As part of the flurry of Chemical Management Plan reporting obligations initiated earlier this year, Environment Canada issued its Notice With Respect to Certain Priority Petroleum Substances on the Domestic Substance List (the “Petroleum Substances Notice”) under the Canadian Management Plan (CMP). The Petroleum Substances Notice targets 70 petroleum substances which have been intended by Environment Canada as potentially warranting a toxic determination and/or other risk management measures. Commonly Reported Uses The Petroleum Substances Notice expressly identifies the following petroleum substance uses for which reporting is anticipated:
- cosmetics and personal care products such as creams, lotions, perfumes, mail polish and shampoo;
- cleaning liquids, gels or sprays;
- detergents and surfactants;
- paints and coatings;
- adhesives and sealants;
- plastics and rubber additives;
- plasticizers, stabilizers, dispersants, binders;
- emulsifying and suspending agents; and
- agricultural adjuvants
Products, but not Manufactured Items Like other CMP notices, the Petroleum Substances Notice applies to first importers into Canada and Canadian manufacturers using any of the priority petroleum substances:
- in mixtures; or
- in products.
The Petroleum Substances Notice does not , however, include “manufactured items”, which are defined in the Canadian Environmental Protection Act (CEPA) as anything:
formed into a specific physical shape or design during manufacture and has, for its final use, a function or functions dependent in whole or in part on its shape or design.
“Products”, in contrast, are defined by default as anything not otherwise designed as a mixture or a “manufactured item”, including items which are manufactured (and imported into Canada). This distinction may be clear as it relates to a baseball bat or a chair, but less so when, for example, electronic devices (of no necessary functional shape or design) are at issue. Petroleum Substances Notice Reporting and Beyond Environment Canada and judicial treatments of CEPA have, to date, offered little guidance as to how to draw this statutory and policy distinction, making CMP reporting under the Petroleum Substances Notice as clear as (contaminated) mud.