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ECCC Launches Consultation on Requirement for Major Grocers to Develop Pollution Prevention Plans for Primary Packaging

Until August 30th, 2023, Environment and Climate Change Canada (“ECCC”) is welcoming comments from players in the grocery industry to tailor new pollution prevention planning requirements. The pollution prevention plans (“P2 Plans”) are one component of the broader regulatory framework published by ECCC on April 18, 2023, addressing recycled content and labelling rules for plastics which will impact large scale grocers (the “Pollution Prevention Framework”).

Pollution Prevention Notices

The proposed pollution prevention system would give ECCC the ability to issue a pollution prevention notice (a “Notice”) to qualifying companies. A Notice will include details with respect to:

  1. The targeted substance – drawn from the Canadian Environmental Protection Act (“CEPA”) list of Schedule I substances, including single use plastics and primary food plastic packaging;
  2. The targeted activities – for instance, manufacturing, retail, processing, etc.;
  3. Factors to consider – identifying issues which must be addressed in the P2 Plan. These may include specific reduction targets, the substitution of targeted materials, product redesign or reformulation, or changes to operating practices;
  4. Mandatory timelines – identifying timelines that industry members will be required to adhere to in the submission of declarations and reports to ECCC; and
  5. Required information – the Notice will prescribe those details the respondent is required to include in any mandatory declarations and reports to ECCC.

Notices targeting plastic pollution prevention are expected to address the following activities:

  1. Distribution and sale of foods in primary plastic packaging;
  2. Use of primary plastic packaging in store and for affiliated delivery services; and
  3. Direct-to-consumer and business-to-business operations.

P2 Plan Requirements

The recipient of a Notice will be required to develop a P2 Plan for identified Schedule I substances under CEPA, which has included single use plastics since June 20, 2022. P2 Plans will be designed internally at the recipient’s corporate level and should feature various actions to reduce plastic waste where possible. It is important to note that only those companies that have received a Notice are required to submit a P2 Plan.

In the event the recipient of a Notice fails to meet the targets identified in its P2 Plan, this will not automatically constitute a compliance breach. Instead, that entity will be required to provide a report to ECCC addressing the deficiencies, and explaining why despite the elements set out in the P2 Plan they were ultimately unsuccessful in achieving their targets.

As currently described by ECCC, Notices are designed to serve a supporting function for the broader Pollution Prevention Framework. ECCC intends to prioritize flexibility in the preparation and implementation of P2 Plans, and accordingly we expect subject companies to have the ability to tailor their response to the targets highlighted in a Notice.

Affected Industry Members

The broader Framework and the P2 Plan requirements in particular will impact large grocery retail companies earning at least $4.0 Bn in combined online and in-store sales annually. The proposed regulations are not intended to capture small businesses or other grocery retailers whose earnings fall below that threshold. However, if a company is the recipient of a Notice in a given year, that company will remain within the parameters of the requirements even if it dips below the $4.0 Bn threshold in subsequent years.

The first stage of consultations will continue until August 30th, 2023, though the government has indicated they will hear consultations until they publish a draft instrument in the Fall. Following the draft publication, a formal seventy day consultation period will take place before the final notice is set to be published in Autumn 2024. Upon publication of the final notice, affected companies will have one year to prepare and implement their P2 plans.

Major Canadian grocers should take advantage of the opportunity to provide their insight to ECCC prior to the draft notice’s scheduled publication in Autumn 2023. Furthermore, companies that meet the $4 Bn threshold should review their operations now in anticipation of the new planning and reporting requirements.

Our Retail and Consumer Markets team will continue to monitor these developments and provide updated details whenever possible. If you are seeking more information, contact our Retail and Consumer Markets Industry Group and we will be happy to provide additional guidance.



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