Changes to Canada’s environmental protection act on the horizon

Bill S-5, an amendment to the Canadian Environmental Protection Act, 1999 (CEPA), has been winding its way through the legislature over the past two sessions of the Canadian Parliament. The bill would amend many aspects of CEPA, including important changes to toxic substance regulation and updates to sections of the Food and Drugs Act.

BY WALKER LIVINGSTON, ESQ FEB 15, 2023 8:28 PM EST

Regulatory background

• Canada oversees environmental protection in the country through the Canadian Environmental Protection Act, 1999 (CEPA). CEPA was first enacted in 1988, but the current version came into effect in 1999 and has received few major amendments since that time. During the intervening two decades, CEPA has been reviewed several times, most recently by the House of Commons Standing Committee on the Environment and Sustainable Development (ENVI) in 2017, which provided the Canadian government with a litany of suggestions to update CEPA in its June 2017 report.
• Canada regulates many of the chemical substances within its borders through its Domestic Substances List (DSL) and Non-Domestic Substances List (NDSL). Chemicals that are used commercially in Canada are placed on the DSL, whereas chemicals not manufactured or imported for commercial use above certain thresholds are placed on the NDSL. The DSL contains more than 28,000 substances and is updated several times per year. Substances on the NDSL require notification before a person can import or manufacture the substances in the country via the New Substance Notification Regulations.
• CEPA includes 12 parts, most notable of which is Part 5, which governs the identification and management of toxic substances. CEPA defines a toxic substance as one that enters or may enter the environment such that it (1) has or may have immediate or long-term harmful effects on the environment or biodiversity; (2) constitutes or may constitute a danger to the environment on which life depends; or (3) constitutes or may constitute a danger to human life or health.
• Canada may designate a substance on the Priority Substances List for review to determine whether the substance is toxic. The country may also use information from other countries’ reviews, industry information, or emerging scientific information to also designate a substance for review. The substance will undergo a screening assessment to determine whether it is within the CEPA definition of toxic. If the assessment determines that the substance is toxic, it will be added to Schedule 1 of CEPA. After it is added, Canada may impose pollution prevention plans (Part 4 of CEPA) or objectives, guidance, and codes of practice (Part 3 of CEPA) to mitigate the risk the substance poses to health or the environment.
• Bill S-5, An Act to amend the Canadian Environmental Protection Act, 1999,to make related amendments to the Food and Drugs Act and to repeal the Perfluorooctane Sulfonate Virtual Elimination Act, was introduced to the Canadian Senate on February 9, 2022. The bill is nearly a carbon copy of Bill C-28, which was introduced in April 2021 but died before passage when parliament was dissolved on August 15, 2021. Bill S-5 focuses on amendments to CEPA, recognizing a Canadian’s right to a healthy environment, and requires that the government of Canada protects that right. The bill was referred to the Standing Senate Committee on Energy, the Environment and Natural Resources (ENEV) in February 2022 and passed the Senate on June 22, 2022. The bill was read into the House of Commons on September 28, 2022, and has been in consideration at ENVI since November 3, 2022. Since that day, there have been more than 45 meetings regarding the bill,covering more than 50 witnesses who have produced 30 briefs.

Bill S-5

• Bill S-5 contains 69 separate clauses, including changes across almost every aspect of CEPA. Of these, the bill covers 11 major areas of CEPA and environmental regulation (and some sections on food laws) in the country.
• The first clauses reiterate that Canadians have a right to a healthy environment and that the Canadian government must protect that right when it administers CEPA. Under Bill S-5, the government would be required to develop a framework to implement that right, reviewing economic and social factors, as well as environmental justice and non-regression (i.e., continuing to improve environmental protection) ideals. The amendments would require that the government consider available information on the cumulative effects of a substance (or environmental factors), as well as take into account vulnerable populations when assessing substance risks.
• Additional clauses of Bill S-5 would require the government to minimize risks to vulnerable populations when administering CEPA. Bill S-5 defines vulnerable populations as “a group of individuals within the Canadian population who, due to greater susceptibility or greater exposure, may be at an increased risk of experiencing adverse health effects from exposure to substances.”
• The bill would also require the government to assess “real life exposures” for populations, and rather than focusing on a substance-by-substance risk approach, review available information on multiple chemical exposure that may have cumulative effects, rather than simply focusing on the risks of a single substance in isolation.
• Arguably the most important section of the bill focuses on toxic substance regulation under CEPA. Bill S-5 would keep Schedule 1 intact but would split substances listed there into two parts. Part 1 focuses on the highest risk substances (mostly those that are persistent, bioaccumulative, or toxic (PBT)) and prioritizes risk management for those substances, and Part 2 covers all other toxic substances in Schedule 1. Substances in Part 1 are targeted for use restrictions, including prohibiting all new uses unless a person can show that there are no safer alternatives, and the new activity can be undertaken safely.
• Following the changes to Schedule 1, Bill S-5 also recognizes the government’s interest in reducing the number of substances that pose a risk to health or the environment and substituting them for ones that don’t pose a risk or not as much of a risk. This includes a plan for a chemicals watchlist, which would cover substances that Canada believes would become toxic under the CEPA definition if releases or exposure to the substances increased. This watchlist is intended to help manufacturers and suppliers determine which substances are safer, and which alternatives to potentially avoid in the future.
• Bill S-5 also includes a plan for developing new chemical management priorities. As described above, CEPA came into effect in 1999. In the act, the government prioritized about 23,000 substances for categorization within CEPA, and then determined which substances were “priority substances” (in total, about 4,300) for risk assessments. This work has almost been completed, and the government has noted its need for a new process for prioritizing and assessing substances. The government plans for this to include additional input from Canadian citizens as well as new monitoring and research methods for this new process.
• The two final sections of the bill concerning chemicals relate to increased transparency in decision making and reducing the government’s reliance on animal testing. The bill would add a new avenue for chemical assessment through something like a citizen petition, under which the government would be required to consider and respond to each request. The bill also would reduce the use of animal testing for assessing substances and promote the development and use of alternative methods and strategies (see an AgencyIQ analysis on reducing animal testing in Canada here).
• Bill S-5 also includes several sections focusing on changes to the Food and Drugs Act (FDA). The main changes would create environmental notification, risk assessment, and risk management frameworks for drugs regulated under the FDA. CEPA currently administers the environmental risks of drugs, and these changes would move that responsibility under the FDA, bringing both risk management and environmental risk assessment under one regulatory roof.
• Finally, the bill focuses on new labeling regulations for consumer products and for ingredients in business supply chains, as well as updating the regulatory framework for biotechnology products in the country. The government has focused on labeling regulations over the past several years, including launching a nationwide consultation in March 2022. In addition, the biotechnology regulations are planned to be updated to better respond to advances in the field, as the government sees that the current regulation scheme is lagging behind the current pace of industry.

Next steps

• As explained in the previous section, Bill S-5 focuses on an extremely wide set of chemical regulations, and its effects may be felt in nearly every industry that deals with chemicals. Though the bill is still at the committee stage, it will likely be returned to the House of Commons for a vote within several months. If it passes, Prime Minister Justin Trudeau will almost certainly sign the bill into law.
• The bill will likely pass the House of Commons when it is returned. Canada’s Liberal Party currently controls the government, and the party’s official position includes many of the areas that Bill S-5 seeks to change. In Prime Minister Justin Trudeau’s letter to new Minister of Health Dr. Jean-Yves Duclos, he asks that the minister introduce many measures to “protect Canadians from harmful chemicals, strengthen the Canadian Environmental Protection Act, introduce mandatory labelling of chemicals in consumer products,” in addition to several other requests from the Prime Minister.

To contact the author of this analysis, please email Walker Livingston.
To contact the editor of this analysis, please email Scott Stephens.

Key Documents and Dates

• Bill S-5
• February 2023 press release on Bill S-5
• ENVI site for Bill S-5