Overview
The winter holiday season entails shorter days, festive dinners, and a generalized sense of dread about post-dinner cleanup. The latter used to often be resolved through disposable cutlery that disappears effortlessly from the dinner table but lingers in landfills — this became harder when the Government of Canada introduced the Single-use Plastics Prohibition Regulations last year. Having already banned the manufacture or import of single-use plastic cutlery and other products since December 2022, the regulations are scheduled to now also ban the sale of such products as of December 20, 2023.
The Federal Court of Canada just stuck a spork in that plan, declaring the ban to be unconstitutional in Responsible Plastic Use Coalition et al. v. Minister of Environment and Climate Change et al. Or did it?
Schrödinger’s Act — Does the Ban Exist or Not?
The court challenge to the single-use plastics ban arose as a challenge to a federal Order in Council adding “Plastic Manufactured Items” to the List of Toxic Substances, which is Schedule 1 to the Canadian Environmental Protection Act, 1999. This was a precondition to allow the government to regulate such items by regulation.
The Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999 was registered on April 23, 2021 and published in the May 12, 2021 issue of the Canada Gazette. The Single-use Plastics Prohibition Regulations were registered on June 20, 2022, approximately one year later, enabled by the Order in Council.
Another year later, on June 13, 2023, the government passed the Strengthening Environmental Protection for a Healthier Canada Act. This statute replaced Schedule 1 in its entirety, so that currently all substances on the List of Toxic Substances were added by legislation.
Although the Federal Court of Canada declared the original Order in Council to be unconstitutional, it did not rule on the constitutional validity of the subsequent statute. In large part, this was because the statute received Royal Assent (i.e., passed into law) only after the court challenge was heard. As such, the validity of the single-use plastics ban is currently in limbo — set out in a regulation that was passed based on an order ruled to be unconstitutional, but not technically declared invalid. Unfortunately, the Federal Court has created Schrödinger’s Act, creating uncertainty rather than clarity.
This article provides an overview of the single-use plastics ban and the recent Federal Court of Canada decision and sets out what the court decision may mean for manufacturers, importers, and retailers of plastics that fall within the scope of the regulation.
What is the Single-Use Plastics Ban About?
The Single-use Plastics Prohibition Regulations are federal regulations made under the Canadian Environmental Protection Act, 1999 that, in several phases, first banned the manufacture or import of several single-use plastic products and, as of December of this year, will also ban the sale of any such products remaining in Canada. The scope of the regulation includes single-use plastic straws, single-use plastic cutlery, single-use plastic foodservice ware, single-use plastic stir sticks, and single-use plastic checkout bags. While flexible plastic straws could continue to be sold for medical purposes, there was no use-based exception for single-use plastic cutlery.
For single-use plastic cutlery or plastic straws, the ban applies if the cutlery:
- is made of polystyrene or polyethylene; or
- changes its physical properties after being run through an electrically operated household dishwasher 100 times.
This means cutlery made from polypropylene (PP) or acrylonitrile butadiene styrene (ABS) may still be sold in Canada, at least if it passes the prescribed durability test. Reusable cutlery made from PP or ABS has long been popular as children’s cutlery or in picnic or camping kits. However, some manufacturers have begun to offer disposable cutlery made from PP in Canada, specifically specifying that it passes the prescribed dishwasher test.
Because the import or manufacture of single-use plastic cutlery has been banned since December 2022, big box stores with a regular churn of inventory have already stopped offering such products. Polypropylene cutlery remains rare, as it is difficult to offer it at a competitive price point. The most popular alternatives currently on the market are either starch-based or made from thin slices of birch wood that, in the case of forks, spoons or sporks, is being pressed into the desired shape. Disposable plastic straws have largely been replaced with paper straws at this point.
Single-use plastic foodservice ware is banned if it meets all of the following conditions:
- It is formed in the shape of a clamshell container, lidded container, box, cup, plate, or bowl;
- It is designed for serving or transporting a food or beverage that is ready to be consumed; and
- It contains expanded or extruded polystyrene foam, PVC, or any plastic containing a black pigment produced through incomplete combustion, or an oxo-degradable plastic.
Single-use plastic stir sticks are banned regardless of how they are made. In addition, the regulation also bans single-use plastic checkout bags.
What Exactly Did the Federal Court Declare Unconstitutional?
The Federal Court challenge arose as an application for judicial review by an industry association called the Responsible Plastics Use Coalition. Judicial review is a remedy available when a party alleges that the government overstepped its jurisdictional bounds.
To be able to regulate single-use plastics, the Government of Canada first had to add “Plastic Manufactured Items” to the List of Toxic Substances in Schedule 1 to the Canadian Environmental Protection Act, 1999. It did so by way of an Order in Council, meaning an executive instrument rather than legislation. Once Plastic Manufactured Items had been added to the list, the government could pass the existing regulations. As explained above, the government subsequently re-enacted the entire list of toxic substances by legislation, including the listing for Plastic Manufactured Items.
The Responsible Plastics Use Coalition challenged the government’s approach on two grounds:
- The Order in Council adding Plastic Manufactured Items to the list of toxic substances was overly broad, as there is no evidence that all such items are toxic; and
- The Order falls outside the federal government’s criminal law power.
Unreasonable Breadth of the Order
The court found that to add a substance to the list, the government must first determine that a substance is toxic. Only once that determination has been made can the substance be added by Order in Council. The Coalition argued that “Plastic Manufactured Items” are not a “substance” within the meaning of the legislation, but rather a broad category containing thousands of disparate substances. The court did not accept that the breadth of the category of “Plastic Manufactured Items” was enough to make the order unreasonable. However, the court found that there was no adequate determination that such items are actually toxic.
Canada applies the so-called precautionary principle in environmental law, which states that a lack of complete scientific certainty should not be used as a basis for avoiding or postponing measures to protect the environment. The court explicitly addressed the precautionary principle but found that even with that principle in mind, the order was too broad in scope. It criticized the federal government’s statement that “all plastic manufactured items have the potential to become plastic pollution”, calling that statement a peremptory conclusion of a type that “will rarely assist a reviewing court”. The court also found that the initial review decision of the Board of Review was unreasonable since that Board did not address the challenge to the breadth of the Order in Council.
Because the Order in Council had been replaced by legislation, whether or not the Order in Council was unreasonable was technically a moot issue. It is unusual for courts to comment on issues that are moot. Nonetheless, the Federal Court specifically agreed to rule on the issue anyway, despite objections from the federal government which responded to the challenge. This suggests that the court was somewhat concerned about the government’s overreach.
Use of the Criminal Law Power
Canada’s constitution assigns specific heads of power to the federal government and to provincial governments. To determine whether a government acted within its proper sphere of jurisdiction, courts apply a “pith and substance” test to look at the intent of legislation and the way it operates. The Federal Court determined that the pith and substance of the legislation was “to list Plastic Manufactured Items on the List of Toxic Substances so that [they] could be regulated to manage the potential harm associated with their becoming plastic pollution”. The court found that to employ the criminal law power, what is being restricted has to actually be dangerous. Otherwise, the restriction amounts to nothing more than economic regulation. The court ultimately found that this test is not met for Plastic Manufactured Items.
The Court’s Remedy — A Pyrrhic Victory?
The court then turned its mind to the appropriate remedy, in particular whether it had the power to delete Plastic Manufactured Items from the List of Toxic Substances. It concluded that it had the power to quash the Order in Council retroactive to April 23, 2021, but that it did not have jurisdiction to rule on the constitutional validity of Bill S-5, which subsequently re-enacted the entire List of Toxic Substances, as that issue had not been argued and did not form part of the court challenge. The court also found that it did not have the authority to delete Plastic Manufactured Items from the List of Toxic Substances, ruling that:
"While a declaration of invalidity could lead the [Governor in Council] to order that [Plastic Manufactured Items] be deleted from the current Schedule 1, the authority to take that step is within the discretion of the [Governor in Council]."
As a result, the single-use plastics ban currently still exists, despite a fairly decisive court win. In the end, the decision may amount to nothing more than a Pyrrhic victory.
What Does the Decision Mean for Manufacturers, Importers and Retailers?
For manufacturers or importers that may face charges related to the ban on manufacturing or importing that has been in effect since late 2022, the decision is likely good news. With the uncertainty created by the Federal Court of Canada decision, their bargaining power has just increased substantially, lest the Government of Canada face a challenge to the regulation itself.
For anyone who would like to continue to manufacture, import, or sell single-use plastics, the decision has unfortunately created a substantial amount of uncertainty that will make it difficult to plan capital investments or enter into contracts with suppliers, wholesalers or retailers. It is up to the federal government to signal its intention with respect to the ban. If the government’s policy objective is to continue with the ban as originally enacted, the most effective way for it to do so would be to re-enact a new regulation under the authority of the current version of the statute as amended in 2023. In doing so, the ban would no longer be predicated on the unconstitutional Order in Council, and the wording of the regulation could remain largely unchanged. The beneficiaries of this approach again would be any companies who have defied the existing ban to date, while there would be a minimal impact on everyone else.
Until the matter is resolved, it would be prudent for parties to continue to assume that the existing ban remains intact. With the court decision having received significant media attention, it is likely that the government will provide clarity sooner rather than later.