Proposed risk management instruments for products containing mercury: response to comments

A consultation document entitled Proposed risk management instruments for mercury-containing products was posted on the CEPA Registry in December 2007 and public comments were invited until March 7, 2008. Identified stakeholders were advised of the comment period via regular mail, and consultation sessions were held in Vancouver and Toronto. Input on the discussion document was received from stakeholders from industry, industry associations, government departments and environmental and health organizations. These stakeholders, who attended the consultation sessions and/or submitted written comments, included the following:

In general, stakeholders were supportive of regulating mercury containing products. Comments included views on the provision of exemptions for specific products, the manner in which various products should be targeted, the availability of alternatives, implementation challenges and appropriate strategies for end of-life management. Comments were also submitted on overarching strategies for managing mercury, including public education, participation in international initiatives and the development of a Government of Canada mercury strategy.

Stakeholder comments were broadly summarized and organized into the following eight categories, with responses provided in the table below.

All comments will be considered in the development of proposed regulatory instrument(s) for controlling mercury-containing products.

Prohibiting mercury-containing products
Comment summary Response
While stakeholders generally endorsed the management of some or all mercury-containing products in Canada, it was questioned whether life-cycle analyses supported a broad prohibition.

National mercury releases from the use and disposal of mercury-containing products are diffuse and difficult to estimate through direct measurement. However, life-cycle analyses demonstrate that releases can occur during all stages of a product's life, and that atmospheric emissions from products are in the order of four tonnes per year in Canada.

The Government's actions to protect the environment and health are guided by the precautionary principle, which states that "where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation."

Mercury is persistent, toxic and bioaccumulative. Alternatives to most mercury-containing products are readily available in the marketplace and a prohibition is an efficient means of "turning off the tap" for releases from new products.

In a report published on March 4th, 2008, the Standing Senate Committee on Energy, the Environment and Natural Resources recommended that the Government of Canada move immediately to develop and implement regulations under the Canadian Environmental Protection Act, 1999 to manage the risk posed by products containing mercury.

It was also questioned whether the use of mercury-containing products, particularly products other than dental amalgam and compact fluorescent lamps, would simply continue to decline and disappear over time without the need for a prohibition. The relatively low price of mercury and the increasing surplus in the marketplace, coupled with the fact that mercury has very useful technical properties, provides an increasing economic incentive for companies to preserve their current uses of mercury and could potentially result in mercury being used in new products. The extent to which this trend may occur is very difficult to predict and depends a great deal on the risk management instruments employed internationally. The proposed prohibition would ensure that the use of mercury in products is reduced to the lowest level in Canada. It will also ensure that products prohibited in other jurisdictions will not end up for sale in the Canadian marketplace.
Other views were that dental amalgam and lamps should continue to be managed using a voluntary approach. An approach under the Canadian Environmental Protection Act, 1999 is being proposed because Environment Canada has deemed that while commendable progress was made by Canadian manufacturers in voluntarily achieving the targets under the Canada-wide standard for mercury-containing lamps, there is a need to achieve reduced mercury levels in all lamps (that is, imports) sold in Canada. Further, results arising from the voluntary approach under the Canada-wide standard on mercury for dental amalgam waste were not sufficient to meet the objectives of the Government of Canada's Chemicals Management Plan.
Opinions differed on whether specific products should be exempted from a prohibition. Some stakeholders felt that there should be no exemptions. Some felt that exemptions were appropriate for dental amalgam and lamps, as long as a life-cycle approach was taken and end-of-life measures like extended producer responsibility and pollution prevention planning were introduced. Others felt that end-of-life management should only be used as an interim strategy until all products are eliminated. It was also suggested that a phase-out period for certain products would be useful.

The proposed regulations will establish a general prohibition on mercury-containing products, excluding dental amalgam, and will impose content limits for mercury-containing lamps. These exemptions are proposed due to the lack of viable alternatives and the need for the continued use of these products in Canada. The overall approach will also include developing end-of-life measures for any exempt products.

According to Health Canada, the use of dental amalgam is not causing illness in the general population, and alternative materials are more expensive and are difficult to place. Environmental risks from amalgam result from improper disposal from dental practices. Targeting amalgam waste through a pollution prevention planning notice will build on progress made under the Canada-wide standard on mercury for dental amalgam waste and will prevent mercury releases to the environment from this source.

Mercury-containing lamps are diverse in form and function and their use can lead to significant reductions in energy demand. Targeting the prevention of releases from end-of-life lamps will balance their risks against Canada's actions on clean air, energy efficiency and reducing greenhouse gases.

While phase-out periods are not under consideration at this time for various products, exemptions under the prohibition will be subject to periodic review, based on innovations in the research and development of alternatives.

Some stakeholders felt that there should be the option of exemptions for necessary specialty equipment (for example, in research, medicine, and health and safety applications) for which alternatives do not exist. Certain conditions like extended producer responsibility or pollution prevention planning could apply. It is anticipated that the proposed regulations will contain provisions for allowing an exemption for specific products for which alternatives do not exist. There will be mandatory labelling and reporting requirements in addition to conditions concerning end-of-life management. Such exemptions would be subject to periodic review and the availability of mercury free alternatives. Stakeholders should inform Environment Canada about these products as soon as possible.
It was pointed out that products not in the discussion document could also be captured under a regulation (for example, cosmetics, fungicides, fireworks detonators, pigments and toys), but that some may be covered under other legislation. The proposed regulations are anticipated to take the form of a general prohibition. Where products are managed under other regulations, consultations will be held with the responsible department to ensure that the risks of mercury to the environment are managed.
Stakeholders requested clarification on whether the regulations will apply to both consumer and commercial products, and whether background mercury levels will be taken into consideration. The proposed regulations are anticipated to take the form of a general prohibition that encompasses all products to which mercury has been intentionally added. This would include both consumer and commercial products.
There were concerns that a life cycle management approach would need to take the movement of goods and waste into account, including transportation, storage, recycling, treatment and trans-boundary issues.

Some aspects of waste management are dealt with under existing regulations. Transport Canada's Transportation of Dangerous Goods Regulations have requirements for elemental mercury pertaining to movement documentation, packaging, accidental release reporting and the classification of dangerous goods for safety in transport purposes.

The Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations and the Interprovincial Movement of Hazardous Waste Regulations under the Canadian Environmental Protection Act, 1999 have movement tracking provisions for mercury and requirements that the hazardous waste or hazardous recyclable material be disposed of or recycled in an environmentally sound manner at authorized facilities.

Any additional end-of-life measures under the proposed approach will address complementary elements of management for waste from exempted products.

Specific sources of mercury emissions from products (for example, crematoria) were proposed to be included in the regulations. The proposed regulations will not address controlling point-source atmospheric emissions such as emissions from crematoria. Since the 1970s, domestic emissions have been reduced by over 90%. This was accomplished through identifying and managing the largest sources in a phased approach. Environment Canada will continue to build on this history of mercury management through the implementation of current and proposed measures, and will continue to monitor any remaining sources with a view to managing releases in order to protect Canadians.
Concerns were raised regarding the development and introduction into the marketplace of new mercury containing products before the proposed coming into force of the regulations in 2012. As of 2012, under the proposed approach there will be a general prohibition on all mercury-containing products, including new products and any products that have been introduced into the marketplace in the interim, unless they have been exempted. Environment Canada will continue to communicate with stakeholders to help ensure that stakeholders are aware of timelines and requirements.

The potential stockpiling of goods was mentioned in addition to the risk that Canada may become the destination for products prohibited for sale in other countries. Under the proposed approach, the import of most mercury containing products will be prohibited to ensure that Canada does not become a "dumping ground" for products prohibited in other jurisdictions. Stockpiling is a potential concern, and diverse options will be considered in determining an appropriate course of action for the disposal of mercury containing products in Canada.
Stakeholders felt that reviewing activities and control measures in other jurisdictions would facilitate the regulatory development process and provide valuable lessons learned. Environment Canada has investigated the actions of other countries to reduce mercury releases from products and will stay informed on developments in support of domestic efforts. For a general overview of international risk management actions on mercury-containing products, see Appendix C in the discussion document entitled Proposed risk management instruments for mercury-containing products.
It was suggested that the federal government should support research and development for product alternatives, particularly for lamps and dental amalgam. There is currently no Environment Canada initiative in place to provide funding for research and development into alternatives to mercury-containing lamps or dental amalgam. By restricting the mercury content in lamps, and developing end-of-life requirements for exempt mercury-containing products under the proposed approach, Environment Canada is indirectly providing an incentive for the development of mercury-free alternatives.
There were concerns that there should be a strategy in place, with sufficient resources to address compliance and enforcement issues, particularly given the wide range of imported products targeted. Compliance and enforcement approaches will be evaluated during the regulatory development process, taking into consideration factors such as compliance promotion activities that may be required, possible enforcement activities and requirements under the Cabinet Directive on Streamlining Regulation.
There was a recommendation that an implementation committee should be formed to review trade statistics, end-of-life management and implementation.

The suggestion of an implementation committee will be considered during the regulatory development process.

Implementation of the proposed regulations would be undertaken in accordance with the principles set out in the Compliance and enforcement policy for the Canadian Environmental Protection Act, 1999.


Comment summary Response
Mercury in compact fluorescent lamps should be restricted to the lowest possible level. The intent under the proposed regulations is to restrict the mercury content in exempt lamps to the lowest possible level. The content limits will be reviewed periodically with a view to lowering the limits or to removing the exemption on lamps should alternatives become available.
Different limits for different lamp applications may be needed. Different limits for different lamp types are being explored. It is recognized that the same mercury content will not be applicable for all lamps.
If mercury-free alternatives exist for certain lamp applications, then those lamps should not be exempt from a prohibition. If there are mercury-free alternatives for certain lamp applications which deliver comparable energy savings and performance, the mercury-containing lamps will be prohibited under the proposed general prohibition regulations.
It is critical to understand the risks of compact fluorescent lamps before mercury content limits are set (releases to consumers during use and from breakage). Environment Canada collaborates with Health Canada when developing and proposing regulations and monitors any scientific developments that may relate to health impacts. Health Canada is currently preparing guidance for the general public on avoiding potential risks from the use of compact fluorescent lamps.


Dental amalgam
Comment summary Response
Stakeholders suggested that suitable substitutes to dental amalgam are now available and therefore amalgam should not be exempt from a prohibition.

According to Health Canada, current evidence does not indicate that dental amalgam is causing illness in the general population. Furthermore, alternative materials are more expensive than amalgam, most are not as strong or durable in locations where they are subject to the forces produced by chewing or parafunctional movements (grinding), and they are technically difficult to place.

The main pathway for mercury from dental amalgam to enter the environment is through improper disposal.

While progress was made under the Canada-wide standard on mercury for dental amalgam waste, risks will be further managed through a pollution prevention planning notice targeting this life cycle stage.

It was felt that dentists should be obligated to inform their patients about the mercury content of dental amalgam, and to provide them with Health Canada's advice on its use for pregnant women and children.

Health Canada recognizes that it is a good idea to reduce exposure to mercury if this can be achieved at a reasonable cost and without other adverse effects. In 1996, Health Canada sent a letter to dentists encouraging them to decrease the use of amalgam where feasible and to inform patients of their choice in having alternate materials used for tooth restoration. However, Health Canada does not have the authority to oblige dentists to inform patients.

Building on the Canada-wide Standard, the pollution prevention planning notice for dental amalgam waste will require dentists to consider the best management practices provided in the memorandum of understanding between Environment Canada and the Canadian Dental Association. These include remaining abreast of advances in restorative materials and providing patients with complete information about the benefits and risks associated with the various restorative materials available.

There was a suggestion that Health Canada should remain the only department regulating the use of dental amalgam.

Dental amalgam is subject to the general safety provisions of the Food and Drugs Act and Medical Devices Regulations. Health Canada has the authority to regulate its sale if there is a safety concern.

Both the Minister of the Environment and the Minister of Health jointly administer the Canadian Environmental Protection Act, 1999. Mercury is listed as a toxic substance on Schedule 1 of the act, giving both Ministers the power to manage the use and releases of this substance.

The Minister of the Environment has determined that the release of mercury from dental amalgam waste warrants reduction efforts to protect the environment.

There were conflicting views on whether the management of dental amalgam should build on the Canada-wide standard and the memorandum of understanding between Environment Canada and the Canadian Dental Association. Approximately 70% of dentists in Canada voluntarily implement the best management practices for preventing the release of mercury from dental amalgam waste, as outlined in the memorandum of understanding. The best management practices are comprehensive and will form the basis of the factors to consider in the pollution prevention planning notice.
Opinions differed on whether pollution prevention planning would be stringent enough to prevent mercury releases from dental amalgam waste. Persons who do not comply with the requirements under a pollution prevention planning notice are subject to enforcement actions under the Canadian Environmental Protection Act, 1999 and the principles set out in the Compliance and enforcement policy for the Canadian Environmental Protection Act, 1999.
Stakeholders felt that consultations with dentists should start as soon as possible to ensure compliance and proper management of dental amalgam waste. Extensive consultations have occurred with dentists and the Canadian Dental Association to promote the implementation of the Canada-wide standard. Dentists should be well aware of appropriate best management practices as outlined in the memorandum of understanding between Environment Canada and the Canadian Dental Association, which include installing amalgam separators. Dentists not in compliance with requirements under the pollution prevention planning notice will be subject to enforcement actions under the Canadian Environmental Protection Act, 1999 and the principles set out in the Compliance and enforcement policy for the Canadian Environmental Protection Act, 1999.
There were various issues raised relating to alternatives for dental amalgam. For example, it was suggested that the durability and health effects of alternatives should be reviewed. Other suggestions included requiring insurance providers to cover the more expensive alternatives to amalgam or increasing the cost of amalgam fillings.

Environment Canada manages the release of toxic substances to the environment in order to protect environmental and human health. The main pathway for mercury from dental amalgam to enter the environment is through improper disposal. Environment Canada has chosen to employ a pollution prevention planning notice targeting this life cycle stage to prevent mercury releases from dental amalgam.

Alternate tooth filling materials are subject to pre-market review and licensing by Health Canada. Health Canada has no authority to set the price of amalgam fillings, or to compel insurance providers to cover the cost of alternative fillings (although many dental insurance plans already do).

It was questioned whether a minimum amalgam waste generation threshold should be set to require a separator. Building on the Canada-wide standard and the memorandum of understanding between Environment Canada and the Canadian Dental Association, there will be no minimum threshold under the pollution prevention planning notice; however it will not target specialties that do not typically generate dental amalgam waste.
It was mentioned that there is a level playing field element between provinces to consider on this issue. Environment Canada is aware that, although the Canada-wide standard on mercury for dental amalgam waste targets all dental practices in Canada, implementation has not been consistent across the country. The pollution prevention planning notice will target dentists who have not implemented the Canada-wide Standard to ensure uniform performance nationally.
The implementation of performance agreements and the possibility of having a form of taxation were mentioned as potential hybrid approaches. Environment Canada evaluates a wide range of management tools in order to determine which is most appropriate for meeting specific risk management objectives. This encompasses voluntary measures and all instruments under the Canadian Environmental Protection Act, 1999, including market-based instruments. Pollution prevention planning was selected as the most appropriate tool to reduce releases from dental amalgam waste. This approach will only target dentists who have not implemented the Canada-wide standard, and not penalize dentists who have been proactive and have acted voluntarily.


End of life
Comment summary Response
There was general agreement that managing the risks from end-of-life products is essential, taking into account the ultimate fate of mercury. It was suggested that parallel discussions on end of life should take place during the development of the proposed instruments, possibly through the Canadian Council of Ministers of the Environment. A discussion document on end-of-life options was also requested for immediate development.

In Canada, the management of hazardous waste and hazardous recyclable material is a shared responsibility between the federal government and the provinces/territories. The federal government is responsible for hazardous wastes and hazardous recyclable materials crossing an international boundary, or for movements between provinces or territories in Canada, that are destined for disposal or recycling. The provinces have jurisdiction over the transportation of hazardous wastes within the various provinces, and are responsible for licensing and permitting of authorized facilities undertaking disposal or recycling operations, and for authorizing carriers.

Environment Canada is currently assessing the capacity to manage mercury-containing wastes in Canada.

Collaborating with other orders of government will be crucial to ensure that appropriate end-of-life measures are introduced.

As a first step, a technical working group comprising provinces, producers, retailers, recyclers and non-governmental organizations will be convened this summer to develop recommendations on a framework for the management of end-of-life fluorescent lamps.

Some stakeholders endorsed extended producer responsibility for lamps, and supported targets consistent with European Union and United States (80%) initiatives. Environment Canada will consider extended producer responsibility and evaluate collection rates and targets in other jurisdictions when determining the most appropriate course of action for lamps in Canada.
Questions were raised over who would be responsible for funding and creating the infrastructure for managing legacy product waste. It was suggested that all life cycle stages should be considered (manufacturer, importer, retailer and consumer), and that multiple parties should be included in extended producer responsibility programs. Responsibility for waste is a shared jurisdiction in Canada. Environment Canada will work with provincial, territorial and municipal governments to determine areas of responsibility and the most appropriate course of action for end-of-life mercury containing products in Canada. The goal will be to ensure that appropriate parties assume responsibility for the costs of preventing pollution.
It was suggested that legacy waste could be quickly and efficiently managed through financial support for the expansion and promotion of existing non-profit programs. It was also suggested that pilot collection programs would be useful in developing a framework.
Environment Canada will consider diverse options, including existing programs, in determining the most appropriate course of action for end-of-life mercury-containing products in Canada.
Stakeholders indicated that a coordinated approach involving all three levels of government would be needed for the effective management of mercury-containing products. This could build on existing legislation, product stewardship and collection programs, and would provide consistency for governments and for producers in meeting various standards.
It is recognized that waste is a shared jurisdiction. Environment Canada will collaborate with provinces and territories in addition to municipalities, building on existing initiatives where possible.
It was felt that specifying how to handle waste would be useful for municipalities. A guidance document has been prepared for municipalities in order to assist with programs for mercury-containing products.
Concerns were raised that workload and resource requirements for municipalities to implement strategies have to be taken into account.
Costs are part of the socio-economic analysis conducted when developing regulatory instruments.
Environment Canada was encouraged to take a leadership role in the management of mercury containing waste at federal facilities to assist provinces and municipalities. Environment Canada continues to promote lamp recycling and the management of other mercury-containing products in federal operations. A manual for the management of mercury at federal facilities is available on-line.


Reporting and labelling
Comment summary Response
Stakeholders generally agreed that products not prohibited should have labelling and reporting requirements. Some felt that reporting every two years would be fair. It is the intention to require labelling for non-prohibited products, and to require annual reporting under the proposed regulations.
Stakeholder input focused on what the labelling requirements would be. Some felt that the most important consideration would be minimizing text, given limited space. Others felt that labels should be easy to read and encompass mercury content, disposal information and the health risks of products, particularly for sensitive populations. Labelling requirements under the proposed regulations will take practicality and ease of reading into account. Environment Canada will, to the extent possible, work with stakeholders and relevant government departments such as Natural Resources Canada where product size and other labelling requirements are an issue.
It was requested that pre-advertising of labelling occur before implementation. While there will be no specific pre-advertising period for labelling requirements, stakeholders will be able to view and comment on proposed requirements when the regulations are published in Canada Gazette, Part 1, later this year. It is anticipated that the final regulations will be published in 2010, two years prior to coming into force.
Concerns were raised that the need for packaging materials would increase. It is recognized that fluorescent bulbs must be packaged protectively in order to prevent bulb breakage. It is not expected that additional packaging materials will be required.
Stakeholders suggested that labelling could advertise whether a product is below the allowed threshold (for example, if the limit is 5 mg, a product with 0 mg could be labelled < 5 mg). Specific labelling requirements will be considered during the regulatory development process.
Stakeholders suggested additional mechanisms that could be used in conjunction with labelling (for example, website, 1-800 number, education material). Specific labelling requirements will be considered during the regulatory development process.


Public education
Comment summary Response
It was suggested that education programs should be developed for the public, schools, and occupational health and safety programs. These education programs should encompass health and environmental impacts of mercury, risks of various products during use and breakage, replacement with mercury-free alternatives, proper disposal, and spill guidance.

Extensive information on the risks of mercury, mercury containing products and alternatives , as well as spill guidance, can be found on the "Mercury and the Environment" web section.

Additional health information can be found on the Mercury and Human Health web section and Mercury, Your Health and the Environment : A resource tool.

Further information on compact fluorescent bulbs can be found online.

Environment Canada recognizes that public education is an important component of reducing the risks of mercury and will continue to work with stakeholders and other government departments and jurisdictions to ensure that Canadians have appropriate information.

The point was raised that consumers must be provided with clear information on disposal, health and safety risks, and clean-up guidance for broken bulbs. Environment Canada will work with various partners to ensure that Canadians have access to the appropriate information. Information provision mechanisms, such as labelling, will be considered during the regulatory development process and information will be made available on the "Mercury and the Environment" web section.

It was felt that promotion and education should be carried out to ensure that the public and industrial, commercial and institutional sectors are aware of any collection programs for lamps and legacy products. Environment Canada recognizes that public education is a crucial element in waste collection programs. Public education mechanisms will be evaluated during the development of appropriate end-of-life strategies for mercury-containing products to ensure that disposal information is readily available, for example through labelling and on the "Mercury and the Environment" web section.


International dimensions
Comment summary Response
Stakeholders felt that Canada should support a binding international treaty on mercury and should continue with regulatory and research activities to provide international leadership.

Canada continues to play a leadership role in the development and implementation of international mercury management initiatives including the Heavy Metals Protocol (under the United Nations Economic Commission for Europe, Convention on Long-range Transboundary Air Pollution), the Arctic Council, the Great Lakes Binational Toxics Strategy, the North American Regional Action Plan on Mercury and various national and bilateral monitoring programs.

Canada is also working with the global community under the United Nations Environment Programme, Global Mercury Programme to assess options for mercury, which could include enhanced voluntary measures or a legally binding agreement.

Stakeholders also felt that Canada should track trade in mercury and mercury-containing products. The import and export of mercury and mercury-containing products is largely tracked through the Canada Border Services Agency. The proposed regulations will require additional reporting on any exempt products.
It was suggested that Canadian regulations should be consistent with international initiatives to facilitate compliance and enforcement. Environment Canada reviewed existing international initiatives in the development of the proposed approach for mercury containing products, including notification requirements, product bans, disposal controls, export controls and long-term retirement strategies. Environment Canada will consider the lowest mercury content limits set in other jurisdictions when determining the best content limits for lamps in Canada.
Stakeholders recommended that Canada should implement a trade ban on mercury and mercury containing products. Canada will continue to strive for consistency with international initiatives including those for products, trade and environmentally sound management. At this time, Environment Canada is moving ahead with prohibiting the import and manufacture of all mercury-containing products through the proposed regulations, except lamps and amalgam.
The issue was raised that there may be requirements relating to the World Trade Organization to consider. Relevant commitments under various international initiatives will be considered during the regulatory development process.


Mercury strategy
Comment summary Response

A comprehensive and integrated national mercury strategy should be developed, and it should address

  • a product prohibition
  • cooperation of relevant federal departments
  • partnerships with other orders of government
  • complete import and export ban of mercury
  • instruments for all sources of mercury releases in Canada
  • management of disposal and retirement of legacy mercury from products
Over the past few decades, the Government of Canada has, with the involvement and cooperation of federal and provincial/territorial governments, taken a wide range of regulatory and non-regulatory actions to address domestic mercury emissions.
Environment Canada is currently reviewing emission and use data from all sources of mercury to assess options for managing domestic mercury emissions. The results of this review may form the basis of a broader strategy for managing mercury in Canada.

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