Now What? Canada’s SUP Bans Struck Down

Appeal of government’s single-use plastics bans leaves many questions.

The Federal Court recently overturned Canada’s ban on single-use plastics (SUPs), bringing into question the previous legislation and what that means for you, and your customers. To find out, we asked Colin Isaacs, a Canadian expert in environmental sustainability. Isaacs is a former Director of The Recycling Council of Ontario, former Executive Director for the Pollution Probe Foundation, and currently Sr. Sustainable Development Analyst with CIAL Group.

During this exclusive Q&A session, we discussed the challenges and next generation innovations driving the sustainability movement forward, along with Colin’s personal insights:

R3: Colin, what exactly has transpired over the last few weeks as it relates to the SUP bans?

CI: Representatives of the plastics industry launched a court case against the federal government in 2022 seeking to overturn the regulation that enabled the ban on single use plastics by Environment and Climate Change Canada, the federal environment ministry. This enabling regulation defined all manufactured plastics as toxic, as defined by the Canadian Environmental Protection Act. In a 78-page decision released on November 16, 2023 the court essentially agreed with the industry and declared that defining all manufactured plastic goods as toxic was both unreasonable and unconstitutional.

How does this appeal and court action effect the current process of Phasing out SUP’s?

CI: The Federal Government has announced that it will appeal the current decision. The appeal has not yet been finalized so we have no idea of the grounds for appeal, but even if we did know it, this is a fairly new area of law, and it is impossible to predict the court’s decision on the appeal.

Does the appeal impact the new regulations taking effect Dec. 20, 2023?

CI: This is a legal matter much more than it is an environmental matter but legal opinions that I have seen are split on whether the court decision has the effect of overturning the SUP ban. The majority of those that I have seen have suggested that companies would be wise to proceed as if the ban does come into force on December 20th, 2023.

Even if the ban is not in effect because of the Federal Court decision, if the government wins the appeal the ban could come into effect almost immediately, though the government may allow a grace period for enforcement. Companies are advised to consult their legal counsel for more specific information related to their own SUP plastic use or sale.

What should the industry and R3 customers expect as this appeal process proceeds?

CI: The appeal process may take at least a year, though more or less time is also a possibility. We should not expect to hear more until the appeals court releases its decision.

What changes do you see coming to plastics overall, considering this new appeal?

CI: The government has stated clearly that it is determined to enact a ban on plastic items that it considers non-essential, especially if they are single-use items. This is part of an overall plastics strategy to reduce environmental contamination by plastics. The current Federal Court decision is likely to delay announcement of a further set of single use plastic bans but is unlikely to change the overall direction of the federal government toward plastics because they are firmly committed to their strategy. Also, there are alternative ways for them to proceed if the existing regulations are ultimately tossed out by the courts.

How can/should business owners continue to prepare for the new legislation – or adjust their approach based on this appeal?

CI: If you are affected by the current SUP ban or have expectations that products you use or sell could be affected by future bans, I recommend keeping in contact with this area of federal policy through your account managers at R3, your industry association, and/or through your legal counsel. Other aspects of plastics policy such as new labelling regulations and Extended Producer Responsibility programs are not affected by the Federal Court decision, and we expect that the government will be issuing new draft rules before the end of this year.

The Bottom Line

We hope you’ve found Colin’s insights helpful. Clearly, SUPs are still a key issue when it comes to sustainability, and distributors need to ensure their product assortments reflect that. To that end, R3 continues to source more sustainable packaging in a more diverse range of products, and we continue to strive to increase their level of sustainability over time. We are also addressing per- and polyfluoroalkyl substances (PFAS). These are currently under review, with growing concerns surrounding their environmental impact and overall safety. We currently offer a variety of products that do not have PFAS added during the manufacturing process to enable you to meet your customers’ specific requirements.

To explore the most current and up-to-date Sustainable Packaging Selection Guide, visit R3redistribution.ca.

For further guidance on how to navigate transitioning from SUP’s to more sustainable disposable packaging alternatives,  contact your local R3 representative.