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Making Producers Pay – From Stewardship to Innovative EPR Programs in Canada

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Written by Mark Youden and Maya Stano, Associate Lawyers at Gowling WLG

Product and packaging waste is increasingly drawing public attention across the globe. This stems, in part, from a growing awareness of massive plastic pollution accumulation zones in our oceans, government bans of single use plastics, China’s recent import ban on scrap plastics, and news of the Philippines wanting to return Canadian “recyclables.”  In this era, governments are increasingly turning to innovative waste management and diversion policies and laws.

To date, Canada has focused on two approaches for managing products and their packaging at end-of-life: (1) extended producer responsibility or “EPR”, and (2) product stewardship programs. For the most part, these programs (which cover various categories) fall under provincial jurisdiction.    

To varying degrees, these programs shift the end-of-life waste responsibility away from governments (and tax payers) and on to producers (e.g., brand owners, manufacturers and first importers).  Depending on the program, this responsibility includes reporting and funding (at least in part) the management of the waste created by their products.  

Stewardship versus EPR

Although often used interchangeably, there are key policy differences between product stewardship and EPR programs (as well as significant corresponding financial implications for companies). Generally speaking, EPR programs place responsibility (and costs) on product producers, whereas product stewardship programs generally rely on consumer-paid environmental fees or public funds. Although the emphasis in Canada has historically been on product stewardship programs, there is a growing shift towards transforming those initiatives to full-fledged EPR programs. Such EPR programs place full responsibility for designing, operating and financing diversion programs, and accountability for the program’s environmental performance, on producers.  The concept is intended to incentivize companies to not only bear responsibility for, but actually reduce, their product waste footprint (e.g., through recyclable product and packaging innovation).

Status of EPR Programs

Provincial Level

In 2014, British Columbia became the first jurisdiction in Canada to implement an EPR system making producers fully responsible for funding and managing curbside and drop-off recycling programs for packaging and printed paper. Under the province’s Environmental Management Act and Recycling Regulation, producers must recover 75% of the paper and packaging they produce, and face fines if they don’t achieve this target.

Full EPR programs have not yet been implemented in other provinces – some provinces do require producers to pay for part of their recycling, but none outside of BC require producers to manage the actual system. At the local level, municipalities often bear the burden of dealing with urban waste generation, and towns and cities are increasingly expressing support for full EPR implementation to help cover the costs of expensive recycling programs. For example, the City of Calgary recently passed a motion to push the province into looking into EPR programs. 

Similarly, in Ontario producers are required to pay for 50% of the recycling system, but municipalities are actively calling for a full EPR model. In 2016, Ontario passed a groundbreaking bill that instituted an EPR requirement for all product categories. The bill also sought to prevent producers from discharging their liabilities to a third party, thereby making them fully responsible. These efforts culminated in the adoption of several new laws, including the Waste Diversion Transition Act, 2016 (which includes payments to municipalities to cover their costs associated with the blue box recycling program), and the Resource Recovery and Circular Economy Act, 2016 (which led to the development of the Strategy for a Waste-Free Ontario: Building the Circular Economy).

Federal Level

At the federal level, the Canadian Council of Ministers of the Environment began taking action in the late 1990’s in regard to its waste reduction target of 50% of the product waste that is placed into the market. Since 2004, the CCME has published several reports, analyses, studies, tools and progress reports in regard to the Canada-wide Action Plan for Extended Producer Responsibility, with product packaging recognized as a priority in that plan.

International Level

EPR has a long history in Europe, where it has existed in varying forms since 1990. Sweden and Germany led the way by encouraging industries that made and sold products to be responsible for the waste stage of those products. EPR programs subsequently spread to other EU countries and beyond.

Challenges with recycling recently led to the EU’s approval of a law banning 10 types of single-use plastics by 2021 as part of its shift towards a circular economy (which aims to keep resources in use for as long as possible, extract the maximum value from them whilst in use, and recover and regenerate products and materials at the end of each service life). Canadian federal MP Nathan Cullen has recently introduced a private member’s bill, Bill C-429, the Zero Waste Packaging Act, which seeks to follow the EU lead.1 Stay tuned on the progress of those efforts as they evolve here in Canada.

The Spotlight on Product and Packaging Waste

A dispute between the Philippines and Canada has recently drawn attention on Canada’s product and packaging waste system.  In April 2019, the Philippines demanded that Canada take back shipping containers full of waste and recyclable plastics. Canada originally argued that it is not responsible for returning the waste that was shipped. This dispute, spanning over 5 years now, is complicated by obligations under international law (including the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1992).  As threats from the Philippines President escalated in late April 2019, Canada offered to accept and pay for the return of close to 70 shipping containers.Those containers are now on their way back to Canada. 

This international dispute has placed the spotlight on the state of recycling in Canada (as many did not realize Canada ships its waste elsewhere).  This, coupled with the public criticism over the effectiveness of Canada’s recycling regime, could spark local governments to expedite implementation of waste reduction policy and full-EPR programs. 

In summary, EPR and product stewardship programs are here to stay and will increasingly impose significant requirements on product producers.  Our Gowling WLG team has extensive experience in the detailed requirements that must be followed to ensure legal compliance. Should you have any concerns or questions regarding your company’s product stewardship and EPR duties, please contact one of our knowledgeable team members.


1 https://www.parl.ca/DocumentViewer/en/42-1/bill/C-429/first-reading#enH123


NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.

About the Authors

Mark Youden is an associate lawyer in Gowling WLG’s Vancouver office, practising in the firm’s Environmental and Indigenous Law groups. Mark is called to the bar in British Columbia, Alberta and Ontario and advises a wide range of clients on all aspects of environmental, Indigenous and regulatory law issues.

Prior to studying law, Mark obtained a Master of Science focused on biophysical interactions and the fate of contaminants in terrestrial and aquatic systems. He also worked as an environmental consultant for an international engineering firm.

Mark’s scientific expertise and multidisciplinary approach to the law help him provide clients with practical solutions to complex environmental and Indigenous law matters.

Maya Stano is a Vancouver-based Gowling WLG associate lawyer who practises natural resource, environmental and Indigenous law.

Maya has a wide range of legal experience assisting individuals, companies and Indigenous Nations and other levels of governments on natural resource projects, including mining, forestry, large and small scale hydro projects, oil and gas projects, and nuclear projects. Maya provides timely and effective advice at all stages of project life, from early planning and tenure applications, through construction, operations and final closure, decommissioning and reclamation. Maya’s services cover due diligence matters, permitting (including environmental assessments), land rights (including leases and other land access and tenure agreements), regulatory compliance, and engagement and agreement negotiations between First Nations, the Crown and proponents.

Maya also assists Indigenous Nations in various government-related matters, including drafting laws and bylaws, drafting and implementing trust instruments for sustainable long-term financial management, managing land use and rights on reserve, and working with land codes and other governance matters.

Maya studied law at the University of British Columbia, graduating with a specialization in environmental and natural resource Law. After graduation, Maya clerked at the Federal Court of Canada for the Honourable Mr. Justice John A. O’Keefe. Concurrently, she completed an LLM at the University of Ottawa, focusing on the legal implications associated with lifecycle management of metals.

Maya is also a professional geological engineer and previously worked on mining projects both domestically and abroad, as well as on contaminated sites across British Columbia, and on oil and gas projects in northern Alberta.

Ontario Government’s Proposed E-Waste & Battery Regulations

The Government of Ontario is consulting on proposed regulations for specified waste electrical and electronic equipment (WEEE) and used batteries under the Resource Recovery and Circular Economy Act, 2016.
 
The new regulations will affect participants of the current Waste Electrical and Electronic Equipment Program operated by Ontario Electronic Stewardship (OES).
 
The Ontario government has directed OES to wind up its operations to support the transition of the current waste diversion program for electronics to a new system that makes producers environmentally accountable and financially responsible for their products at end-of-life.

The proposed regulations would require:

  • producers to establish free collection networks for consumers
  • producers to achieve resource recovery (i.e. reduction, reuse and recycling) targets
  • producers to provide promotion and education materials to increase consumer awareness
  • producers and service providers to register, report and keep records and meet other requirements

The regulations would also encourage producers to reduce waste associated with the regulated products they supply into the Ontario market.

Review the draft regulations and register for a consultation webinar.

The Resource Productivity and Recovery Authority will be the regulator mandated by the Government of Ontario to enforce the requirements of the new WEEE and used batteries regulations once they take effect.

Ontario Electronic Stewardship will continue to operate the current program without disruption until the proposed regulations take effect.

Extended Producer Responsibility for Textiles? Not So Fast…..

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Written by Calvin Lakhan, Ph.D, Faculty of Environmental Studies at York University

In the Ontario Environment Ministry’s Reducing Litter and Waste in Our Communities Discussion Paper, the question was posed:

What additional materials do you think should be managed through producer responsibility to maximize diversion?

Stakeholders from across the used textile collection sector highlighted textiles as being a potential candidate for extended producer responsibility (EPR).

Given the hundreds of thousands of tonnes of used textiles being generated annually, it seems only logical that producers should be tasked with the physical and financial responsibility for managing these items at their end of life.   

However, when the university was asked to take a position supporting a producer responsibility scheme for textiles, I hesitated.

I want to preface this by saying that I feel that producer responsibility has a place in promoting a circular economy – In theory,  EPR is supposed to encourage design for the environment (have producers use more sustainable materials), promote positive environmental outcomes (increased diversion), and contain costs (incentive to minimize costs associated with end of life management).

Would EPR for textiles achieve these desired outcomes?

Before answering this, let’s remember what EPR is actually designed to do –  EPR is a cost recovery tool to finance the operational and administrative expenses associated with managing a material at its end of life.

Steward fees (what industry pays to finance a producer responsibility program) is based on net cost of material management. As an example, the fees associated with Blue Box materials are in direct proportion to the system costs attributable to said material. For packaging like plastics film and polystyrene, producers pay an extremely high steward “fee” because the net cost of material management is in excess of $1500 a tonne. Conversely, aluminum producers do not pay any fees, as they have a negative net cost (the revenue received supersedes the cost of material management).

Why this matters for textiles is that at present, net cost of material management for textiles is negative. Due to the high value of used textiles as a commodity, numerous organizations from across the for profit/not for profit sector collect used textiles, using a range of collection mediums.

Textiles, unlike most other waste streams, are being collected by third party operators, even in the absence of material specific legislation. The value of used textiles results in a self-sustaining collection network that ultimately negates the need for cost recovery schemes such as extended producer responsibility.

There is even an argument to be made that the low diversion rates for textiles is attributable to a lack of opportunity and awareness among households (as opposed to a lack of organizations willing to collect the material).

At present, there are no *net* costs to recover for used textile collectors, and EPR becomes moot.

Where this situation may change is in situations where used textile collectors begins to incur operational expenses that exceed the revenue that they receive from the material. This could be attributable to any number of things – management of low grade materials that have minimal value at end of life, a decrease in commodity value (due to either increasing supply of used textiles, or decreases in demand), and the development of domestic processing/recycling capacity that require infrastructural investments.  In these instances, EPR could be seen as a potential cost recovery tool.

Practical challenges to implementing a producer responsibility scheme for textiles

If EPR is adopted at a provincial (or national) scale, we must be cognizant of the enormous administrative challenges of developing such a program. The creation of an IFO/ISP, calculating and collecting fees, disbursing fees to service providers etc. are all necessary steps when developing a producer responsibility program.

Furthermore, the technical challenges of being able to readily quantify end of life material management costs, and then allocating those costs to specific stewards will require a fundamental overhaul in how we collect and interpret data related to textile generation/recovery. Of note, all EPR programs differentiate fees based on product or material type (i.e. a fee for a television is greater than the fee for a cell phone because of the differences in end of life management costs). This process would need to be replicated for all textile types being sold into the market in order to correctly allocate costs.

Simply put, formal programs for textile diversion are in their infancy, and we are still a long way from having the understanding to conceptualize what a producer responsibility scheme might look like. To provide context, Ontario’s Blue Box, which has had a (partial) producer responsibility scheme for the better part of two decades, continues to struggle with how to reconcile the opposing interests of both stewards and municipalities. It is a highly contentious process that is fraught with difficulty as stakeholders try to determine what is fair and reasonable.

Be careful what you wish for

While most stakeholders involved in used textile collection advocate for EPR, it is important to keep in mind that under a 100% EPR model, stewards will assume ownership of all recovered materials. While yes, they will be physically and financially responsible for all end of life material, they will also be entitled to the revenue received from the sale of that material.  

At present, it is unclear what the implications of a 100% producer responsibility model would be for used textile collectors, particularly in the charitable/not for profit space. Stewards may ultimately decide to rely on the existing collection networks in place (as opposed to doing it themselves), and designate certain organizations as a preferred service provider. It is entirely possible that charities/not for profits would then compete with other collectors to be a service provider, essentially reverting to a “bid/tender” process.

What should we do?

While the future of textile legislation, and what role EPR should play remains unclear, the key to developing a sustainable, circular textile market lies in flexible, non-prescriptive legislation. A necessary first step is to designate textiles as a priority material, but leave it up to the market to organically develop solutions to keep material out of landfill, and maximize the economic, environmental and social impact of recovery. Rapid changes in textile end markets, the types and quantities of textiles being generated, and technologies to recycle/reprocess textiles requires legislation that can grow and adapt to reflect the conditions of an evolving market place.

Note: This article reflects the sole opinion of the author. He does not speak on behalf of the university or any of its stakeholders.


About the Author

Calvin LAKHAN, Ph.D, is currently co-investigator of the “Waste Wiki” project at York University (with Dr. Mark Winfield), a research project devoted to advancing understanding of waste management research and policy in Canada. He holds a Ph.D from the University of Waterloo/Wilfrid Laurier University joint Geography program, and degrees in economics (BA) and environmental economics (MEs) from York University. His research interests and expertise center around evaluating the efficacy of municipal recycling initiatives and identifying determinants of consumer recycling behavior. Calvin has worked as both a policy planner for the MOECC and as a consultant on projects for Stewardship Ontario, Multi Material Stewardship Manitoba, and Ontario Electronic Stewardship. Calvin currently sits on the editorial board for Advances in Recycling and Waste Management, and as a reviewer for Waste Management, Resources Conservation and Recycling and Journal of Environmental Management

Europe Announces ban of Single Use Plastics and Extends Extended Producer Responsibility Programs

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The European Parliament recently agreed on the ambitious measures proposed by the European Commission to ban selected single-use products made of plastic as well as introduce extended producer responsibility (EPR) for new products.

The new rules are an attempt to lesson marine pollution by plastic and abandoned fishing gear and oxo-degradable plastics.

Once the rules are in place, cotton bud sticks, cutlery, plates, straws, stirrers, sticks for balloons that are made of plastic will be banned in the European Union (EU).

The new rules also ban cups, food and beverage containers made of expanded polystyrene and on all products made of oxo-degradable plastic. Oxo-degradable plastics are made of petroleum-based polymers(usually polyethylene (PE)) that contain additives (usually metal salts), which accelerate their degradation when exposed to heat and/or light. The argument for banning oxo-degradable plastics is that they are similar to conventional plasticmaterials but have artificial additives. They do not actually biodegrade but merely fragment into small pieces and potentially harm the environment and endanger recycling and composting operations.


While often confused with biodegradable plastics, oxo-degradables are a category unto themselves. They are neither a bioplastic nor a biodegradable plastic, but rather a conventional plastic mixed with an additive in order to imitate biodegredation.

The new rules include EPR schemes for cigarette filters and fishing gear.
Producers of cigarettes with filters (the filters are not biodegradable) will help cover the costs of waste management and clean-up. Producers of plastic fishing gear will be required to cover the costs of waste collection from port reception facilities and its transport and treatment. They will also cover the costs of awareness-raising measures.  Producers will also be given incentives to develop less polluting alternatives for these products

Single-use drinks containers made with plastic will only be allowed on the market if their caps and lids remain attached. Also, the diversion target for plastic bottles was set at 90% by 2025. One method to achieve the high diversion rate is deposit refund schemes.

The rules on Single-Use Plastics items and fishing gear, addressing the ten most found items on EU beaches place the EU at the forefront of the global fight against marine litter. They are part of the EU Plastics Strategy – the most comprehensive strategy in the world adopting a material-specific lifecycle approach with the vision and objectives to have all plastic packaging placed on the EU market as reusable or recyclable by 2030. The Single-Use Plastics Directive adopted by the European Parliament today is an essential element of the Commission’s Circular Economy Action Plan as it stimulates the production and use of sustainable alternatives that avoid marine litter.

Vice-President Jyrki Katainen, responsible for jobs, growth, investment and competitiveness, added: “Once implemented, the new rules will not only prevent plastic pollution, but also make the European Union the world leader in a more sustainable plastic policy. The European Parliament has played an essential role in laying the foundation for this transformation and in giving a chance to the industry to innovate, thus driving forward our circular economy.”

The Single-Use Plastics Directive voted on by the European Parliament today tackles directly marine litter thanks to a set of ambitious measures:

  • A ban on selected single-use products made of plastic for which alternatives exist on the market: cotton bud sticks, cutlery, plates, straws, stirrers, sticks for balloons, as well as cups, food and beverage containers made of expanded polystyrene and on all products made of oxo-degradable plastic.
  • Measures to reduce consumption of food containers and beverage cups made of plastic and specific marking and labelling of certain products.
  • Extended Producer Responsibility schemes covering the cost to clean-up litter, applied to products such as tobacco filters and fishing gear.
  • A 90% separate collection target for plastic bottles by 2029 (77% by 2025) and the introduction of design requirements to connect caps to bottles, as well as target to incorporate 25% of recycled plastic in PET bottles as from 2025 and 30% in all plastic bottles as from 2030.

The proposed Directive follows a similar approach to the successful 2015 Plastic Bags Directive, which brought about a rapid shift in consumer behavior. The EU claims that , when implemented, the new measures will bring about both environmental and economic benefits. The economic benefits claimed by the new rule implementation include €22 billion in avoidance of environmental damage by 2030 and €6.5 billion to consumers in savings in the form of reduced waste treatment by public authorities.

Next steps

Following this approval by the European Parliament, the Council of Ministers will finalise the formal adoption. This endorsement will be followed by the publication of the texts in the Official Journal of the Union. The Member States will then have two years to transpose the legislation into their national law.

Consultations begin on Ontario Electronic Stewardship’s Wind-Up Plan

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The Ontario Resource Productivity and Recovery Authority (RPRA) is consulting with stakeholders and the public on Ontario Electronic Stewardship’s (OES) Wind-Up Plan for the Waste Electrical and Electronic Equipment (WEEE) Program. Public comment on the 85-page OES Wind up Plan will be accepted by the RPRA until April 18th.

Background on the Ontario Electronic Stewardship

Ontario Electronic Stewardship (OES) is an Industry Funding Organization (IFO) designated to operate the waste diversion program for waste electrical and electronic equipment (WEEE) under the Waste Diversion Transition Act, 2016 (WDTA). Since its inception in 2009, the WEEE program has diverted over 67 million electronic devices or over 500,000 tonnes of waste electronics from Ontario landfills. The WEEE program promotes the re-use and refurbishment of waste electronics and ensures that the valuable resources found in waste electronics, that cannot be re-used, are processed and recycled in an environmentally responsible manner.

Why is OES being wound up?

In 2016 the Ontario legislature passed the Resource Recovery and Circular Economy Act, 2016 (RRCEA) which creates a new legislative framework for managing waste in Ontario. Current waste diversion programs and related IFOs, such as Ontario Electronic Stewardship, will be wound up subject to provisions under the WDTA. Under the RRCEA, producers will be responsible for the implementation of new waste diversion programs that must meet recycling targets and objectives established under that Act.

Under the WDTA wind up process IFOs are required to develop wind up plans in accordance with specified statutory requirements once directed to do so by the Minister. Subsection 14 (13) of the WDTA requires IFOs to consult with stewards, municipalities and other stakeholders affected by termination of the program in developing wind up plans. IFOs submit wind up plans to the Resource Recovery and Productivity Authority (RPRA) which reviews and approves the plan if it is consistent with the Minister’s direction and statutory requirements.

In February 2018, OES received direction from the former Minister of Environment and Climate Change to wind up the WEEE program by June 30, 2020. (Note: In July 2018 the Honourable Rod Phillips, Minister of Environment, Conservation and Parks, assumed responsibility for administering the RRCEA and WDTA statutes.)

What’s Next in Ontario with respect to WEEE?

After wind up, electrical and electronic equipment will be managed under a new, mandatory individual producer responsibility (IPR) framework. This means that producers of electrical and electronic equipment will be responsible for ensuring their products and packaging are collected and reused or recycled at end-of-life. The RPRA is mandated by the Government of Ontario to oversee the wind up of Ontario’s current waste diversion programs and enforce IPR requirements.

Public Information and Feedback Sessions

The RPRA is hosting several sessions to present key elements of the plan for feedback and to answer any questions you may have. The sessions are open to all WEEE Program participants, municipalities, the public and other interested stakeholders.

The RPRA is encouraging all interested organizations and persons to attend to learn more about the wind-up, the new framework for electrical and electronic equipment.

The sessions consist of a presentation that will explore key aspects of OES’s proposed wind-up plan and there will be time for your questions. The Authority will also consult on OES’s revised projection for program surplus, which is based on information that was not available at the time of OES’s consultations.

The schedule for public consultations can be found in the table below.

LocationDate and TimeRegistration
WebinarThursday, March 21
1 p.m. – 3 p.m.
Register here
LondonFriday, March 22
10 a.m. – 12 p.m.
Register here
Ottawa (Kanata)Wednesday, April 3
9 a.m. – 11 a.m.
Register here
North BayThursday, April 4
9 a.m. – 11 a.m.
Register here
TorontoTuesday, April 9
9 a.m. – 12 p.m.
Register here
WebinarWednesday, April 10
10 a.m. – 12 p.m.
Register here

Feedback on the Wind-Up Plan is due by 5 p.m. on Thursday, April 18. You can provide feedback via email to consultations@rpra.ca.

Ontario: Orphaned Eco-Fees Raises Legal Questions for Electronics Industry

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by Jonathan D. Cocker, Baker McKenzie

Ontario’s waste electrical and electronic equipment (e-waste) stewardship obligations are being transitioned to a circular economy legal regime.  The government-overseen e-waste program is being wound-up and will effectively cease as of June 30, 2020. The program has managed to generate such a surplus of funds from consumers it otherwise would pay the electronics recycling industry that it’s obtained approval from the Ontario government to grant the industry, and presumably in turn, consumers a “fee holiday” in order to expend the surplus. The fee holiday started on February 1st, 2019 and runs until June 30, 2020.

This means no eco-fees (or Environmental Handling Fees) on electronics are to be charged and remitted for the next 17 months when the program ends.

No Relaxation For Electronics Industry During Fee Holiday

But what if the electronics supply chain and retailers somehow continue to pass the now orphaned eco-fee down the supply chain and ultimately to consumers in spite of industry’s inability to remit it.  Most consumers will not likely be aware of this reprieve in obligation. Most suppliers and retailers have systems already programed to charge the fee. It’s not clear any regulatory authority is actively policing industry on this. So if it’s business as usual in electronics sales, where will the money go and what are the risks?

Whose Money Is it Anyway?

The e-waste program, like all government-overseen plans in the province, funds its ongoing program costs with an eco-fee cost imposed upon consumers. The rates are rigidly set and the supply chain and retail parties simply pass the eco-fee through to point-of-sale and then remit to the program. No risks or rewards are assumed by these parties and there is no opportunity to internalize or otherwise alter the eco-fee for competitive or profit purposes.

The fees have not been, and cannot credibly be claimed as, margin adjustments when charged in an identical manner to unwitting consumers.  It would be difficult for industry to claim title to the monies, whether as an advance or an investment. The monies are simply consumer overpayments relative to the costs of the soon-to-be-defunct program, and the amount at issue is not insignificant. Orphaned eco-fees which could be passed to consumers during the holiday could potentially be as high as one hundred million dollars.

Duty of Care for Orphaned Eco-Fees

As the e-waste program can no longer accept eco-fees charged after February 1st, 2019, it raises questions as to what proactive measures the electronics industry, including brand owners and importers, must take to ensure no such fees continue to be passed on to consumers who should otherwise be enjoying the fee holiday they’ve effectively funded.

Ignorance of the holiday may not protect electronics companies. Through their participation in the e-waste program, industry will be deemed to have knowledge that any post-February 1st, 2019 eco-fees are effectively orphaned.  Nor are any parties clearly insulated from risk. Continued charging of the eco-fee by supply chain parties, effectively compelling retailers to recapture the costs from consumers, may also create legal uncertainty. All parties may have a duty of care here.

Be Neither Recipient Nor Beneficiary of Orphaned Eco-fees?

Resetting systems and processes to eliminate the eco-fee will be laborious. Instead, some parties within the electronics industry may be inclined to accrue the orphaned eco-fee for a future mutually-beneficial use, such as supporting industry-segmented private producer responsibility organizations which will rise from the ashes of the government program. This, however, may appear as industry doing indirectly what it cannot do directly and may not be defensible if and when someone comes asking about the treasure trove of orphaned fees.

It’s clear that the 17-month fee holiday journey to a private circular economy model for electronics provides no time off for industry.  It must act now to address any unsanctioned charging of orphaned eco-fees.  The holiday has already started.


About the Author

Jonathan D. Cocker heads the Firm’s Environmental Practice Group in Canada and is an active member of firm Global Consumer Goods & Retail and Energy, Mining and Infrastructure groups. Mr. Cocker provides advice and representation to multinational companies on a variety of environment, health and safety matters, including product content, dangerous goods transportation, GHS, regulated wastes, consumer product and food safety, extended producer responsibilities and contaminated lands matters. He appears before both EHS tribunals and civil courts across Canada. Mr. Cocker is a frequent speaker and writer on EHS matters, an active participant on EHS issues in a number of national and international industry associations and the recent author of the first edition of The Environment and Climate Change Law Review (Canada chapter) and the upcoming Encyclopedia of Environmental Law (Chemicals chapter).

Ontario: Electronics & Batteries Producer Responsibility Consultation Ends February 6th, 2019

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As part of the legal directive to transfer current government-overseen waste diversion obligations to a privately-run Individual Producer Responsibility regime (IPR), the Ontario Ministry of the Environment is currently holding consultations with stakeholders in the electronics/electrical equipment (EEE) and batteries industries regarding the coming circular economy regulation for EEE and batteries (and their packaging) and key decisions affecting industry are in the process of being made.

What’s the Mandate?

In understanding the anticipated reach of the EEE/Batteries Regulation, the Ministry is overtly promoting three goals:

  • Improved Environmental Outcomes, including reduction of toxics in landfill and related greenhouse gases;
  • Economic Growth, such as building more “infrastructure for reuse, refurbishment and recycling industries”; and
  • Consistency, Ease, Cost Efficiency and Reduced Burden, with an emphasis on shifting the costs of waste management to individual producers and consumers with the hope that more “competition, innovation and better product design” will result.

To help relieve municipalities of waste handling obligations, and to get itself out of the business of end-of-life product diversion (which it seems intent on doing), the Ministry is giving the EEE/Batteries Regulations a potentially broad and expansionist scope. As of July 1st, 2020, EEE and batteries “producers” will be compelled to resource recover the products (or equivalencies) they put into the Ontario market.

What Could Be Caught under the EEE/Batteries Regulation?

It seems likely that the product categories of one or both of these current diversion programs will be broaden under IPR to include the:

  • likely expansion from the existing 44 types of EEE to capture some or all of:
    • headphones;
    • routers;
    • large and small appliances; and
    • power tools and some categories of lighting.
  • near certain addition of rechargeable batteries;
  • maybe very limited types of EEE and/or batteries embedded in other products; and
  • remote prospect of obligating primary, convenience and/or transportation package used with EEE and/or batteries – given paper/packaging IPR has not yet been implemented in the province.

The addition of products not currently obligated under waste diversion will create immediate needs and opportunities for industries to find new resource recovery solutions to meet these needs.

Who’s Obligated under IPR?

Along with the group of currently obligated producers – namely resident brand owners and resident importers (and, for EEE, assemblers), the Ministry is considering adding one or more other parties which have a “commercial connection” to the products, such as non-resident:

  • importers;
  • wholesalers;
  • licencees;
  • retailers (including on-line out-of-province); and
  • distributors

Many of these companies would not necessarily replace any existing resident parties, but would, instead, be default-obligated for products with no resident “producers”.  The sanctions contemplated for non-compliance under the EEE/Batteries Regulation may well include a prohibition against the sale of products failing to meet their resource recovery targets.

Will it be Like the Tire Regulation?

More than a year ago, stakeholders in the EEE and batteries space were already paying close attention to the Ministry’s implementation of the Tire Regulation, North America’s first comprehensive circular economy law.  Given the breadth of obligations, including the producer’s private obligation to run a reverse supply chain, it’s anticipated that affected companies may respond similarly – coalescing around a limited number of producer responsibility organizations based upon commercial, industry, and market commonalities, to run end-of-life product networks that meet the unique needs of the separate producer groups.

Industry also learned through the Tire Regulation process that critical commercial outcomes can be based upon the content of the regulatory requirements and that full advantage should be taken of the windows of opportunity offered to engage the Ministry on key facets of the coming law.  One such window for EEE and batteries stakeholders is closing on February 6th, 2019.


This has been republished with the permission of Baker MacKenzie. It was first published on the Baker Mackenzie website.

About the Author

Jonathan D. Cocker heads the Baker McKenzie’s Environmental Practice Group in Canada and is an active member of its Global Consumer Goods & Retail and Energy, Mining & Infrastructure groups. He participated in founding one of North America’s first circular economy producer responsibility organizations. Jonathan is a frequent speaker and writer on EHS matters, an active participant on EHS issues in a number of national and international industry associations, and most recently the author of the first edition of The Environment and Climate Change Law Review (Canada chapter) and the upcoming Encyclopedia of Environmental Law (Chemicals chapter).

Green Recycling for BioPharma launches in Canada

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Softbox, a provider of temperature control packaging for the life science and logistics industries, recently launched a Green Recycling Service across the US and Canada.  The services demonstrates the company’s commitment to extended-producer responsibility.

The service for biopharma enables Softbox customers the ability to deal with packaging waste in an eco-friendly way.  The service is an all-inclusive, hassle-free, one-fee service that recycles used temperature control packaging systems (pallets, EPS foam, gel packs and corrugated components).

For biopharma customers, they simply pile all your used shipper components and contact Softbox when ready for a pick-up.  Softbox arranges for the collection of the shipper components and sends the shipment its recycling centre where the material will be turned into garden furniture, coat hangers, picture frames and other products.

“Softbox is highly committed to supporting its customers and providing cold chain packaging solutions that reduce waste and their impact on the environment,” said John Hammes, general manager of Softbox, US and Canada. “Our new Green Recycling Service allows us to go even further — by ensuring a sustainable alternative for ‘end of life’ temperature control packaging waste. Our US and Canadian customers can now significantly reduce their landfill impact and potentially reduce the cost they are paying today for non-sustainable waste. This programme will not only benefit Softbox’s green priorities, it will also help our BioPharma customers achieve their own sustainability objectives, reporting, and scores.

“With our exciting partnership now in place and serving several of our clients, our customers just need to make one phone call to Softbox, and we will arrange the collection and recycling of all their temperature control packaging waste — taking the time and effort out of their green initiative for just one cost-effective all-inclusive fee.”

About Softbox

Softbox is a temperature control packaging company that design and produces high performance passive temperature control packaging solutions.  The company has manufacturing sites throughout Europe, North America, Latin America and Asia Pacific.

The company has partnerships with pharmaceutical, clinical research, biotech and logistics companies, and works with clients to manage the Cold Chain when shipping temperature sensitive clinical trial and commercialized products.