In another example of collaboration between the United States and Canada on environmental product matters, Environment Canada has recently released a consultation paper in respect of its proposed regulations to ban the use of microbeads in personal care products (tiny pieces of plastic as used in cosmetics, non-prescription drugs and natural health products). Prescription drugs, as defined by under the Food and Drug Regulations, are exempt from the current proposed regulations.

NORTH AMERICAN GRASSROOTS MOVEMENT

The proposed regulations are the culmination of a number of disparate local initiatives to prohibit the dissemination of microbead-containing products into the aquatic ecosystem.  Canadian cities such as Toronto, Montreal and Quebec City all passed motions to supporting personal care microbead bans.  Nine US states, from Maine to California, also imposed microbead bans, which ultimately led to the passage by Congress of the Microbead-Free Waters Act of 2015, prohibiting consumer products containing microbeads.

US GOES BIGGER, FASTER

The Microbead-Free Waters Act of 2015 is more ambitious in scope and timing than Environment Canada’s plan and imposes staged regulatory limits upon the continued manufacture and dissemination of microbeads starting with a July 1st, 2017 manufacturing ban, with a complete sale ban as of July 1st, 2018.

Environment Canada’s proposed regulations lag behind the US regulatory approach, with a first phase precluding further manufacturing or importation of microbead-containing personal care products as of December 31st, 2017, followed by a complete ban of those products one year later.  The same 2-phase approach for non-prescription drugs and natural health products would span December 31st, 2018-2019.  The ban will be orchestrated through placement of microbeads on Environment Canada’s ever growing Toxic Substances List, thereby granting Environment Canada with the full range of regulatory enforcement powers granted under the Canadian Environmental Protection Act.

Equally notable, microbeads of 5 mm in diameter and smaller are restricted in the United States, while Environment Canada’s proposed regulations would only cover 2 mm or smaller microbeads.  It remains to be seen whether industry in Canada will effectively adopt the American standards and timing, perhaps driven by supply chain efficiencies.

INDUSTRY-DRIVEN REGULATION

The national microbead regulatory initiatives in both countries are also credited to the industry itself, which sought to avoid the creeping patchwork of restrictions complicating the sale of microbead-containing products across North America.  Environment Canada specifically recognizes the efforts of the Canadian Cosmetic, Toiletry, and Fragrance Association in voluntarily surveying its members’ use of microbeads in preparation for the proposed regulations.

Further, the need for a “level playing field” is expressly cited in the Consultation Document as an important consideration in moving forward with the proposed two-phased bans of microbead use. These cross-border collaborative efforts on microbeads may herald more coordinated environmental product content regulation to come.