In what has been trumpeted as the first “Circular Economy in the Americas”, the Province of Ontario has initiated the wind-up of the first of its soon-to-be defunct designated Industry Funding Organizations (IFOs) – product stewardship agents.

Tires are the first materials to be transitioned to IPR if you haven’t been following this closely.

Do They Have My Data?

The shift fundamentally takes the coordination of statutory waste diversion obligations out of the hands of IFOs and the government waste diversion regulator and imposes Individual Producer Responsibility upon those who are deemed “brand holders” including:

  • first importers (into Ontario);
  • wholesalers;
  • retailers;
  • on-line sellers;
  • those with rights to market the brand in the Province; and
  • those who otherwise have a “commercial connection” to the product to be recovered.

Many, though not all of these parties, are currently deemed “producers” under existing waste diversion laws in Ontario. Producers were obligated to regularly report confidential product and sales information to the IFOs for the purposes of administration (including fee payment) under the mandated waste diversion programs.

No IFOs- But Where Does My Data Go?

The IFOs have been collecting this confidential data for years, raising real questions as to what will happen once the IFOs are gone

  • Could it be bought?
  • Can it be destroyed upon a participant’s request?
  • Which portions could be viewed as integral to ongoing waste diversion?
  • Is there even a legal right to retain it once the statutory mechanism ceases to exist?

The answers are starting to emerge following the Minister’s direction to the tire IFO (Ontario Tire Stewardship):

  • there will be no sale of data;
  • certain information will be transferred to the new (night watchman) regulator (aptly named the “Authority”) including:
    • lists of producers and their activities under the government regime;
    • the categories and volumes of product supplied into the Ontario marketplace;
    • data and information on the collection of used product, including the identification of all diversion-related service providers;
    • “other data and information requested by the Authority”

What’s Destined For Registry?

The Authority is statutorily-mandated to create registries of participants for each waste stream, but as for the confidential information, the Ministry has only indicated that the outgoing IFO must prepare a:

proposal for identifying confidential or personal data and information and indicating how such data and information will be supplied in confidence when transferring it to the Authority.

As to which information will end up accessible through the registries or otherwise from a freedom of information process remains unclear. If the information is now obsolete given the more to IPR, do the producers even have a legally-recognized right to ensure its protection?

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It’s time of the Ministry to develop clear answers regarding producer information, including a justifiable basis for transferring any confidential business information.