Jurisdiction (Packaging)

Jurisdiction

A number of jurisdictional issues make a coordinated and coherent approach to food packaging more challenging. Authority and regulations fall under all three levels of government.

Federal

Packaging in contact with food (primary packaging) is regulated for safety under Division 23 of the Food and Drugs Act and Regulations.  Essentially, it is illegal to use packaging that imparts contaminants to food. Until 2014, food packaging in federally regulated establishments had to be pre-approved and listed before it could be released to the market, but now such pre-market assessments are voluntary.  The CFIA provides industry guidance.

The Safe Food for Canadians Act and Regulations (which incorporates some of the provisions of the earlier Canadian Consumer Packaging and Labeling Act) sets out operational requirements for food packing and packaging.  These provisions are primarily about food safety and fraud prevention.  Although the Act was passed in 2012, not all of its provisions may yet be in force.  The regulations regarding packaging material approvals and food safety are also discussed under Goal 4.

However, packaging is not federally regulated for its resource consumption or negative environmental impact unless the materials or breakdown by-products are considered toxic under the Canadian Environmental Protection Act, Part V, Controlling Toxic Substances. Section 68 defines what is considered toxic, and Schedule 1 contains the list of toxic substances, some of which have been used in the past in packaging, and some that are still used and are constituents of plastics. Microbeads in toiletries are already on the list, as is bis-phenol A (BPA).  As a result, all of these substances have mitigation strategies.

Other plastics may be regulated under section 90(1) of CEPA, and  placed  on the List of Toxic Substances, Schedule 1. ECCC released a draft Science Assessment of Plastic Pollution in early 2020, how plastics can be toxic in the environment once used (it is not, however, a discussion of inherent toxicity).  Macroplastics are also being assessed, particularly single use plastics (Baker McKenzie, 2020).

Most packaging materials are derived from forest products, petrochemical extraction or mined metals.  Each of these areas has a complex set of jurisdictional elements, although the provincial and territorial governments are largely responsible for land use within their territory.  The federal role is typically restricted to activities on federal crown land and First Nations territories, off shore, and for cross-border issues and trade.  Although governments have programs encouraging sustainability, these are relatively weak, and the most robust standards are typically associated with third party CSO - led collaborations in which governments and businesses sometimes participate.  However, the legitimate federal role in such circumstances is often to create, in consultation with other parties, robust national standards that all actors and P/T governments must follow.

Provinces

Provinces and territories are primarily responsible for environmental protection and waste management, under property provisions of the Constitution (see Instruments, Constitutional Provisions).  They also have very significant roles in forest management, petrochemical extraction and mining. They set waste policies and programs, and approve and monitor waste management facilities and operations.  Much of this waste management operational work, however, is assigned to the municipalities.  However, as with the federal government, the provinces do not regulate the resource requirements of packaging, focusing primarily on how to deal with the waste once generated.  Extended Producer Responsible (EPR) is also primarily provincial/territorial jurisdiction and all provinces/territories have policy provisions saying they will follow an EPR approach (Giroux et al., 2014).  However, little of the appropriate regulatory infrastructure to make EPR a reality has been put in place by P/Ts. Some provinces are also developing a circular economy approach, but most provisions are in their infancy.

Municipalities

In most provinces, local and regional municipal governments have been given responsibility  for the collection, recycling, composting, and disposal of household waste.  In turn, many municipalities contract out waste management services to the private sector.  Unfortunately, in most municipalities, the focus is on diverting materials from landfill, but not necessarily reducing the generation of waste in the first place.  Again, the waste management hierarchy is not fully respected (see Conceptual Frameworks). The related dilemma is that practices vary municipality by municipality, so manufacturers can't develop a uniform approach.  This suggests the need for more robust federal intervention around packaging standards.