Backgrounder

Introduced in February 2022, Bill S-5, Strengthening Environmental Protection for a Healthier Canada Act, received Royal Assent on June 13. The Bill modernizes the Canadian Environmental Protection Act, 1999 (CEPA) and represents the first set of comprehensive amendments to CEPA since it was enacted over 20 years ago.

With this Bill, the Government of Canada is delivering on its commitment to strengthen CEPA and recognize, for the first time in federal law, that every individual in Canada has a right to a healthy environment.

A summary of the amendments included in Bill S-5 are outlined below.

A right to a healthy environment

Bill S-5 requires that decisions made under CEPA respect the right to a healthy environment.

Over the next two years, the Government will develop an implementation framework to set out how that right will be considered in administering the Act. That framework will explain how the right will account for principles such as environmental justice, intergenerational equity, and non-regression. It will also describe any other relevant factors to consider in interpreting and applying the right and determining its reasonable limits.

• Environmental justice includes the avoidance of adverse effects that disproportionately affect vulnerable populations.
• Non-regression includes the continuous improvement in environmental protection.
• Intergenerational equity includes the importance to meet the needs of the present generation without compromising the ability of future generations to meet their own needs.

The framework will be developed in consultation with interested Canadians. The ministers of Environment and Climate Change and of Health will report on the implementation framework annually. The framework will also enable continuous improvement in light of experience and as views evolve.

The amendments also require that research, studies, or monitoring activities be conducted to support the Government in protecting the right.

The amendments also confirm the Government’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples and incent action on reconciliation through a requirement to report annually on consultations, findings, recommendations, or measures taken in that regard.

Protecting vulnerable populations

Implementation of the right to a healthy environment under CEPA will include work to identify populations that may be disproportionately impacted due to greater susceptibility or higher exposure to environmental and health risks, leading to more informed and protective environmental and health standards.

The amendments also expressly require the Government to administer the Act in ways that minimize risks to the health of vulnerable populations.

In subsection 3(1) of the Act, the amendments define a vulnerable population as “a group of individuals within the Canadian population who, due to greater susceptibility or greater exposure, may be at an increased risk of experiencing adverse health effects from exposure to substances.” These populations may include pregnant people, children, people in poor health, workers, and those living in areas where levels of pollution are particularly high.

To better protect people who are more susceptible or highly exposed to harmful substances, changes to CEPA provide that the Government has a duty under the Act to protect the environment and the health of all Canadians, including vulnerable populations. The changes also require the ministers of Environment and Climate Change and of Health to consider available information regarding vulnerable populations and vulnerable environments in risk assessments. To maximize the availability of that information, the amendments require the Government to conduct research and studies, including biomonitoring surveys, specifically in relation to the role of substances in illnesses or in health problems, which may relate to vulnerable populations. The amendments also enable geographically targeted regulations to better support the protection of communities at risk from local sources of pollution.

Assessing real-life exposures

In Canada and elsewhere, the general approach has been to assess substances for risks in isolation. However, Canadians and the environment are exposed to multiple substances from many different sources often at the same time and over a lifetime.

Recognizing that the science of assessing cumulative effects is still evolving, amendments to CEPA require that the Ministers of Environment and Climate Change and of Health consider available information about the cumulative effects on the environment and health that may result from exposure to a substance in combination with exposure to other substances when conducting and interpreting the results of risk assessments.

A new Plan of Chemicals Management Priorities

The Government will develop a new Plan of Chemicals Management Priorities to assess and better understand and protect Canadians and the environment from chemicals of concern.

In 1999, CEPA required prioritization of the 23,000 substances already in commerce in Canada based on specific criteria related to their bioaccumulation, persistence, inherent toxicity, and the greatest potential for exposure. This process identified approximately 4,300 chemicals as priorities that met one or more of these criteria. The resulting process to assess these substances has largely been completed.

With new chemicals being developed, new uses for existing chemicals, increasingly complex supply chains, and emerging science about risks including cumulative effects, the CEPA amendments require the Government to establish a new plan to prioritize the ongoing assessment of risks from chemicals. This plan will include timelines, a strategy to reduce reliance on vertebrate animal testing, consider class-based assessment approaches as a means of avoiding regrettable substitutions, as well as labelling and other means to provide meaningful information to the public. The amendments also require that this plan be reviewed at least every eight years.

Supporting the shift to safer chemicals

To support the shift to safer chemicals, the Government recognizes that it is important to encourage the use of product designs, processes, and chemicals that are safe for the environment and human health.

In addition to changes to risk assessment and risk management activities, CEPA amendments require the Minister of Environment and Climate Change to maintain a Watch List—a list of substances that can pose a risk and thereby meet the criteria in Section 64 of CEPA if, for example, uses change or exposure increases. The Watch List will help importers, manufacturers, and Canadian consumers to select safer alternatives and avoid regrettable substitutions—replacing one problem chemical with another that, in turn, becomes a problem.

Increased transparency in decision-making

The amendments to CEPA allow Canadians to request that a chemical be assessed and require the Ministers of Environment and Climate Change and of Health to consider and respond to any such requests.

The amendments also require that the Government communicate anticipated timelines for completing risk assessments and for proposing subsequent risk management actions when a substance is found to meet the criteria to require risk management.

Industry will also be required to provide a rationale to support requests for the confidentiality of business information, and the Ministers will be required to review and validate a statistically representative sample of these requests and report on the results. In addition, the amendments establish the circumstances under which the Ministers may disclose the explicit names of masked substances or living organisms.

A stronger regime for toxic substances that pose the highest risk

Amendments to CEPA create a stronger regime for controlling the subset of toxic substances that pose the highest risk to human health or the environment.

For substances that are determined to be toxic under CEPA and that meet the new additional criteria of posing the highest risk, the amendments to CEPA require that the Minister of Environment and Climate Change and the Minister of Health give priority to prohibiting activities involving these substances. The criteria for these substances will be set out in regulations and will include persistence, bioaccumulation, carcinogenicity, mutagenicity, and reproductive toxicity. These regulations will be developed in consultation with stakeholders.

Giving priority to prohibition can lead to different scenarios: the substances can be phased out entirely; activities or releases of concern can be prohibited; or all new uses can be prohibited, unless it can be demonstrated that there are no safer alternatives, and the use can be undertaken safely.

To reflect this new approach, Schedule 1 is divided into two parts. Part 1 contains toxic substances that pose the highest risk, for which CEPA will prioritize the prohibition of activities and releases of concern. Part 2 contains all other CEPA-toxic substances.

These amendments maintain the fundamental risk-based approach under CEPA, which ensures that the Government focuses on the risks posed by substances based on their inherent characteristics and their actual or potential releases and exposures.

Risk assessments of new living organisms under Part 6 of the Act

Amendments to CEPA require the Ministers of Environment and Climate Change and of Health to consult interested persons when assessing new living organisms that are vertebrate animals or otherwise prescribed by regulation.

Reducing reliance on animal testing

Amendments to CEPA recognize the global effort to reduce reliance on the use of vertebrate animal testing when assessing the risks from substances. These amendments require the Government to support the development and use of scientifically justified alternative methods and strategies to replace, reduce, or refine the use of vertebrate animals in toxicity testing.

Changes to the Food and Drugs Act to strengthen the environmental risk assessment and risk management of drugs

Amendments to the Food and Drugs Act expand the Minister of Health's ability to manage environmental risks resulting from drugs, and also provides the Minister the ability to develop modernized environmental risk assessment and risk management regulations for drugs under the Food and Drugs Act.

Moving forward

The Government of Canada will get to work on implementing the modernized Act. Implementation work will include engaging Canadians in developing an implementation framework on the right to a healthy environment under CEPA and a Plan of Chemicals Management Priorities.

The Government will also continue to review other potential changes to CEPA to ensure that it continues to provide an effective legal foundation for protecting the environment and human health.

“Since 1998, Parliamentarians have led the way to ensure that the Canadian Environmental Protection Act is modern and progressive. With the passage of Bill S-5, Canada continues to lead the world with ensuring we have a science-based, progressive, foundational legislative framework for all substances, air, and water quality. The Canadian Consumer Specialty Products Association is a proud contributor to this work, and we look forward to a continued dialogue with the federal government and all stakeholders on this important legislation.” – Shannon Coombs, President, Canadian Consumer Specialty Products Association

“After more than a decade of advocacy, Canada’s cornerstone toxics law will soon have new transparency and accountability tools to better protect us from hazardous substances. From poor air quality to tailings leaks to plastic pollution, Canada needs to prevent harm caused by dirty industries wherever possible. This new strengthened CEPA is a vital step toward achieving a healthier future.” – Cassie Barker, Senior Program Manager, Toxics, Environmental Defence

“The Chemistry Industry Association of Canada is glad to see that CEPA 2023 preserves the risk- and science-based approach at the heart of the Act, which has earned Canada a reputation of having a world-class Chemicals Management Plan. CEPA 2023 will enable our industry to continue introducing innovative chemistries that create solutions to some of the most complex societal issues. In keeping with our Responsible Care® ESG initiative, the Chemistry Industry Association of Canada will remain a strong partner to the Chemicals Management Plan as it enters this next phase, ensuring Canadians can remain confident that health, safety, and protection of the environment are always top of mind in the products they use.” – Bob Masterson, President and Chief Executive Officer, Chemistry Industry Association of Canada

“This is a crucial moment for Canada, as it joins a majority of countries worldwide and has legislated for the right to a healthy environment for the first time in federal law. Bill S-5 marks an important milestone for greater protection against dangerous pollution and toxic chemicals that can bring environmental justice to marginalized and vulnerable communities throughout Canada.” – Dr. Elaine MacDonald, Healthy Communities Program Director, Ecojustice

“The passage of Bill S-5 is the culmination of work by so many groups and citizens across Quebec and Canada for a stronger Canadian Environmental Protection Act. The Bill represents an important move forward with the inclusion of the right to a healthy environment in federal law, and much-needed requirements on chemical regulations to reign in the widespread use of toxic substances. The next steps are equally important as the government moves forward with the new Bill as there are important new tools to be developed for its implementation in order to truly protect the health of all people in Canada.” – Jennifer Beeman, Executive Director, Breast Cancer Action Quebec

“The passage of Bill S-5 today brings long-awaited reforms to the Canadian Environmental Protection Act (CEPA), and this is good news for environmental and human health, and environmental justice. Whether it’s asthma, cancer, or reproductive issues, health professionals manage patients who are suffering the negative health effects of polluted environments every day. The Canadian Association of Physicians for the Environment joins in celebrating Canada’s first law recognizing the right to a healthy environment and updates to the CEPA framework for toxic substances.” – Dr. Melissa Lem, Board President, the Canadian Association of Physicians for the Environment and Family Physician

“With the passage of Bill S-5, the Canadian Environmental Protection Act becomes the first Canadian law to recognize the right to a healthy environment. This landmark development is a testament to the many passionate people who have tirelessly advocated for environmental rights over the past decade. Now the work begins to protect that right and uphold the principle of environmental justice.” – Lisa Gue, National Policy Manager, David Suzuki Foundation

“We are happy to see the passage of Bill S-5 with provisions to phase out chemical testing using animals. A concerted move away from animal-based toxicity tests could spare tens of thousands of animals each year and advance public health and environmental protection with more advanced and relevant tests for the benefit of all Canadians.” – Shaarika Sarasija, Senior Strategist, Research and Regulatory Science for the Humane Society International/Canada

“Bill S-5 is a game changer when it comes to the use of animals in painful toxicity testing, which is done to assess the risks posed by chemicals. Toxicity testing is the most harmful and painful use of animals in scientific research, and through Bill S-5, Canada joins jurisdictions like the US and EU which have already created strong legal tools to phase out these cruel experiments and promote the development of animal-free alternatives.” – Kaitlyn Michell, Director of Legal Advocacy, Animal Justice

“This is a watershed moment—history has been made in the on-going efforts to end animal suffering and make Canada a more humane country. Hundreds of thousands of animals are used each year to test the safety of different harmful substances. This new law will rapidly accelerate replacement of this painful practice with non-animal methods that are not only cruelty-free, but cheaper, more efficient, and more predictive of impacts on humans.” – Dr. Toolika Rastogi, Humane Canada

“It is incredible to see Canada's much-needed transformation toward modernizing toxicity testing. With this landmark legislation, Canada now stands on the cusp of transformation, ready to leap forward into a new era of research and innovation. I hope that the Government of Canada will now invest in this field to pave the way for a healthier Canada by prioritizing animal replacement to achieve the government's vision of ending toxicity testing by 2035. The world is witnessing a global shift, embracing a versatile toolbox full of 21st century technologies, like organ-on-a-chip, 3D bioprinted tissue, and computational models to emulate human biology in a petri dish—instead of antiquated animal methods—and Canada can now be a proud player in the global arena.” – Charu Chandrasekera, Executive Director, the Canadian Centre for Alternatives to Animal Methods

Credits to Environment and Climate Change Canada
canada.ca