Canada is a few steps behind the United States in regulating per- and polyfluoroalkyl substances ("PFAS"). However, we are catching up. On July 27, 2024, the Canadian Government published a notice regarding new reporting obligations for manufacturers, importers and users of certain types of PFAS.1
Certain Canadian manufacturers, importers and users of the listed types of PFAS are required to submit a report by January 29, 2025, for activities conducted in the 2023 calendar year ("Required Reporters"). Failure to submit a report could result in significant penalties under the Canadian Environmental Protection Act, 1999 ("CEPA").
The Canadian PFAS reporting obligations are different than the American Environmental Protection Agency (EPA) reporting requirements under the Toxic Substances Control Act ("TSCA"). These initial Canadian reporting requirements include a shorter list of substances and only apply to 2023 activities. However, compliance for many companies will still involve significant investigation into complex supply chains.
Purpose
Pursuant to section 71(1)(b) of CEPA, the Minister of the Environment requires the information set out in the notice to assess: (1) whether the listed substances are toxic or are capable of becoming toxic; and (2) whether to control the listed substances and, if yes, how to control them.
Required Reporters
Only Canadian entities (PFAS manufacturers, importers and users) are required to file a report. Foreign suppliers are not subject to the notice, although their Canadian customers and/or importers of record may be subject if they exceed the quantity thresholds. Subject to a few specific exclusions, those who are required to report include any person who:
- Manufactured greater than 1000 g of any substance listed in Schedule 1.
- Imported a total quantity greater than 10 g of a substance listed in Part 1 of Schedule 1.
- Imported more than 100 kg of a substance listed in Part 2 or Part 3 of Schedule 1.
- Imported more than 100 kg of a substance listed in Schedule 1 at a concentration equal to or above 1 part per million ("ppm") in a manufactured item.
- Used more than 10 g of a substance listed in Schedule 1.
Reporting requirements
Required Reporters must report reasonably accessible information. Reasonably accessible information includes information that may be in the possession of employees or other agents of their company, and their supply chain including suppliers and customers.
Along with the notice, the government has also provided a Guidance manual for responding to the: Notice with respect to certain per- and polyfluoroalkyl substances (PFAS) as well as a generic form to send to supplier: Request for information from foreign suppliers.
Reporting has to be done electronically using the Excel Reporting File and submitted through Environment and Climate Change Canada's Single Window online reporting system.
Required Reporters may also request an extension of the January 29, 2025 deadline.
Exemptions
There are exemptions to the reporting requirements, including exemptions for products only in transit through Canada, for personal use and use in a laboratory. Micro businesses (organizations with fewer than five employees and less than $30,000.00 in annual gross revenue) are also exempt.
If there is risk of revealing confidential business information, a Required Reporter may undergo the blind submission process. Confidential business information includes trade secrets, information that if revealed may result in financial loss and information that could reasonably be expected to interfere with contractual negotiations. Any confidential business information should be clearly marked.
Goods and products subject to reporting requirements
In addition to a general, catch-all category of manufactured items, the notice includes a list of specific types of manufactured items that are of particular interest. These manufactured items include:
- Items intended to be used by or for children under the age of 14 years
- Items intended in a manner such that the substance may be inhaled, or come into dermal or oral contact with an individual
- Cookware, or a cooking or serving utensil that is intended to come into direct contact with heated food or beverage
- Food packaging material, reusable food or beverage containers, food processing equipment
- Clothing or footwear, bedding, sleeping bags, or towels
- Furniture, mattresses, cushions or pillows intended to be used by an individual
- Carpet, vinyl or laminate flooring, or foam underlay for flooring, intended to be used by an individual
Meeting your PFAS reporting obligations
Environment Canada is hosting an information session on September 11, 2024, with a second session to be scheduled in November 2024. Stakeholders have an opportunity to submit questions in advance at substances@ec.gc.ca.
Navigating these new reporting requirements can be complex and time-consuming, but timely and accurate compliance is crucial to avoid penalties.
Footnote
1 https://canadagazette.gc.ca/rp-pr/p1/2024/2024-07-27/html/sup-eng.html
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