Written By Sarah Gilbert, Julia Schatz, Sharon Singh, Radha Curpen and Samantha Chenatte
The Government of Canada published a "Draft State of Per- and Polyfluoroalkyl Substances (PFAS) Report” (Draft Report) and "Risk Management Scope for Per- and Polyfluoroalkyl Substances (PFAS)" (Risk Management Scope) on May 20, 2023. The Draft Report contains a draft assessment of the potential risks of PFAS, and proposes to conclude that all substances in the class of PFAS have the potential to cause harm to the environment and human health. The Draft Report follows up on the April 2021 announcement that the Government of Canada intended to address PFAS as a class of chemicals under the Canadian Environmental Protection Act, 1999 (CEPA).
The Government of Canada has previously prohibited the manufacture, use, sale and import of three subgroups of PFAS1, including products containing these substances (with limited exemptions), based on prior risk assessment activities. Further restrictions on the availability of exemptions for products containing these three subgroups of PFAS were included in the Government's May 2022 announcement of the proposed Prohibition of Certain Toxic Substances Regulations, 2022, which would repeal and replace the current Prohibition of Certain Toxic Substances Regulations, 2012.
The reasons for now approaching PFAS as a class of substances include the large number of PFAS, the length of time it would take to assess each substance individually, as well as the Government's expectation that concerns relating to well-studied PFAS are more broadly applicable within the class and concerns regarding cumulative exposures to multiple PFAS.
PFAS are a group of human-made substances that are commonly known as "forever chemicals" due to their persistent chemical stability (which results in them breaking down very slowly). According to the Government, there are over 4,700 PFAS, with new PFAS continually being developed.
PFAS have a wide range of uses in everyday consumer products such as food packaging, non-stick cookware, clothing and cosmetics. PFAS are also used in industrial products and specialized applications such as firefighting foams, lubricants and oil/water repellents.
Due to their persistent stability and widespread uses, PFAS have been detected in many areas of the environment across Canada, including PFAS-contaminated sites and municipal solid waste landfills. Multiple PFAS are widely present in humans, and certain well-studied PFAS have been shown to bioaccumulate and are associated with potentially hazardous effects in organisms, including in humans.
The Draft Report proposes that all substances in the class of PFAS meet the criteria in paragraphs 64(a) and 64(c) of CEPA, which are used to determine if a substance is classified as "toxic" under CEPA:
64 … a substance is toxic if it is entering or may enter the environment in a quantity or concentration or under conditions that
(a) have or may have an immediate or long-term harmful effect on the environment or its biological diversity; …
(c) constitute or may constitute a danger in Canada to human life or health.
The Draft Report proposes that the class of PFAS does not meet the criterion in paragraph 64(b) of CEPA, which requires that substances enter the environment in a quantity or concentration or under conditions that "constitute or may constitute a danger to the environment on which life depends".
The proposed conclusion that the class of PFAS is "toxic" under CEPA is in part due to the extreme persistence of PFAS, the ubiquitous presence of PFAS in the environment, the continuous exposure of humans to multiple PFAS, and the potential for these substances to cause adverse effects.
The Draft Report acknowledges that there are uncertainties associated with understanding the characteristics of all substances within the class of PFAS, and that the specific hazards associated with mixtures of PFAS are largely unknown. However, it indicates that there is evidence suggesting that concerns identified for well-studied PFAS are more broadly applicable to other PFAS substances, and that it is reasonable to expect that cumulative effects may also occur from exposure to multiple PFAS. The Draft Report states that a class based approach for PFAS is needed to protect the environment and humans from anticipated adverse effects, which is consistent with the application of precautionary assumptions when addressing information gaps relating to environmental and human health matters.
Proposed Risk Management Scope
On the basis of the findings in the Draft Report, the Government proposes to recommend that the class of PFAS be added to the List of Toxic Substances in Schedule 1 of CEPA. Once added to Schedule 1, the Government would have the authority under CEPA to implement a number of risk management measures.
The Risk Management Scope identifies the proposed risk management objectives and options that are under consideration. The proposed environmental and human health objectives regarding PFAS are to reduce releases of PFAS to the environment, and to reduce exposure of the general population to these substances to levels that are protective of human health. The proposed risk management objective is to achieve the lowest levels of environmental and human exposure over time that are technically and economically feasible.
Preliminary risk management options under consideration by the Government include regulatory and non-regulatory controls to minimize exposure from firefighting foams, gathering information to identify and prioritize options to reduce PFAS exposure from other sources and products, and in some cases, aligning with actions taken in other jurisdictions.
The Draft Report and Risk Management Scope are open for public and stakeholder consultation until July 19, 2023. Following this consultation period, the Government will integrate the feedback it receives into its final report, which will conclude whether PFAS should be categorized as one class and added to the List of Toxic Substances in Schedule 1 of CEPA.
Companies should take steps to prepare for greater scrutiny and regulation of PFAS moving forward.
Bennett Jones has extensive knowledge and experience in environmental law and can help your business address any questions regarding the regulation of PFAS in Canada. If you want to learn more, please contact the authors or a member of our Environmental group, our ESG Strategy and Solutions group, or our Product Regulation group.
1Perfluorooctane sulfonate, its salts and its precursors (PFOS); perfluorooctanoic acid, its salts and its precursors (PFOA); long-chain perfluorocarboxylic acids, their salts and their precursors (LC-PFCAs).