By: Cameron Smith 

The Canadian Environmental Protection Act, 1999  (“CEPA”) is currently under scrutiny. And while the Government’s response to a recent report by the House of Commons Committee on Environment and Sustainable Development is not expected until the spring, many groups and experts are hoping for a major overhaul of the Act as it is currently failing to protect the health of Canadian citizens and the Canadian environment.

The example of one harmful substance, triclosan, exemplifies the failings of the Act and the wide discretion of the regulators in implementing it.  Triclosan is a substance found primarily in soaps and other personal hygiene products, but also in wide variety of other consumer products such as clothing and toys. In 2012, the Canadian government began its research into whether triclosan is safe for consumer use in Canada. The first step in the CEPA review process concerning potentially toxic substances is determining if the substance will have harmful effects on the environment or may constitute a danger to human health in Canada; meeting either criterion is sufficient for the substance to be classified as “toxic”. After conducting the required risk assessment, the government found that triclosan meets the definition of toxic in the Act. This is not surprising given that triclosan was found to kill aquatic life upon exposure, along with a plethora of other concerning potential health effects.

It is in the next stage of review where the Act’s shortcomings are most obvious. At this stage, the government is given several options on how to address the toxic substance. In the case of triclosan, the government decided to add the substance to Schedule 1 (the List of Toxic Substances), which allows them to regulate the substance using the tools provided in the Act. However, the government is not required (nor are they planning) to reduce the exposures to triclosan for Canadians or the environment. This is because the goal of “virtual elimination” is only required in cases where specific persistence and bioaccumulation standards, set by the government, are met. In Canada, these standards are set much higher than they are in other jurisdictions, (see appendix B in hyperlinked document for comparison chart). According to the Draft Federal Environmental Quality Guidelines produced by the government, “triclosan… does not meet the persistence criteria … however, it is continuously present in the environment”; and “[Although] triclosan accumulates in organisms to levels that can cause adverse effects … it does not meet the bioaccumulation criteria”.  Therefore, even though triclosan is continuously present in the environment and accumulates to levels that cause adverse effects on aquatic life, common sense is trumped as it does not meet the regulatory requirements to be a candidate for virtual elimination nor for any mandatory regulations that would prevent or restrict its use and release.

Unsurprisingly, the government’s original proposal to manage the risks posed by triclosan included no mandatory reductions; instead they plan to require companies who use the substance to make ‘pollution prevention plans’ to voluntarily reduce their use. The actual details of the Government’s full triclosan management plan are not due for release until November 2018, after another year of triclosan wreaking havoc on Canadian waterways and potentially the health of Canadians themselves.

To add insult to injury, Canada’s environmental protections are lagging behind those of our peers on the international stage. The European Union, a jurisdiction devoted to the precautionary principle, instituted a partial ban on triclosan with a plan for safe substitution in the coming years. Perhaps more surprisingly, the United States Food and Drug Administration asked companies to prove that triclosan is safe for long-term use and that it is more effective than regular soap and water in preventing illness and preventing the spread of infections. In other words, they put the burden of proving triclosan is safe on those wishing to profit from the use and release of the substance. The industry could not substantiate either assertion, leading to a partial ban by the US FDA, with the state of Minnesota independently restricting the product even more stringently. Why then do Canadians not deserve the same protections as our peers?

The problem lies in the Canadian Environmental Protection Act, 1999, particularly the lack of mandatory regulatory controls that follow a finding of “toxic”. This problem is particularly visible in the triclosan case. In the original risk assessment, triclosan was classified a possible “endocrine disruptor”, effectively impacting hormone signaling and other biological processes in animals, and was even found to cause liver cancer in mice. Despite these findings, the evidence was still not judged to be sufficient to prove conclusively that triclosan constituted a threat to human health. The legal burden of proof and the high bar of scientific certainty overcame the precautionary approach in this case exemplifying just how high a standard is required for taking decisive action against a threatening toxic under our Act. Luckily the environmental effects were incontestable, and toxic status was given to the substance. Given the particular difficultly in gaining recognition as a toxic substance there is no need to overcome the additional layers of scientifically outdated hurdles in place to qualify for virtual elimination – this simply afflicts the Canadian public with years of waiting while being exposed to potentially harmful chemicals. Triclosan has proven itself a threat to Canadian’s health and the environment. Other country’s regulatory systems have recognized this. When will ours?

Cameron Smith is a second-year law student at Osgoode Hall Law School.