(*In order Clockwise from Top Left* Image courtesy of @bryanregan from Getty Images via canva.com, Image courtesy of @pamelasphotopoetry from Getty Images via canva.com, Image courtesy of @Igor Ovsyannykov from Igor Ovsyannykov via canva.com, Image courtesy of @TryMyBest via canva.com, Image courtesy of @Giu from Geo’s Gallery via canva.com, Image courtesy of @AureliaLielie from Getty Images via canva.com, Image courtesy of @Tharakorn arunothai from Tharakorn arunothai via canvca.com, Image courtesy of @akaratwimages via canva.com)
Blog by: Joseph F. Castrilli, Counsel, and Fe de Leon, Senior Researcher, CELA
PFAS chemicals, because they are extremely persistent in the environment, are called “forever chemicals”. It would be ironic – not to mention concerning – if it took forever to develop regulations to control them!
But, with a March 2025 federal government announcement, the potential is there for Canada to take an uncomfortably long time trying to put a strangle hold on the estimated 4,700 PFAS chemicals there may be in Canadian commerce.
The presence of PFAS in Canada is a public health concern, especially for vulnerable populations (i.e., groups of individuals within the Canadian population who, due to greater susceptibility, or greater exposure, may be at increased risk of experiencing adverse health effects from exposure). Reported effects include impacts to liver, kidney, thyroid, immune system, nervous system, metabolism, reproduction, and development. There is also the potential for cancer-causation from some members of the PFAS class already regulated in Canada – like PFOA, deemed carcinogenic to humans, and PFOS, deemed possibly carcinogenic to humans according to the International Agency for Research on Cancer. There is also the further potential for cancer-causation from other members of the class not currently regulated.
While Canada has regulated three subgroups of PFAS for years (PFOS, PFOA, and LC-PFCAs) under the Canadian Environmental Protection Act (CEPA), it has been more difficult for the federal government to get a handle on the remaining thousands of PFAS suspected of being in Canadian commerce.
In 2021, it first announced its intention to investigate PFAS chemicals with a view to their possible designation and regulation as a class of toxic substances under CEPA. A good goal.
However, it’s been almost five years since then and it could be at least five more before we see substantive regulation of any new PFAS chemicals, contaminated products, or contamination pathways.
Delay Caused by Number of Chemicals, Numerous Uses, and Multiple Environmental Pathways
Part of this delay is a function of several converging factors:
- the thousands of chemicals in the class;
- far too many uses of PFAS (e.g., firefighting foams, food packaging, drugs, medical devices, cosmetics, carpets, furniture, clothing, pesticides, vehicles, and electronics), due to their stain, heat, and water-resistant qualities valued by industry; and,
- far too many places the chemicals end up (e.g., air, land, water including the Great Lakes, drinking water, food, humans).
Delay Caused by the Way CEPA is Drafted
Part of this delay is also a function of CEPA as drafted. Under the Act, once a proposal is made to designate a substance as toxic, the federal government has up to two years to bring forward a draft regulation that would propose measures to control or eliminate the substance in Canadian commerce. Then once a draft regulation is proposed the government has a further 18 months to bring the regulation into force. Assuming no other intervening events, like lawsuits, elections, or international trade chaos, Canadians could be looking at the implementation of controls on PFAS by 2030.
Maybe.
As a result of all these factors, the March 2025 federal proposal to designate as toxic PFAS as a class under the Act (except for fluoropolymers, which will need further study), an otherwise welcome development, suggests that Canada going forward will continue to move incrementally, if not glacially, toward implementing controls.
Delay Caused by Proposed Method of Implementation
The government’s strategy is to address PFAS contaminated products in three phases:
- near term (firefighting foam not currently regulated);
- medium term (e.g., cosmetics, non-prescription drugs, food packaging materials, paints, consumer cleaning products, ski waxes); and,
- long term (e.g., prescription drugs, medical devices, industrial sectors like mining and petroleum).
The pace of some of these phases may be viewed by some, if not many, as, well, leisurely. For example, the government’s PFAS technical briefing document released the same week as the proposed designation order starts strong but peters out on how quickly regulation may progress. For phase 1, it states that the consultation document on restricting PFAS not currently regulated in firefighting foam is “anticipated” by the summer/fall of 2025. For phase 2, the technical briefing document states that: “Other risk management consultations are targeted to be launched in 2027”. For phase 3, the technical briefing document says nothing.
For those concerned about, or already experiencing, the baleful effects of “forever chemicals”, noted above, waiting another half-decade or more for action may be existentially unacceptable.
The Little Problem of Under-Regulation
Like a bridge that stubbornly refuses to be crossed, there is also the question of why the government is proposing to place all the PFAS class members slated for designation under CEPA Schedule 1, Part 2, and not the Schedule’s Part 1, considering all chemicals in Schedule 1 meet the CEPA test for being deemed a toxic substance.
Placement of a chemical in Part 1, according to the 2023 amendments to CEPA, is required where the substance:
- may have a long-term harmful effect on the environment and is inherently toxic, persistent, bioaccumulative, and present in the environment due primarily to human activity;
- may constitute a danger in Canada to human life or health and is carcinogenic, mutagenic, toxic to reproduction; or,
- is otherwise found to pose the highest risk.
Substances in Part 1 are eligible for total, partial, or conditional prohibition. Indeed, existing regulated PFAS, like PFOS, have been placed in Part 1.
By a process of elimination, substances in Part 2, would be presumed to have none of the above characteristics. Yet many other PFAS class chemicals appear to have characteristics that should place them in Part 1 as well but are all slated to go to Part 2 under the government’s March 2025 announcement.
Thus, placement of the PFAS class of chemicals in Part 2 appears legally counter-intuitive, if not wholly inconsistent with the government’s final scientific assessment report on PFAS chemicals released the same week as the proposed designation order. The report found, for example, that while a small number of PFAS have been the focus of a majority of studies, there is a growing body of evidence suggesting that concerns identified for these well-studied substances are more broadly applicable to other PFAS than previously believed.
Placement in Part 2, unfortunately, has potentially serious legal and policy consequences; such chemicals are not slated for total, partial, or conditional prohibition. Rather they would primarily be subject to regulation, meaning that they remain in commerce and inevitably the environment.
Indeed, in the ultimate example of under-regulation, even chemicals slated for prohibition have been given exemptions for some continued uses under CEPA. This has been true for PFOS, PFOA, and LC-PFCAs whose exemptions under CEPA regulations allowed continuation of certain uses for years but are expected to be removed in 2025 or 2026.
Another form of potential under-regulation is the silence of the government’s technical briefing document on the fate of PFAS-contaminated pesticides. Likely a matter to be dealt with under the registration provisions of the federal Pest Control Products Act, nonetheless, the briefing document is silent on what the federal government plan is for addressing this problem, and over what timeframe.
Finally, under-regulation can also come in the form of long delayed and less than comprehensive reporting coverage. In this regard, despite the government’s knowledge of problems with the PFAS substances, they have never been the subject of reporting by industry under CEPA’s National Pollutant Release Inventory (NPRI). One cannot imagine a better way for government to remain in the dark and for regulation development to be frustrated than to have failed to employ this data access requirement in relation to PFAS over the last few decades. Fortunately, this problem will be corrected, at least for 163 PFAS chemicals (out of 4,700), with reporting on PFAS substances starting with release and transfer data for 2025.
Conclusion
The march toward comprehensive control of PFAS would appear to be one likely to take quite a while. Let us hope that in this case the law’s delay will not lead to the permanent frustration of justice.
Blog: Slow-Walking Toward Justice on “Forever Chemicals”
(*In order Clockwise from Top Left* Image courtesy of @bryanregan from Getty Images via canva.com, Image courtesy of @pamelasphotopoetry from Getty Images via canva.com, Image courtesy of @Igor Ovsyannykov from Igor Ovsyannykov via canva.com, Image courtesy of @TryMyBest via canva.com, Image courtesy of @Giu from Geo’s Gallery via canva.com, Image courtesy of @AureliaLielie from Getty Images via canva.com, Image courtesy of @Tharakorn arunothai from Tharakorn arunothai via canvca.com, Image courtesy of @akaratwimages via canva.com)
Blog by: Joseph F. Castrilli, Counsel, and Fe de Leon, Senior Researcher, CELA
PFAS chemicals, because they are extremely persistent in the environment, are called “forever chemicals”. It would be ironic – not to mention concerning – if it took forever to develop regulations to control them!
But, with a March 2025 federal government announcement, the potential is there for Canada to take an uncomfortably long time trying to put a strangle hold on the estimated 4,700 PFAS chemicals there may be in Canadian commerce.
The presence of PFAS in Canada is a public health concern, especially for vulnerable populations (i.e., groups of individuals within the Canadian population who, due to greater susceptibility, or greater exposure, may be at increased risk of experiencing adverse health effects from exposure). Reported effects include impacts to liver, kidney, thyroid, immune system, nervous system, metabolism, reproduction, and development. There is also the potential for cancer-causation from some members of the PFAS class already regulated in Canada – like PFOA, deemed carcinogenic to humans, and PFOS, deemed possibly carcinogenic to humans according to the International Agency for Research on Cancer. There is also the further potential for cancer-causation from other members of the class not currently regulated.
While Canada has regulated three subgroups of PFAS for years (PFOS, PFOA, and LC-PFCAs) under the Canadian Environmental Protection Act (CEPA), it has been more difficult for the federal government to get a handle on the remaining thousands of PFAS suspected of being in Canadian commerce.
In 2021, it first announced its intention to investigate PFAS chemicals with a view to their possible designation and regulation as a class of toxic substances under CEPA. A good goal.
However, it’s been almost five years since then and it could be at least five more before we see substantive regulation of any new PFAS chemicals, contaminated products, or contamination pathways.
Delay Caused by Number of Chemicals, Numerous Uses, and Multiple Environmental Pathways
Part of this delay is a function of several converging factors:
Delay Caused by the Way CEPA is Drafted
Part of this delay is also a function of CEPA as drafted. Under the Act, once a proposal is made to designate a substance as toxic, the federal government has up to two years to bring forward a draft regulation that would propose measures to control or eliminate the substance in Canadian commerce. Then once a draft regulation is proposed the government has a further 18 months to bring the regulation into force. Assuming no other intervening events, like lawsuits, elections, or international trade chaos, Canadians could be looking at the implementation of controls on PFAS by 2030.
Maybe.
As a result of all these factors, the March 2025 federal proposal to designate as toxic PFAS as a class under the Act (except for fluoropolymers, which will need further study), an otherwise welcome development, suggests that Canada going forward will continue to move incrementally, if not glacially, toward implementing controls.
Delay Caused by Proposed Method of Implementation
The government’s strategy is to address PFAS contaminated products in three phases:
The pace of some of these phases may be viewed by some, if not many, as, well, leisurely. For example, the government’s PFAS technical briefing document released the same week as the proposed designation order starts strong but peters out on how quickly regulation may progress. For phase 1, it states that the consultation document on restricting PFAS not currently regulated in firefighting foam is “anticipated” by the summer/fall of 2025. For phase 2, the technical briefing document states that: “Other risk management consultations are targeted to be launched in 2027”. For phase 3, the technical briefing document says nothing.
For those concerned about, or already experiencing, the baleful effects of “forever chemicals”, noted above, waiting another half-decade or more for action may be existentially unacceptable.
The Little Problem of Under-Regulation
Like a bridge that stubbornly refuses to be crossed, there is also the question of why the government is proposing to place all the PFAS class members slated for designation under CEPA Schedule 1, Part 2, and not the Schedule’s Part 1, considering all chemicals in Schedule 1 meet the CEPA test for being deemed a toxic substance.
Placement of a chemical in Part 1, according to the 2023 amendments to CEPA, is required where the substance:
Substances in Part 1 are eligible for total, partial, or conditional prohibition. Indeed, existing regulated PFAS, like PFOS, have been placed in Part 1.
By a process of elimination, substances in Part 2, would be presumed to have none of the above characteristics. Yet many other PFAS class chemicals appear to have characteristics that should place them in Part 1 as well but are all slated to go to Part 2 under the government’s March 2025 announcement.
Thus, placement of the PFAS class of chemicals in Part 2 appears legally counter-intuitive, if not wholly inconsistent with the government’s final scientific assessment report on PFAS chemicals released the same week as the proposed designation order. The report found, for example, that while a small number of PFAS have been the focus of a majority of studies, there is a growing body of evidence suggesting that concerns identified for these well-studied substances are more broadly applicable to other PFAS than previously believed.
Placement in Part 2, unfortunately, has potentially serious legal and policy consequences; such chemicals are not slated for total, partial, or conditional prohibition. Rather they would primarily be subject to regulation, meaning that they remain in commerce and inevitably the environment.
Indeed, in the ultimate example of under-regulation, even chemicals slated for prohibition have been given exemptions for some continued uses under CEPA. This has been true for PFOS, PFOA, and LC-PFCAs whose exemptions under CEPA regulations allowed continuation of certain uses for years but are expected to be removed in 2025 or 2026.
Another form of potential under-regulation is the silence of the government’s technical briefing document on the fate of PFAS-contaminated pesticides. Likely a matter to be dealt with under the registration provisions of the federal Pest Control Products Act, nonetheless, the briefing document is silent on what the federal government plan is for addressing this problem, and over what timeframe.
Finally, under-regulation can also come in the form of long delayed and less than comprehensive reporting coverage. In this regard, despite the government’s knowledge of problems with the PFAS substances, they have never been the subject of reporting by industry under CEPA’s National Pollutant Release Inventory (NPRI). One cannot imagine a better way for government to remain in the dark and for regulation development to be frustrated than to have failed to employ this data access requirement in relation to PFAS over the last few decades. Fortunately, this problem will be corrected, at least for 163 PFAS chemicals (out of 4,700), with reporting on PFAS substances starting with release and transfer data for 2025.
Conclusion
The march toward comprehensive control of PFAS would appear to be one likely to take quite a while. Let us hope that in this case the law’s delay will not lead to the permanent frustration of justice.
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