to the List of Toxic Substances. Adopting this approach would constitute a violation of Canada’s international obligations under the CUSMA and would undermine Canada’s commitment to enhancing regulatory compatibility under that Agreement.

Adoption of the proposed approach would also be in contravention of Canada’s obligations under the WTO TBT Agreement.Footnote 25  Article 2.2 of the TBT Agreement requires WTO Members - including Canada - to ensure that technical regulations are not adopted with the effect of creating unnecessary obstacles to international trade. In other words, technical regulations must not be more trade-restrictive than necessary to fulfil a legitimate objective, in this case protection of the environment. A technical regulation is considered to be more trade restrictive than necessary if a reasonably-available alternative measure that is less trade restrictive would make an equivalent contribution to achieving the objective in question (protection of the environment).

Husky suggests that the proposed Order should in fact be considered a “technical regulation” under the TBT Agreement, and that less trade restrictive measures are available, such as specific laws and regulations to address the real issue - waste management - which falls within the constitutional powers of the provinces.

Moreover, the proposed technical regulations, if adopted, will have a significant effect on the trade of other WTO Members. Therefore, Canada is required under Article 2.9 of the TBT Agreement to publish a notice at an early stage of its intention to introduce the regulation in order to enable Members to become acquainted with it. Canada must also notify Members through the WTO Secretariat of the products to be covered by the proposed regulation, together with an indication of the objective and rationale of the regulation. Such notification must take place at an early stage when amendments can still be made and comments taken into account. WTO Members must be provided with reasonable time to make comments in writing and discuss these comments.

None of this has occurred. As a result, adoption of the proposed technical regulations prior to this taking place would put Canada in breach of its WTO obligations.

5. Comments on Science Assessment

Husky appreciated the opportunity to provide comments on the Draft Science Assessment on April 30th, 2020.

However, the Final Science Assessment released October 7, 2020 contains many of the same issues flagged by Husky in early 2020. As evidenced in the summary of public comments, other stakeholders share these concerns.Footnote 26

The plastics industry is a science, innovation and technology-driven sector. It is heavily involved in research and development and understands scientific processes and what constitutes valid science. Given the reliance placed on the Science Assessment to support the Ministers' recommendation of the Proposed Order and the emphasis given to its recommendations in the Discussion Paper, Husky wishes to flag the following shortcomings of the Science Assessment.

(a) The Science Assessment does not determine whether microplastics, macroplastics, or plastic manufactured items are toxic.

For the purposes of the CEPA, a substance is "toxic" where it meets the definition of section 64, which states that a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that (a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity; (b) constitute or may constitute a danger to the environment on which life depends; or (c) constitute or may constitute a danger in Canada to human life or health.

The Science Assessment does not assess its findings against these criteria. As a result, no determination of whether microplastics and macroplastics (and, by extension, "plastic manufactured items") are in fact "toxic substances" under the CEPA is made by the Science Assessment.

According to the authors, “the purpose of this report is to summarize the current state of the science regarding the potential impacts of plastic pollution on the environment and human health.”Footnote 27  The Science Assessment is clear that it is not intended as a substitute for a chemical risk assessment of plastics,Footnote 28  noting that:

...significant data gaps currently exist that preclude the ability to conduct a quantitative risk assessment, including a lack of standardized methods for monitoring microplastics and characterizing the environmental and human health effects of plastic pollution, as well as inconsistencies in the reporting of occurrence and effects data in the scientific literature.Footnote 29 

Despite the suggestion in the Regulatory Impact Analysis Statement that "the science assessment followed a similar approach to that taken for the science summary on microbeads",Footnote 30  this overlooks a key difference between the two reports. While the science summary on microbeads reached a clear conclusion regarding the toxicity of microbeads pursuant to section 64 of the CEPA,Footnote 31  the Science Assessment is silent on the toxicity of "plastic manufactured items".

In other words, the science-based recommendation relied on to add "microbeads" to the list of Toxic Substances in 2015 is notably absent from the Proposed Order in relation to "plastic manufactured items".

(b) The Science Assessment does not in fact support a finding that "plastic manufactured items" - or any plastic - are toxic under the CEPA.

Notwithstanding the lack of conclusion regarding toxicity, a review of the Science Assessment's conclusions demonstrate that the definition of "toxic substance" under the CEPA is not met. To be a toxic substance under the CEPA, a substance must present a risk of harm (as listed at subsections 64(a), (b), or (c)) and that risk of harm must be connected to the quantity, concentration, or conditions under which it is entering the environment.

The Science Assessment simply does not demonstrate that microplastics or macroplastics meet the definition of CEPA-toxic.

The Science Assessment rules out the possible application of subsections 64(a) and (b) to microplastics, noting that "evidence for potential effects of microplastic pollution on environmental receptors is less clear and sometimes contradictory, and further research is required."Footnote 32 

Likewise, in relation to subsection 64(c), the Science Assessment's concludes that neither microplastics nor macroplastics potentially constitute a danger in Canada to human life or health.Footnote 33 

As a result, the only possible determination of toxicity could be made pursuant to subsection 64(a) or (b) in relation to macroplastics. Such a determination would require evidence that macroplastics are entering (or may enter) the environment in a quantity or concentration or under conditions that have or may have an immediate or long-term effect and constituting a danger to the environment on which life depends.

Evidence to support a conclusion that macroplastics are CEPA-toxic is not present in the Science Assessment. While it concludes that "macroplastics have been demonstrated to cause physical harm to environmental receptors on an individual level and to have the potential to adversely affect habitat integrity"Footnote 34 , the Science Assessment falls short of determining that harm to individual receptors in and of itself constitutes an immediate or long-term effect, or a danger to the environment on which life depends that is necessary to engage section 64(a). Nor does the Science Assessment suggest that either (i) the harm in question or (ii) the potential adverse effect on habitat integrity would constitute or may constitute a danger to the environment on which life depends so as to engage section 64(b).

Even if these harms were judged sufficient to warrant a finding of harm under subsections 64(a) or (b), the vital link between harm and exposure (i.e., "the quantity, concentration or conditions under which the substance is entering, or may enter, the environment") is not made out. The Science Assessment explicitly acknowledges that for macroplastics, due to "the absence of standardized methods and techniques", "it is not possible to quantitatively characterize environmental or human exposure levels at this time".Footnote 35 

In conclusion, a careful review of the Science Assessment's findings demonstrates why a conclusion on toxicity is not made: the science reviewed simply does not support a finding that microplastics or macroplastics can, in fact, meet the definition of a "toxic substance" pursuant to section 64 of the CEPA.

(c) The Precautionary Principle is applied without basis

As noted in the Discussion Paper, the Science Assessment advocates using the precautionary principle to take action to reduce plastic in the environment.

However, the precautionary principle as defined in the CEPA is to be applied "where there are threats of serious or irreversible damage".Footnote 36  No such conclusion is reached by the Science Assessment: the word "irreversible" does not appear in the Science Assessment, and no conclusion as to the seriousness of any damage noted in the studies reviewed is made.Footnote 37  Nor, as noted above, does the evidence contained therein support that such a threshold is being reached.

Based on the foregoing, the necessary threshold to trigger the precautionary principle is absent and its use is inappropriate.

(d) Details of any peer review are unknown

The authorship of the Science Assessment is unknown. Further, the peer reviewers of this report are unknown. This is not standard scientific protocol, not transparent and makes reasoned dialogue about the Science Assessment impossible in practice.

(e) Canadian studies are limited in conclusions and scope

The scope of the actual plastics problem in Canada is not adequately assessed. No effort is made to quantify the amount of plastic in the environment in Canada and therefore the extent of or magnitude of the problem.

To the contrary, the Science Assessment appears to dismiss the fact that many plastics have been found to be inert and not inherently toxic by Canadian authorities and in response to rigorous scientific testing. The Science Assessment glosses over Canadian research concerning the toxicity of plastics, noting that "many of the chemicals observed to be bound to plastic particles have been assessed by various programs at Environment and Climate Change Canada (ECCC) and Health Canada”.Footnote 38  This fails to acknowledge that over 2,275 plastic polymers have been approved by Health Canada Safety Branch and the US Health Safety Branch.Footnote 39 

For example, ECCC and its predecessors have analyzed styrene, a building block of polystyrene, not once but twice to determine whether it is a "toxic substance" pursuant to the CEPA definitions. It was determined to not be toxic on both occasions.Footnote 40  Styrene is actually a naturally occurring element and is found in commonly consumed foods such as strawberries, peaches, cinnamon, beef and coffee. These studies were not included in the Science Assessment.

6. Husky's comments on the Discussion Paper

(a) General comments

Husky has provided detailed, issue-by-issue comments on the Discussion Paper and its questions for discussion in the enclosed Appendix "A".

Our key comments and recommendations regarding the Discussion Paper and Federal Government's proposed policy approach under CEPA are the following:

  1. The consultation process undertaken by the Federal Government has not permitted any meaningful feedback from stakeholders or demonstrated any consideration of the unintended negative consequences of the Federal Government's approach.
  2. Husky recommends the Discussion Paper be used as a tool for continuous improvement to identify areas requiring additional attention and treatment to meet the Zero Plastic Waste goals of the provinces, Canada and the Oceans Charter.
  3. As set out in detail in Appendix "A", the Discussion Paper requires extensive revisions before it can provide the integrative, holistic and comprehensive approach required to address plastic pollution effectively. For the Discussion Paper to be useful in providing guidance to achieve improved performance in environmental, economic and social sustainability, the Federal Government should work in collaboration with the CCME, industry and other stakeholders to ensure key factors are addressed and included in the approach. As currently written, the Discussion Paper stands to interfere with existing efforts at collaboration.
  4. Plastic waste is a resource conservation issue. The Discussion Paper ignores innovation and technology in the reduction, reuse, recycling and recovery of plastic products that would permit Canada to be a world leader in the area. Harnessing this innovation would permit Canada to capture the $7.8 Billion in otherwise lost opportunities identified in the Deloitte Study by transforming used plastic resources into new feedstocks for manufacturing, new products and energy.Footnote 41  In Husky's estimation, the benefits from this approach would actually exceed $7.8 Billion since plastics throughout its lifecycle conserves resources and energy that the alternatives do not.
  5. The Discussion Paper should incorporate the complimentary approaches of the Circular Economy and Sustainable Material Management, which examine efficiency over the whole lifecycle of a product.

In short, the Discussion Paper falls far short of providing an integrated and holistic approach to protecting the environment from plastic pollution. The measures it proposes fail to support building back a better economy after COVID-19. Husky suggests that the discussion of banning single use plastics before taking meaningful steps to support innovative solutions that would improve recovery shows a narrow approach to the problem.

The Federal Government's approach also fails to assess the viability and unintended impacts of those alternatives, and the impact of the very instruments the government proposes to use to manage plastics and waste. The economic and environmental costs, jobs lost and gained, investment and disinvestment in local and provincial economies by province are absent from the Discussion Paper.

(b) Suggested revisions to the Discussion Paper

The management approach set out in the Discussion Paper is a direct result of the Federal Government's narrow focus on the use of the CEPA to manage plastics by adding "plastic manufactured items" to the List of Toxic Substances at Schedule 1 of the CEPA. As detailed below, the Science Assessment does not support or provide evidence on toxicity. The mismanaged plastics issue is a less than 1% waste management challenge that should be addressed through more appropriate instruments such as Extended Producer Responsibility and the CCME Zero Plastic Waste Strategy implemented at the provincial level to meet local economic, environmental and social needs.

Given the foregoing, Husky believes the government should withdraw its CEPA-based approach to managing plastics, based on the overwhelming evidence that plastics are not toxic.

Separately, however, Husky believes that the management approach proposed in the Discussion Paper has value if it is improved to make it truly integrated and holistic. Providing a tool by which to assess all products and materials would enable continuous improvement and help the industry to meet economic, environmental and social sustainability goals.

Elements of the ECCC Discussion Paper, like Life Cycle Assessment Tools ("LCA"), should be utilized to provide guidance and direction on “additional waste management needs” to improve environmental goals and objectives and not used to implement policy decisions such as bans. If the Discussion Paper is to provide a value-added guidance tool, Husky recommends that the following measures be integrated.

Take an integrated & holistic approach: The current approach needs to be more integrated and holistic to assess plastics and all alternatives to truly drive continuous improvement in environmental outcomes. Currently the approach is narrowly focused on plastics with no assessment of alternatives which may or may not provide improved environmental performance with regards to carbon footprint, energy use, greenhouse gas potential, water and air emissions and other key criteria.

Redefine the categorization criteria of environmental & value recovery problematic: The Discussion Paper only examines the “plastic manufactured items” through the narrow lens of Circular Economy ("CE"), which does not address full lifecycle impacts and other critical factors that a complimentary approach such as Sustainable Material Management ("SMM") would provide.

Data, considerations and tools that should be included in the ECCC Discussion Paper to inform good guidance and policy direction are:

7. Alternatives for consideration

Husky is concerned that the use of the CEPA and the approach set out in the Discussion Paper appear to ignore the constructive and collaborative work that is ongoing in Canada and globally to address the issue of plastic pollution.

Husky is confident that alternative approaches to plastic waste management are readily available to assist the Federal Government to meet its policy goals. In addition to the concepts of the complimentary approach of SMM outlined in relation to the Discussion Paper, a few of these options are set out below.

(a) CCME Zero Plastic Waste Strategy

Husky supports the important work of the CCME, including the Strategy on Zero Plastic Waste,Footnote 42  as it uses science and data to avoid the negative unintended environmental, economic and social consequences of banning individual product types. We note that CCME's strategy was developed collaboratively with all levels of government, industry and other stakeholders to eliminate plastic waste, and as a result has the the support of all levels of governments, industry and stakeholders.

(b) Provincial action on waste management and recovery

Canada is recognized for its advanced waste management and recovery systems (such as the United Nations' recognition of Ontario's early actions with Blue Box recycling)Footnote 43  to manage plastic and other waste resources.

A made-in-Ottawa, CEPA-based approach that is one-size-fits-all simply cannot be sensitive to local needs on many levels. Provincial approaches to waste management is implemented through the provinces in accordance with their powers under the Constitution Act, 1867 over waste management and resources. Industry partners are actively involved in these systems through extended producer responsibility and design changes to their products to support reduction, reuse, recycling and recovery of plastic resources.

The Federal Government's proposed actions using the CEPA would interfere with these existing schemes and with the provinces' waste resource recovery plans, and will in fact be an impediment to establishing the Plastics Circular Economy.

8. Conclusion

Husky and the plastics industry is committed to protecting the environment, economy and consumer's health and safety through the responsible management of our products. Husky is pleased to see the Federal Government recognize the essential role played by plastics in our healthy lifestyle and protection of the environment and economy. The Discussion Paper is best utilized as a tool for continuous improvement to reach our societal goals of Zero Plastic Waste.

Husky is strongly opposed to the Proposed Order. This action is unsupported by science, including ECCC's own Science Assessment, which failed to conclude or even identify that macroplastics and microplastics could fall within the definition of a "toxic substance" for the purposes of the CEPA. The Science Assessment also fails to demonstrate any science that would trigger the use of the precautionary principle and a declaration of toxicity under the CEPA.

Husky is committed to driving recycling, keeping plastics in the value stream and out of landfills and the natural environment. Developing sustainable end markets, investments in advanced technologies for processing, design and recyclability requirements, post-consumer recycled content requirements and greater consumer education and awareness are the keys to reducing the amount of plastics going into landfills or waterways. This can be accomplished through CCME’s approach with collaborative effort between federal, provincial, municipal, industry and other stakeholders.

Thank you for allowing us to contribute to this consultation and ask that our detailed response in the appendix be reviewed. We would appreciate the opportunity to meet with you to discuss our position and better ways to manage plastics.


Sincerely,

Husky Injection Molding Systems Ltd.

Joachim Niewels
Vice President, Innovation and Sustainability

cc:

Hon. Jonathan Wilkinson, Minister of the Environment and Climate Change
Hon. Patty Hajdu, Minister of Health
Hon. Mary Ng, Minister of Small Business, Export Promotion and International Trade
Hon. Chrystia Freeland, Deputy Prime Minister and Minister of Intergovernmental Affairs


Appendix "A"

Detailed Response to the Discussion Paper

Questions for discussion

Managing single-use plastics

1. Are there any other sources of data or other evidence that could help inform the development of the regulations to ban or restrict certain harmful single-use plastics?

Comment:

We believe the Discussion Paper should be a tool to identify areas where additional or special treatment should be applied to products and not bans. As mentioned earlier in our response, the Environment and Climate Change Canada ("ECCC") proposed integrated management approach to plastic products discussion paperFootnote 44  (the "Discussion Paper") is not an integrated approach to managing plastics as it does not address policy alternatives and their impacts. The approach requires extensive upgrades and expansion to assess alternatives and impacts beyond the environment dealing with economics, life cycle impacts, health and safety among many other factors.

Scientific research informs us that banning products is not the solution for reducing plastics waste and environmental impacts. Bans will instead lead to unintended consequences such as increased greenhouse gas (GHG) emissions, increased energy usage and more waste in our environment from alternatives substituting plastics.Footnote 45  We believe that the shape and weight of a product and not just the material that it is made from can contribute to waste diverted from the recycling stream to landfills or incineration. This can be described as the “form factor”. In a material recovery facility (MRF) where post-consumer recycled material is collected and sorted, small objects end up in a waste stream instead of a value recovery stream. The size, shape and weight are contributing factors to valuable materials “slipping through the cracks” of the recycling stream and not being effectively sorted, no matter the type of material. We encourage the federal government to include form factor when evaluating alternatives to plastic and encourage investment in innovative technologies and infrastructure improvements to address value recovery of post-consumer recycled material.

2. Would banning or restricting any of the six single-use plastics identified impact the health or safety of any communities or segments of Canadian society?

Comment:

The Federal Government's proposed ban on certain single-use plastics ("SUP") will impact Canadian society negatively. It will introduce risks on Canadians’ health on a number of levels which includes environment, economic, quality of life, food safety & health, workplace safety and cost of living for all segments of society but especially for lower income groups.

Bans create negative unintended consequences that the ECCC Discussion Paper has not assessed. Further, the Discussion Paper is not even in a position to attempt an assessment of negative consequences because it is does not present a fully integrated approach to managing plastics resources and other alternatives, or to review all externalities associated with material use and preservation of natural capital.

Environment:


What is the environmental cost associated with the materials we use in consumer products and packaging?

Figure showing environmental cost associated with the materials we use in consumer products and packaging.
Long description for figure

Image shows the environmental cost associated with the materials we use in consumer products and packaging. More sustainable plastic at $98 billion, business as usual plastic at $139 billion and alternative to plastic at $533 billion.

The cost of using alternative materials is approximately four times that of using plastic (in a business as usual scenario). We're producing more and more consumer goods, so choosing the material that creates the least impact is important.

Figure showing the costs to society and the economy.
Long description for figure

The image shows the costs to society and the economy.

For Damage to the health of humans and ecosystems: Business as usual plastic at $63 billion and Alternatives to plastic at $343 billion.
For Climate change: Business as usual plastic at $71 billion and Alternatives to plastic at $183 billion
For Damage to the oceans: Business as usual at $5 billion and Alternatives to plastic at $7 billion.

All values are in USD.

Source: Trucost Plastics and Sustainability: A Valuation of Environmental Benefits, Costs and Opportunities for Continuous Improvement


Economic:

Quality of life:

Health and hygiene

Cost of living

3. How can the Government best reflect the needs of people with disabilities in its actions to ban or restrict certain harmful single-use plastics?

4. Should innovative or non-conventional plastics, such as compostable, bio-based or biodegradable plastics be exempted from a ban or a restriction on certain harmful single-use plastics? If so, what should be considered in developing an exemption that maintains the objectives of environmental protection and fostering a circular economy for plastics?

Establishing performance standards

5. What minimum percentage of recycled content in plastic products would make a meaningful impact on secondary (recycled resin) markets?

6. For which resins, products, and/or sectors would minimum recycled content requirements make the greatest positive impact on secondary (recycled resin) markets? Why?

Please see answers to 7, below.

7. Which resins, products or sectors are best-placed to increase the use of recycled plastic and why?

8. Which plastic products are not suitable for using recycled content due to health, safety, regulatory, technical or other concerns?

9. What should be considered in developing timelines for minimum recycled content requirements in different products?

10. What would be the advantages and disadvantages to setting minimum percentage requirements that are distinct for each product grouping, sector, and/or resin?

11. How could compliance with minimum recycled content requirements be verified? How can the Government and industry take advantage of innovative technologies or business practices to improve accuracy of verification while minimizing the administrative burden on companies?

12. Besides minimum recycled content requirements, what additional actions by the government could incentivize the use of recycled content in plastic products?

13. How can the Government of Canada best support provinces and territories in making their extended producer responsibility policies consistent, comprehensive, and transparent?

Comment:

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