Canada Catching Up on Regulation of PFAS Substances
Per- and polyfluoroalkyl substances (“PFAS“), a group of several thousand man-made chemicals that include perfluorooctanoic (“PFOS“), perfluorooctanoic acid (“PFOA“), perfluoroalkyl carboxylic acid (“PFCA“) and perfluorobutane sulfonic acid (“PFBS“), are receiving increased attention globally for their negative effects on human and environmental health. Developed for and used in a variety of household, commercial and industrial products for their stain resistant and water repellant qualities, PFAS are known as “forever chemicals” given the slow rate at which they break down in the environment. PFAS have been found in concerning levels in the blood of humans and animals as well in the natural environment throughout the world, including drinking water.
Common uses for PFAS substances include food packaging and takeout containers, non-stick pans, stain resistant furniture and rugs, personal care products and water-repellent outdoor gear. While not every product in these categories contains PFAS substances, Canadians have been directly exposed to them for decades without much awareness of their potential adverse effect on human health.
As PFAS makes headlines, Canadians are becoming more interested and concerned about their long term effects and, as a result, regulators in Canada are paying attention. This bulletin provides an overview of PFAS regulation within Canada today and shows where it lags behind the United States and Europe.
PFAS Regulation in Canada
The regulation of PFAS in Canada is in its infancy and exists currently only at the federal level and in a limited way in British Columbia and Ontario. In the remaining provinces and territories, PFAS substances remain unregulated.
In 2008, Canada enacted regulations under the Canadian Environmental Protection Act, 1999 (“CEPA”) restricting the use, sale and import of PFOS or a product containing PFOS unless the substance was incidentally present or fell into one of the categories of allowable uses (the “2008 PFOS Regulation”). This was the first regulation of any PFAS substance in Canada.
CEPA requires Health Canada and Environment Canada to prepare a Virtual Elimination List setting out the allowable quantity and concentration of a toxic substance that may be released into the environment, taking into account environmental or health risks and any other social, economic or technical matters. In 2009, PFOS was added to the Virtual Elimination List, which signifies the federal government’s intention to virtually eliminate the substance because it poses a significant risk to the health and environment of Canadians.
The 2008 PFOS Regulation was repealed in 2016 and replaced with amendments to the Prohibition of Certain Toxic Substances Regulations, 2012 (the “2016 Toxic Substances Regulation”) which contains tighter restrictions than its predecessor on PFOS and also regulates other PFAS substances. Generally, the 2016 Toxic Substances Regulation prohibits PFAS substances from being manufactured, used, sold, offered for sale or imported into Canada. There are exceptions for certain uses involving fire-fighting foam, photolithography and photographic film as well as where the presence of the substance is incidental.
In 2018, Health Canada introduced drinking water guidelines for various PFAS substances.
On April 4, 2021, the federal government issued a Notice of intent to address the broad class of per- and polyfluoroalkyl substances, which efforts will involve research and monitoring of PFAS substances, the collection and examination of information on PFAS substances, and a review of policy developments in other jurisdictions. The government has indicated that it will publish a “state of PFAS report” within two years. This is indicative of further regulation to come at the federal level.
Canada has recently released a proposed new Prohibition of Certain Toxic Substances Regulation, 2022 which would replace the 2016 Toxic Substances Regulation currently in effect and eliminate the various exemptions allowing the use, sale, or import of PFAS substances in Canada under certain circumstances. The proposed enactment of these regulations is consistent with the underlying purpose of the Virtual Elimination List and the April 4, 2021 federal notice. The comment period for these proposed regulations is open until July 28, 2022.
British Columbia leads the provinces and territories in PFAS substance regulation by including PFOS and PFOA as a regulated substance in its drinking water standards. British Columbia also has had in place standards since 2019 for PFOS, PFOA and PFBS in its Contaminated Sites Regulation in the context of management and remediation of contaminated land.
Looking east, Ontario has only recently released interim advice on PFAS in drinking water in 2021. The province has since then been working with the federal government to establish new approaches for regulating drinking water safety in light of the federal class-based approach to PFAS regulation.
PFAS Regulation in the United States and Europe
In 2021, the U.S. Environmental Protection Agency (“EPA”) announced its PFAS Strategic Roadmap which sets out the Agency’s near-term agenda for addressing the problem of PFAS by using the “full range” of statutory authorities at its disposal.
The EPA has since taken numerous steps to address the persistence of PFAS in consumer products and drinking water. One such step includes proposing to designate PFAS substances as hazardous under the Comprehensive Environmental Response, Compensation and Liability Act. Also in 2021, bill S.3169 was introduced to Congress, which would amend the Federal Food, Drug, and Cosmetic Act to prohibit the use of food packaging containing added PFAS (a common source of PFAS in consumer goods). The EPA has also released drinking water health advisories, new testing strategies, contaminated site standards and strategic plans and other measures to address and respond to PFAS in the environment and their potential impact on human health.
Europe has paid PFAS an even higher degree of attention. The use of PFOS has been restricted under the European Union’s Persistent Organic Pollutants Regulation for over a decade and PFOA has been banned since 2020. Under the European Union’s Regulation concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), several PFAS substances have been designated as “substances of very high concern” which are those considered the most dangerous chemicals. In addition, several European countries have been advocating recently for further restrictions and/or bans on other PFAS substances.
Companies operating in Canada should expect increasing regulation of PFAS substances to align with existing and developing regulation in the US and Europe. A growing level of consumer awareness and litigation in the US arising from the presence of these substances, in particular in food packaging, has brought the issue to the forefront in recent years.
In anticipation of even higher levels of concern and more regulation, companies would do well to carry out a comprehensive review of their inputs, products, facilities and operations involving the use and presence of these substances and begin the lengthy process of investigation, assessment, risk management and phasing out (if not already underway). It is likely that companies will eventually be required to do so, and this will help them meet new regulatory standards for potential disclosure, management, notification and remediation of these substances.