Federal court quashes cabinet order underlying single-use plastics ban

In a lawsuit brought against the federal government by the Responsible Plastic Use Coalition and several chemical companies that manufacture plastics, the Federal Court has quashed a cabinet order that listed plastic manufactured items as toxic under the Canadian Environmental Protection Act (CEPA).

The court says, in a decision released last week, that it was not reasonable to say that all plastic manufactured items are harmful and deem them as toxic because the category is too broad. The government is only able to regulate substances for environmental protection if they are listed as toxic under the Act. Moreover, the Responsible Use Plastic Coalition, including Dow Chemical, Imperial Oil, and Nova Chemicals, contended that federal jurisdiction over toxic substances is narrow and that waste management is up to the provinces and territories.

This decision has implications for the federal government’s ban of six single-use plastic items including straws, cutlery, stir sticks, grocery bags, ring carriers, and takeout containers. The regulations banning these items, the Single-Use Plastics Prohibition Regulations, are already being phased in with a ban on the manufacture and import of six different categories currently in place, and a full ban on their sale and export planned by the end of 2025. It is unclear at this time what this ruling means for the single-use plastics ban as well as other regulations in development such as the plastics registry and the recycled content and labelling rules for plastics.

The Minister of Environment and Climate Change Stephen Guilbeault and Minister of Justice and Attorney General of Canada, Arif Virani, issued a notice yesterday to confirm the government will be seeking an appeal. Moreover, RCC sources have advised that the government is also seeking an injunction in the next 30 days, which if granted by the court, effectively pauses any enforcement of the ruling.

As such, in the interim and until we have more information on the status of the appeal request/injunction or next steps from the government, we strongly recommend that RCC members keep the course of preparing for enforcement of the single use plastics regulation.

While there are questions surrounding the federal ban, please note that bans in PEI, B.C., Yukon, and numerous municipalities across Canada are not impacted by this decision. Further information can be found in our member-only single-use tracker.