Canada Issues Mandatory Information Request for 850 Chemical Substances

Canada published a notice in the Canada Gazette on June 24, 2023, announcing that it is collecting information on 850 substances for the purpose of prioritization, risk assessment, and risk management. Canada is gathering information from Canadian manufacturers, importers, and users on the commercial status, facility information (for example, releases), and uses of these substances in Canada, pursuant to Section 71 of the Canadian Environmental Protection Act (CEPA). According to the notice, the Minister of the Environment requires the information to assess whether the listed substances are toxic or are capable of becoming toxic, or to assess whether to control, or the manner in which to control, the listed substances. The persons described in the notice must provide the specified information that may be in their possession, or to which they would reasonably be expected to have access. Responses are due January 17, 2024.

Substances

Schedule 1 of the notice lists 850 substances in the following categories:

• Part 1 — Substances reportable at 100 kilogram (kg) threshold for manufacture, import, and use;
   
• Part 2 — Substances reportable at 1,000 kg threshold for manufacture, import, and use;
   
• Part 3 — Substances reportable at 100 kg threshold for import and use, and only for specific application; and
   
• Part 4 — Substances reportable at 100 kg threshold for manufacture, import, and use with additional use activity.

Persons Required to Provide Information

Persons described in the notice are any person who, during 2022:

• Manufactured a total quantity greater than 100 kg of a substance listed in Part 1 or Part 4 of Schedule 1 of the notice, or manufactured a total quantity greater than 1,000 kg of a substance listed in Part 2 of Schedule 1;
   
• Imported a total quantity greater than 100 kg of a substance listed in Part 1 or Part 4 of Schedule 1, or imported a total quantity greater than 1,000 kg of a substance listed in Part 2 of Schedule 1, where the substance was:
  
  • Alone;
     
  • At a concentration equal to or above 0.1 percent by weight (w/w%) in a mixture or in a product; or
     
  • At a concentration equal to or above 0.1 w/w% in a manufactured item that is:
    
    • Intended to be used by or for children under the age of 14 years;
       
    • Intended to come into contact with the mucosa of an individual, other than eyes;
       
    • Intended to release the substance during conditions of use such that the substance may be inhaled or come into dermal contact with an individual;
       
    • Cookware, or a cooking or serving utensil that is intended to come into direct contact with a heated food or beverage;
       
    • Food packaging material, including single serve/disposable bowls, plates, cups, other serving ware, as well as food cans and lid liners, that are intended to or may come into direct contact with food or beverage;
       
    • A reusable food or beverage container;
       
    • Clothing or footwear;
       
    • Bedding, sleeping bag, or towel;
       
    • Furniture, mattress, cushion, or pillow intended to be used in a residence, where the substance is contained in foam or leather or in a textile fiber, yarn, or fabric; or
       
    • Carpet, vinyl or laminate flooring, or foam underlay for flooring, intended to be used in a residence;
       
• Imported a total quantity greater than 100 kg of a substance listed in Part 3 of Schedule 1, where the substance was:
  
  • Alone and described by one or more of the associated application codes in Part 3 of Schedule 1; or
     
  • At a concentration equal to or above 0.1 w/w% in a mixture, product, or manufactured item and described by one or more of the associated application codes in Part 3 of Schedule 1;
     
• Used a total quantity greater than 100 kg of a substance listed in Part 1 or Part 4 of Schedule 1, or used a total quantity greater than 1,000 kg of a substance listed in Part 2 of Schedule 1, in the manufacture of a mixture, a product, or a manufactured item, where the substance was:
  
  • Alone; or
     
  • At a concentration equal to or above 0.1 w/w% in a mixture or in a product;
     
• Used a total quantity greater than 100 kg of a substance listed in Part 3 of Schedule 1 in the manufacture of a mixture, a product or a manufactured item that is described by one or more of the associated application codes in Part 3 of Schedule 1 and where the substance was:
  
  • Alone; or
     
  • At a concentration equal to or above 0.1 w/w% in a mixture or in a product; or
     
• Used a total quantity greater than 100 kg of a substance listed in Part 4 of Schedule 1, in activities other than in the manufacture of a mixture, a product, or a manufactured item where the substance was:
  
  • Alone; or
     
  • At a concentration equal to or above 0.1 w/w% in a mixture or in a product.

Exclusions

The notice does not apply to a substance, whether alone, in a mixture, in a product, or in a manufactured item that:

• Is only in transit through Canada;
   
• Is, or is contained in, a hazardous waste or hazardous recyclable material regulated by the Cross-border Movement of Hazardous Waste and Hazardous Recyclable Material Regulations;
   
• Is, or is contained in, a pest control product registered under the Pest Control Products Act;
   
• Is, or is contained in, a fertilizer or supplement registered under the Fertilizers Act;
   
• Is, or is contained in, a feed registered under the Feeds Act;
   
• Is mixed with, or attached to, a seed registered under the Seeds Act;
   
• Is tetrachloroethylene (Chemical Abstracts Service Registry Number^® (CAS RN^®) 127-18-4) used in dry cleaning and is subject to the reporting obligations under Section 14 of the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations;
   
• Is tetrachloroethylene (CAS RN 127-18-4) used in solvent degreasing and is subject to the reporting obligations under Section 7 of the Solvent Degreasing Regulations;
   
• Is trichloroethylene (CAS RN 79-01-6) used in solvent degreasing and is subject to the reporting obligations under Section 7 of the Solvent Degreasing Regulations; or
   
• Is listed in Part 3 of Schedule 1 that is intended for applications other than the application codes listed in Part 3 of Schedule 1.

Information Required

Amalgamated Information for Multiple Facilities

The notice states that if the person subject to the notice owns more than one facility, a single response to the notice shall be submitted for all facilities.

Contact Information

Any person to whom this notice applies shall provide the following information:

• The name of the person;
   
• The address;
   
• The federal business number;
   
• The name, address, e-mail, and phone number of an individual authorized to act on behalf of the person; and
   
• A declaration that the information is accurate and complete.

Total Quantities

For each substance that meets the criteria set out in the notice, the person to whom the notice applies shall provide the following information for the reporting year:

• The total quantity of the substance manufactured, in kg;
   
• The total quantities of the substance imported, in kg, alone, in a mixture, in a product, or in a manufactured item;
   
• The total quantity of the substance used in the manufacture of a mixture, a product, or a manufactured item, in kg, whether alone, in a mixture, or in a product;
   
• The total quantity of the substance in Part 4 of Schedule 1 used in activities other than in the manufacture of a mixture, a product, or a manufactured item, in kg, whether alone, in a mixture, or in a product; and
   
• A description of the activities for which the substance is used.

Facilities

For each of the person’s facilities, other than distribution and warehousing, where more than 100 kg of any substance that meets the criteria set out in the notice was released or may have been released to the environment in the reporting year, the person to whom this notice applies shall provide the following information:

• The Canadian facility name and address;
   
• The applicable six-digit North American Industry Classification System (NAICS) code(s); and
   
• For each facility and substance, for the reporting year:
  
  • The total quantity of the substance manufactured at the facility, in kg;
     
  • The total quantity of the substance used at the facility in the manufacture of a mixture, a product, or a manufactured item, whether alone, in a mixture, or in a product, in kg;
     
  • The total quantity of the substance in Part 4 of Schedule 1 used at the facility in activities other than in the manufacture of a mixture, a product, or a manufactured item, whether alone, in a mixture, or in a product, in kg, and a description of the activities for which the substance is used; and
     
  • Whether releases of the substance from the facility to air, water, or land are monitored.

Information on Goods

For each substance that meets the criteria set out in the notice, the person to whom the notice applies shall provide the following information for the reporting year with respect to their goods sold, if the substance was contained in those goods, or if the substance was used in the manufacture of those goods:

• The application code that describes the goods;
   
• The substance function code(s) that apply to the substance associated with the application code provided;
   
• Where code U999 is provided, a written description of the substance function; and
   
• For each combination of substance and application code, the person shall provide the following information:
  
  • The concentration, or range of concentrations, of the substance by w/w% in the goods;
     
  • The quantity, or quantity range, of the substance in all of the goods combined, in kg;
     
  • The export quantity, or export quantity range, of the substance in all of the goods combined, in kg; and
     
  • Whether the goods sold were intended for final use, for use in the manufacture of other goods, or for both.

For goods containing the substance that were described as intended for final use, the person to whom this notice applies shall provide the following information for the reporting year:

• A description of each of the goods;
   
• Common or generic name(s) of the goods;
   
• Whether the goods are intended for commercial use;
   
• Whether the goods are intended for consumer use; and
   
• Whether the goods are intended for use by or for children 14 years of age or younger.

For goods containing the substance that were described as intended for use in the manufacture of other goods, the person to whom the notice applies shall provide the following information for the reporting year:

• A description of the goods intended for final use in which the substance is contained;
   
• Common or generic name(s) of the goods intended for final use in which the substance is contained;
   
• Whether the goods intended for final use in which the substance is contained were intended for commercial use;
   
• Whether the goods intended for final use in which the substance is contained were intended for consumer use; and
   
• Whether the goods intended for final use in which the substance is contained were intended for use by or for children 14 years of age or younger.

For each substance that meets the criteria set out in the notice, the person to whom this notice applies shall provide the title(s) of any unpublished data or studies related to the substance that have not already been provided under the New Substances Notification Regulations (Chemicals and Polymers) or under CEPA Section 70.

Supplemental Tools and Information

Foreign Supplier Letter

If persons require information from foreign suppliers to respond to the notice, Canada has provided a letter for foreign suppliers to include in communications with them. The letter is also available upon request by contacting the Substances Management Information Line.

Guidance Document

Canada has provided a guidance manual for persons to help determine if they are subject to the notice and for assistance with completing the sections of the notice. The guidance manual includes several flowcharts that provide additional details on the reporting criteria that must be considered when determining whether a response is required.

Responding to the Notice

The Excel Reporting File, as well as information on how to submit a Section 71 response, a Declaration of Stakeholder Interest (SHI), or a Declaration of non-engagement (DNE) can be found on the “Responding to the section 71 Chemicals Management Plan 2023 notice” web page.

Commentary

This is a sweeping, significant initiative, the implications of which will influence commercial transactions for years to come. Environment and Climate Change Canada (ECCC) and Health Canada will use submitted information to prioritize chemical review and regulation. Persons are required to provide information that they possess or to which they may be reasonably expected to have access. According to the guidance manual, manufacturers are “reasonably expected” to have access to their formulations; importers are “reasonably expected” to have access to import records and relevant safety data sheets (SDS); and users and importers are “reasonably expected” to contact their suppliers to obtain information on their substances.

While foreign suppliers are not subject to the notice, the guidance manual states that they “are encouraged to inform their Canadian customers (i.e., Canadian importers) that they import a reportable substance and may meet the reporting requirements of the notice.” The guidance manual notes that foreign suppliers can also choose to submit information and respond to the notice on behalf of Canadian importers. If confidential business information (CBI) cannot be shared with Canadian importers, there is a blind submission process that allows foreign suppliers and their Canadian importers “to collaborate and provide all the information required in the notice while still protecting CBI.”

The guidance manual notes that the absence of information “may result in the use of conservative assumptions in future risk assessments. Consequently, risk management measures may be implemented that impact your ability to sell certain substances or mixtures, products or manufactured items containing these substances to Canada.” For persons that do not meet the reporting requirements but have activity with one or more of the reportable substances or have information that the government may find useful, Canada encourages the submission of an SHI. Canada encourages persons that do not meet the reporting requirements or have no activity with any of the reportable substances to provide a DNE.

Stakeholders should review the list of 850 substances included in the notice for any chemicals of concern. As reported in our June 23, 2023, memorandum, under the recent CEPA amendments, ECCC will develop a new plan of chemical management priorities and will propose a new regime to manage toxic substances of highest risk. Canada will also create a publicly available “Watch List” of substances determined to be capable of becoming toxic under CEPA to inform Canadians and businesses of substances that they may wish to avoid.

We urge clients and friends to engage in this initiative as it is too consequential to ignore.