Importers and manufacturers in Canada should be aware that the mandatory reporting deadline under the Second Phase of the Canadian Chemicals Management Plan (the “CMP”) for phthalates substances on the Domestic Substances List (the “DSL”) is November 13, 2013.

What is the Second Phase of the CMP?

Environment Canada launched its Second Phase of the CMP to further assess DSL chemical substances which have been commonly used in commerce in Canada with minimal regulatory oversight or investigation into their potential toxicity. The Second Phase identified 9 substance categories, including phthalates and selenium-containing substances, as potentially harmful to either the environment or the health and safety of Canadians and as priorities for further assessment.

Was This not Covered in the Recent Second Phase Inventory Update?

Importers and manufacturers will be familiar with the CMP reporting obligations following the Second Phase Inventory Update, which mandated the reporting on volumes and usage for a broad range of 2,700 chemicals found on the DSL.

The Inventory Update deadline passed in September, but unfortunately did not cover either the 28 target phthalates found within the CMP’s Phthalates Substance Grouping or the 23 targeted as part of the Selenium-containing Substance Grouping. The targeted reporting obligations for both Substance Groupings reflect the priorities of Environment Canada under its mandate to regulate toxic substances under Part V of the Canadian Environmental Protection Act (“CEPA”).

Who Must Report and What?

Both importers and manufacturers are obligated to report (upon meeting minimum threshold levels) for  any of the target phthalates DSL substances alone, where found in mixtures or in a “product” or “manufactured items”.

The target mixtures, products and manufactured items containing the DSL phthalates include:

  • children’s goods;
  • food products;pharmaceuticals;
  • items with mucosa contact, including mouthpieces, medical devices and personal hygiene and care pro
  • ducts such as tampons and intimate accessories;
  • items in direct contact with food or beverages;
  • cosmetics and personal care products, including creams, lotions, perfumes, nail polish, and shampoo;
  • bulk packaging materials in contact with a cosmetic, or a personal care product;
  • candles, air fresheners, and scented items;
  • dermal contact items such as dryer sheets and cleaning wipes;
  • clothing or footwear;
  • home furniture, furnishings and flooring;
  • electronic and electrical appliances;
  • adhesives, sealants, plastics and rubber additives, plasticizers and coatings;
  • cleaning liquids, gels or sprays, detergents and surfactants, paints and coatings;
  • paper, fabric and textile rolls; and
  • textile and printing inks, fragrances, gelling and solvent mixtures.

“Blind Submissions” Permissible

Environment Canada anticipates that importers may not be able to easily determine if the threshold reporting obligations have been met for target DSL substances within their imported mixtures, products or manufactured items.  In these circumstances, the importers are obliged to encourage their vendors to make separate “blind submissions”, which may protect their proprietary information, while the importers should make separate submissions reflecting the available DSL substance information and informing Environment Canada of the circumstances giving rise to the imperfect information disclosure.

Extensions May Be Granted by Environment Canada

Like the Inventory Update, Environment Canada will receive written requests for extensions for the phthalates reporting deadline. If an importer or manufacturer will not be able to submit the mandatory phthalates survey by November 13, 2013, it must seek a filing extension from the Substances Management Coordinator of Environment Canada, prior to the deadline. A failure to meet the filing deadline for the report is deemed to be a breach of CEPA itself, giving rise to potential sanctions under that Act.