Industry asks court to quash Canada's single-use plastics ban

A coalition of plastics companies has sued to block Canada's ban on six single-use plastic products, challenging Ottawa's decision to declare them "toxic" and prohibit them.

Responsible Plastic Use Coalition, which includes some of North America's largest resin makers and processors, is asking a federal court to quash the ban, which was announced June 20, and order the government to convene a scientific panel to review the decision.

"There is no credible evidence that any of the [plastics] are 'toxic,'" RPUC said in its lawsuit. "The [ban] was made despite a paucity of facts and evidentiary support about the nature and extent of the environmental contamination and harm arising from the SUPs [single-use plastics]."

But Steven Guilbeault, the minister of Environment and Climate Change Canada, said in an Aug. 9 statement that he expects the government to prevail in the lawsuit, which is testing the ministry's 2021 decision to label plastics manufactured products "toxic" so they could be regulated under the Canadian Environmental Protection Act.

"While a handful of plastic companies try to stop our ban on harmful single-use plastics, we are going to keep fighting for the clean, healthy environment Canadians deserve," Guilbeault said. "We're going to stick to the facts, which show very clearly that plastic pollution is harming our environment and we need to act."

The Canadian ban applies to single-use retail bags, cutlery, foodservice ware that's made from "problematic" or hard-to-recycle materials, ring carriers, stir sticks and straws.

Prohibitions on manufacturing and importing start to phase-in in December, with exports banned in 2025.

Guilbeault called on Canada's plastics industry to support government plans for net-zero waste, including requiring plastic products to have at least 50 percent recycled content by 2030, limiting the "chasing arrows" symbol to products that Canadian recycling plants can "actually process" and creating a registry that would collect life cycle data on plastics.

In his statement, he also called for support for a legally binding global treaty on plastics pollution.

But RPUC, which includes Nova Chemicals Corp., Berry Global Group Inc., LyondellBasell Industries and Dow Inc., said the government hasn't proven that plastic products are toxic under CEPA.

In a lawsuit filed July 15, it suggested the bar to regulation of plastic products under CEPA should be similar to that for drugs or guns.

"The substance must pose a threat or danger, in the same way that Parliament regulates other threats or dangers to the public, peace, order, health and security such as the regulation of narcotics and firearms pursuant to its criminal law power," RPUC said.

It argued the ban could allow the same plastic container to be sold in a hardware store to package nails but be banned from being sold in a grocery store to hold food.

"The same would not be true for other regulated manufactured items," RPUC said. "A firearm would not be safe for use in a restaurant, but unsafe in a hardware store."

The plastics companies, which also filed a related lawsuit last year challenging the "toxic" CEPA listing broadly, said the government must conduct a life cycle assessment of the environmental impact of alternatives to plastic.

"Such an assessment would include an investigation of the impacts of manufacture, raw materials, treating or preventing effluent, transportation of substitute products, and new sources of alternatives to the SUPs that are to be banned," the plastics companies said.

"The [plastic companies] do not dispute that reducing plastic pollution is desirable, but doing so should not come at the cost of increased environmental damage," RPUC said.

Industry groups have previously argued that the government should focus on helping to develop recycling technologies and building end markets for recycled plastic, and said they worried a "toxic" listing would scare off investment in the country.

Canada's environment ministry, however, pointed to its own 2020 science assessment of plastic pollution, which found that plastics are "pervasive" in the environment and that microplastic pollution harms wildlife.

"Single-use plastics, such as checkout bags and food and beverage service items, make up the bulk of macroplastics found on shorelines in Canada and internationally," the government said.

The 2020 assessment noted that microplastics have been detected widely in the environment and in people, and it noted concerns that other chemicals could latch on to plastics and basically hitch rides to spread more widely in the environment.

The study said information on the impact on human health remains "limited," and it said there's insufficient data to make robust evaluations of the risk to people from ingesting microplastics.

But it also recommended that given the rising amounts of plastic pollution in the environment, the government needed to act now "in accordance with the precautionary principle."

Some prominent researchers, including the University of Toronto's Chelsea Rochman, have argued the concentration of microplastics in the Great Lakes already supports a "toxic" designation under CEPA.

Guilbeault said the government is keeping its commitment to reduce plastic pollution.

"We promised Canadians we would deliver on banning harmful single-use plastics," he said. "Our choice is to stay focused on fighting plastic pollution and on fighting for our environment. And we're confident the courts will agree with our position.

"Instead of battling us in court, we want to work with Canada's plastics industry to keep plastics in the economy and out of the environment and landfills," Guilbeault said.

Toronto-based group Environmental Defence said the public wants action to reduce plastic pollution, and it called on consumers to boycott products from RPUC companies.

"Canadians should consider fighting back against these arrogant and destructive companies and start to refuse to buy and use their products," said Tim Gray, executive director. "These irresponsible companies just want to continue profiting from forcing their garbage on us. Disposable plastic has led to a pollution crisis in Canada and around the world."