Canada Gazette, Part I, Volume 152, Number 13: Regulations Amending the Concentration of Phosphorus in Certain Cleaning Products Regulations

March 31, 2018

Statutory authority

Canadian Environmental Protection Act, 1999

Sponsoring department

Department of the Environment

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Canada is bound by the World Trade Organization (WTO) Agreement on Trade Facilitation (the Agreement), which modernizes and simplifies customs and border procedures for all WTO members. Legislative amendments were made to the Canadian Environmental Protection Act, 1999 (CEPA) under Bill C-13 in December 2016 to enable Canada to ratify the Agreement. Regulatory amendments are required to the Concentration of Phosphorus in Certain Cleaning Products Regulations (the Regulations) to ensure consistency with Canada's international obligations under the Agreement. In addition, two minor issues regarding clarification and standardization have been identified in the Regulations.

Background

The Agreement came into force on February 22, 2017. The Agreement is the first multilateral treaty to emerge from the WTO since its creation, reinforcing the important role of the WTO as a negotiating forum for global trade rules.

The Agreement limits the ability of a WTO member to apply technical regulations to goods moving through its territory from a point outside its territory to another foreign point (i.e. goods in transit). The Regulations would likely constitute a "technical regulation" as defined under the WTO's Technical Barriers to Trade Agreement, because they are mandatory, they apply to an identifiable product, and they clearly outline the product's characteristics. Section 117 of CEPA prohibits the import, and thus transit, of cleaning products or water conditioners that contain prescribed nutrients, including phosphorus, in excess of prescribed values. The Regulations do not provide an exemption for goods in transit.

The Regulations, which first came into effect in 1989, set record-keeping requirements and limits for the concentration of phosphorus in laundry detergents, household dish-washing compounds and certain household cleaners that can be manufactured or imported into Canada.^{footnote 1} The Regulations were introduced as a response to growing concerns regarding the over-fertilization of freshwater ecosystems and growth of harmful algae blooms in Canada's lakes and rivers. The main environmental concern with phosphorus is its role as a nutrient (fertilizer) in aquatic environments. Depending on factors within the water surface (such as temperature, light penetration and present phosphorus load), phosphorus can lead to changes in natural flora and fauna and in eutrophication in lakes, rivers, and coastal waters.^{footnote 2} Laundry detergents, household dish-washing compounds and certain household cleaners, such as sink, tub and tile cleaners, as well as drain cleaners or openers, contribute to this issue as they enter wastewater systems that drain into Canada's lakes and rivers.

The Regulations were amended in 2009 to broaden the scope to include household cleaning products and dish-washing compounds. Since household metal cleaners and de-greasing compounds do not generally enter the wastewater system, concentration limits for phosphorus were not applied to products used exclusively for these purposes. However, the Regulations can be misinterpreted to mean that the concentration limits do not apply to any product that can clean metal or de-grease.

With respect to laboratory accreditation, the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) raised concerns regarding the laboratory accreditation provisions in other regulations of the Department of the Environment (the Department). As a result, standard wording has been developed for use across all regulations of the Department with respect to laboratory accreditation provisions.

Objectives

The objective of the proposed amendments to the Concentration of Phosphorus in Certain Cleaning Products Regulations (the proposed amendments) is to ensure consistency with Canada's international obligations under the Agreement. The proposed amendments also aim to clarify the regulatory text and provide consistency and standardization of the laboratory accreditation provisions with other regulations of CEPA.

Description

The proposed amendments would

• — exempt cleaning products in transit through Canada from the Regulations;
• — clarify that the concentration limit for phosphorus in household cleaning products does not apply to products marketed exclusively as a household metal cleaner or de-greasing compound; and
• — revise the provisions related to laboratory accreditation to be consistent with other regulations of the Department.

"One-for-One" Rule

The "One-for-One" Rule would not apply to the proposed amendments as they are not expected to impact any stakeholders.

Small business lens

The small business lens would not apply to the proposed amendments as they are not expected to impact any stakeholders.

Consultation

On January 10, 2017, the Department published a consultation document on the proposed amendments for a 30-day public comment period. Comments were received from two stakeholders: one industry association and one Canadian business.

A summary of comments and responses to these comments are presented below.

Exemption for cleaning products in transit

Comment: The Canadian business expressed concerns that the proposed amendments to exempt cleaning products in transit would allow the manufacture of products in Canada with elevated phosphorus concentrations for use in Canada and in other countries. The industry association expressed concern that the proposed amendments would allow products in transit with elevated phosphorus concentrations to enter the Canadian market.

Response: The proposed amendments would not change the concentration limits for products manufactured in Canada for domestic or international use, or the concentration limits for products imported into Canada for use in Canada. Existing measures under the Customs Act limit the risk that goods in transit could be diverted into the Canadian market.

Household cleaners (section 6 of the Regulations)

Comment: The industry association requested further information regarding the circumstances prompting revisions to the household metal cleaners and de-greasing compounds exemption.

Response: The Regulations can be misinterpreted to mean that the concentration limits for phosphorus do not apply to any product that can clean metal or de-grease, rather than only to products marketed exclusively for these purposes. This misinterpretation could lead to the manufacture or import of multifunctional household cleaners with elevated concentrations of phosphorus. The proposed amendments would clarify that the concentration limits for phosphorus do not apply to household cleaners marketed exclusively as metal cleaners or de-greasing compounds.

Comment: The industry association suggested defining the term "household cleaner" and limiting the application of the Regulations to household cleaners that are designed to go "down the drain."

Response: The Department has provided compliance fact sheets to clarify products that would be considered "household cleaners" in Canada.^{footnote 3} Section 117 of CEPA is restricted to prohibiting the manufacture for use or sale in Canada or import of a cleaning product that contains a prescribed nutrient in a concentration greater than the permissible concentration prescribed for that product. Consequently, the proposed amendments cannot address issues related to product handling or intended disposal under the current wording of CEPA.

Accreditation of laboratories (section 7 of the Regulations)

Comment: The industry association noted the importance of current compliance and testing obligations for manufacturers or importers remaining the same.

Response: The proposed revisions to the laboratory accreditation provisions would not place any new requirements on regulatees or stakeholders subject to the Regulations. The SJCSR and the Standards Council of Canada (SCC) raised concerns regarding the laboratory accreditation provisions of the PCB Regulations. In response, the Department reviewed the wording of the laboratory accreditation requirements for all of its regulations in order to address the concerns of the SJCSR and the SCC in a consistent manner.

Rationale

The Agreement, ratified by Canada in 2016, limits WTO members' ability to apply technical regulations to goods, such as cleaning products, moving through their territory from a point outside their territory to another foreign point. The Agreement is intended to benefit Canada and other signatories by lowering trade costs and increasing exports. The proposed amendments would exempt cleaning products in transit through Canada from the prohibition on import in section 117 of CEPA. This would ensure Canada's consistency with its international obligations under the Agreement. As the United States, Australia, and members of the European Union have all ratified the Agreement, it is expected that these trade partners have implemented or are in the process of implementing similar exemptions for goods in transit.

Additional housekeeping changes would clarify that the phosphorus concentration limits do not apply to household cleaning products marketed exclusively as metal cleaners and de-greasing compounds, ensuring that the Regulations are not misinterpreted. These clarifications are not expected to have any impact on stakeholders as there are no changes to the way the Regulations have been enforced.

The proposed amendments would also modify the laboratory accreditation provisions to use standard wording developed for all regulations of the Department. The proposed amendments would not introduce any new testing or analysis requirements. They would continue to require that a laboratory hold the appropriate certificate of accreditation to perform the determination of the concentration of phosphorus. Therefore, the proposed amendments are not expected to have any impact on stakeholders.

Activities within the scope of compliance promotion and enforcement (such as periodic testing of products and changes to promotional material) are not expected to incur any additional costs to government. Thus, the proposed amendments are not expected to have any associated costs to government or industry.

Under the proposed amendments, the transportation of cleaning products exceeding Canada's phosphorus limits might occur; however, the Department does not expect this to pose significant environmental risk. Canada is not likely to be a major transportation route for non-compliant cleaning products in transit to other countries, given its size and location. Thus the risk of an accidental spill of such cleaning products occurring and reaching a water course is low.

In the event that a spill does occur, phosphorus is a nutrient and not a toxic substance and is therefore not expected to have an immediate harmful impact. Phosphorus is essential to life and only very high concentrations can cause direct toxic effects. Cleaning products covered by the Regulations account for a small proportion of the total phosphorus load to the environment. Since an increase of shipments of cleaning products containing elevated levels of phosphorus is not expected, and the risk of a spill is low, the impacts of the proposed amendments are expected to be low. Therefore, the negative environmental risks of the proposed amendments are expected to be low.

Contacts

PROPOSED REGULATORY TEXT

Notice is given, pursuant to subsection 332(1)^{footnote a} of the Canadian Environmental Protection Act, 1999 ^{footnote b}, that the Governor in Council, pursuant to section 118^{footnote c} of that Act, proposes to make the annexed Regulations Amending the Concentration of Phosphorus in Certain Cleaning Products Regulations.

Any person may, within 75 days after the date of publication of this notice, file with the Minister of the Environment comments with respect to the proposed Regulations or, within 60 days after the date of publication of this notice, file with that Minister a notice of objection requesting that a board of review be established under section 333 of that Act and stating the reasons for the objection. All comments and notices must cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to the Director, Products Division, Environmental Protection Branch, Department of the Environment, 351 St. Joseph Boulevard, Gatineau, Quebec K1A 0H3 (fax: 819-938-4480; email: ec.produits-products.ec@canada.ca).

A person who provides information to that Minister may submit with the information a request for confidentiality under section 313 of that Act.

Ottawa, March 22, 2018

Jurica Čapkun
Assistant Clerk of the Privy Council

Regulations Amending the Concentration of Phosphorus in Certain Cleaning Products Regulations

Amendments

1 The Concentration of Phosphorus in Certain Cleaning Products Regulations ^{footnote 4} are amended by adding the following before the heading "Prescribed Nutrients" before section 2:

Non-application of Section 117 of Act

1 Section 117 of the Canadian Environmental Protection Act, 1999 does not apply to a cleaning product that is in transit through Canada, from a place outside Canada to another place outside Canada.

2 Sections 6 and 7 of the Regulations are replaced by the following:

6 (1) The concentration of phosphorus in any household cleaner must not exceed 1.1% by weight expressed as phosphorus pentoxide or 0.5% by weight expressed as elemental phosphorus.

(2) Subsection (1) does not apply to

• (a) a laundry detergent or dish-washing compound; and
• (b) a product that is marketed exclusively as a metal cleaner or de-greasing compound.

Concentration of Phosphorus

7 Any determination of the concentration of phosphorus performed for the purposes of these Regulations must be performed by a laboratory that meets the following conditions at the time of the determination:

• (a) it is accredited
  • (i) under the International Organization for Standardization standard ISO/IEC 17025, entitled General requirements for the competence of testing and calibration laboratories, by an accrediting body that is a signatory to the International Laboratory Accreditation Cooperation Mutual Recognition Arrangement, or
  • (ii) under the Environment Quality Act, CQLR, c. Q-2; and
• (b) the scope of its accreditation includes the determination of the concentration of phosphorus.

Coming into Force

3 These Regulations come into force on the day on which they are registered.