Good morning, Mr. Chair, members of Parliament. It's a pleasure to be here today.
As per our presentation in May, we have two key issues we wish the committee to consider and make recommendations on in your report to Parliament for amendments to the Canadian Environmental Protection Act. I will also outline a few comments on the CSDSL process as it is on the agenda today, and we did mention it in May.
My name is Shannon Coombs and I'm the executive director of the Canadian Consumer Specialty Products Association. However, I am here today representing FPIC, the Formulated Products Industry Coalition.
Our unique industry coalition is a group of 15 trade associations that formed in 2001 when the Food and Drugs Act became subject to CEPA.
FPIC's member companies provide food, personal care products, household cleaners, cosmetics, medical devices, and pharmaceuticals to Canadians. Collectively we represent over 750 member companies and we comprise a $66 billion a year industry and employ 375,000 Canadians.
Why are we here today? Why are substances in the Food and Drugs Act subject to products captured under CEPA?
CEPA is the legislation that governs new and existing substances in Canada. In 1999 parliamentarians requested that CEPA be the safety net for all environmental assessments, and that assessment also includes a health assessment of substances.
In section 81 of the act there is a requirement for other acts that have pre-market assessments to meet or exceed CEPA. Other acts had two years to meet that requirement, and if they did, they were scheduled for exemption under CEPA. If they did not meet the requirement, then CEPA would be the act to govern environmental assessments. Other acts, such as the Seeds Act, the Fertilizers Act, and the Pest Control Products Act, met CEPA's requirements and were scheduled for exemption. The Food and Drugs Act did not meet those requirements, and therefore environmental assessments for substances in Food and Drugs Act products were subject to CEPA's regulations, the new substances notification regulation, the NSNR.
We have been working under this regime for the past five years and believe CEPA is the most appropriate legislative authority for these substances. However, when the Food and Drugs Act substances were captured under CEPA, it left in limbo a list of approximately 9,000 substances that have been used safely and effectively by Canadians for almost 20 years. These substances are in limbo because they are considered new, not existing under the act, and this needs to be remedied. I will refer to 9,000-plus substances as the in-commerce list.
Since most of our member companies have never been subject to anything other than rigorous pre-market assessment and/or notifications under the Food and Drugs Act, being subject to CEPA was new and challenging. Despite the learning curve, FPIC has recognized that CEPA's systems and regulations provide predictable, rigorous submission reviews to member companies and protection to Canadians and their environment.
FPIC is requesting that the committee consider this key recommendation for improving and adding clarity to the act, which only Parliament, you, can provide. It is as follows: acknowledge the in-commerce list as a list of existing substances under the law by creating a provision in CEPA to recognize them as such.
You might be asking yourself what is on the in-commerce list. It's quite a range of substances. There are pharmaceutical actives, cosmetic ingredients such as extracts. There are surfactants, food colourings, flavourings, kiwi essence, and oil of lemon, just to name a few.
Why do we want them treated as existing? The substances and the products have and continue to provide benefits to Canadians. These substances have been in commerce for almost 20 years, and clearly they're new, not existing, and this makes sense. To ensure there is a mechanism for the in-commerce list to be treated as existing, such as those on the domestic substances have been treated, we're suggesting that the government categorize, prioritize, or whatever word you'd like to use, the in-commerce list and then, if needed, provide a screening level risk assessment.
At the meetings in May there was a session where officials provided an overview of the categorization and screening of the domestic substances list, plus there were comments made on this initiative last week.
We believe that assessing and processing all existing substances the same makes sense. We recommend that parliamentarians recommend to the government in their report that substances in the Food and Drugs Act products be ensconced in the legislation by modifying section 66 of the bill. This would outline the parameters of the in-commerce list. We'd also seek an amendment to sections 73 and 74 to ensure there is a post-categorization process as well as a form to have appropriate risk assessments conducted, and then we'd also like to see section 81 amended, which is very important, so that all substances in the Food and Drugs Act products are formally subject to CEPA's NSNs, the new substances notification assessments regulations.
FPIC did provide a brief yesterday to committee on the key areas where we'd like to have the in-commerce list addressed in the legislation, and we do note that the list is not inclusive, and we're willing to work with all partners to ensure that the list is as fulsome as possible.
I'd like to turn to our second issue and recommendation request to the committee, and that is the issue and meaning of the term “toxic” in CEPA.
FPIC requests that the committee considers removing the term “toxic” from the legislation so that there is clarity and understanding with respect to how substances are assessed and managed under the act. If the risk assessment of the substance meets that definition, it is placed on schedule 1, and then some type of management for that particular use will often be invoked. As stated in our submission, the challenge is the misunderstanding around the term “toxic”.
It is our belief that Canadians, regulators, and non-governmental organizations interpret CEPA's toxic substances as being intrinsically toxic, i.e., poisonous and/or lethal. There are examples that cause confusion. CFCs destroy atmospheric ozone. They're toxic to the environment, but they're not toxic to humans, which is why they have been used in the past in asthma inhalers. Ammonia, which is a substance that was debated last week, is only CEPA toxic in the environment from ammonia traces found in waste water effluent. This substance is used in numerous other applications, such as fertilizer and glass cleaner. These products have subsequently become targets, because of the listing and because of misinterpretation. Carbon dioxide is also on schedule 1 so that greenhouse gases can be managed, but it's not intrinsically toxic as we all exhale this gas and plants rely on it for photosynthesis.
I will provide two examples of where the term “CEPA toxic” is being misinterpreted.
One is from an NGO group that has all schedule 1 substances listed on a website, along with the interpretation of products that the substances would be in and how they should be avoided. The first on the list is ammonia. It clearly says that it is CEPA toxic, that it's used in glass cleaner, and that you should not use these products.
The second is from the B.C. Buildings Corporation, which has a cleaning management chemical content standard; it's a procurement criterion. It states clearly in section 6 of that document that all substances on schedule 1 are not to be used in any products. This means that ammonia and other substances are stigmatized. There's no relation to the risk assessment that was completed and the use and the risk that's being managed.
Clearly, the prevailing challenge before us all is that the term “toxic” in CEPA is misunderstood, so actions that are not warranted are taken. From my examples, groups and regulators target products that may contain the substance, apply the label “CEPA toxic” to all uses of the substance, and alert Canadians to a risk that's not a risk.
We are recommending that the committee consider removing the word “toxic” from the legislation and include the wording suggested in the last budget bill, Bill C-43, part 15, where in section 64 the definition of “toxic” remains; however, the title is “Assessment and Management of Substances”. This accurately reflects what CEPA does and would assist with the government's challenge of adding substances to schedule 1. It would put them in context, i.e., the use of a substance, the risk assessment, the results of that assessment, and how they are being managed. We believe that if the term “toxic” is removed, it would provide clarity and enhance the credibility of the act.
With respect to the issues raised about the constitutionality of changing the word “toxic”, which has been raised by other witnesses, we would assert that this issue and validity of the revisions for CEPA would have been thoroughly discussed and addressed by Department of Justice lawyers prior to part 15 being added to the last budget bill and presented to Parliament.
In our experience, legislation from this Parliament is respected and upheld, but it needs to be flexible and responsive to unintended consequences. I'm sure that's why parliamentarians in their wisdom decided on a five-year review of this act--which is why we're here today--which has also set a precedent to include review periods for other acts. I don't believe our legislators would have known about the stigmatization issue and the unforeseen challenges arising from the listing process in section 64 when they included the word “toxic” in the legislation .
I would like to turn my comments to our final issue, and that is the categorization and screening of the domestic substances list. At our meeting in May, when the question about whether there is anything that can be done better regarding CEPA was posed to witnesses, we replied that there is always room for improvement.
CEPA is a huge piece of legislation. Our key concern at the time, and which currently remains, was that we need to increase the communication about the successes of this act and how it provides protection for Canadians. We believe a proactive communication strategy would be in everyone's best interest, especially around the results of categorization. Why? The CSDSL program mandated under CEPA 1999 is a made-in-Canada program. While other OECD countries have similar programs, Canada is in the lead. There have been 23,000 substances reviewed against criteria to determine safety for humans and the environment. The diversity of the substances on that list includes everything from industrial chemicals, gasoline, water, vitamins, sugar, etc. It's a very comprehensive list. Results of the program have provided government with priorities for further review, if warranted; and products and their ingredients are safe when used according to the product's directions.
While the results of the program have yet to be made public with an action plan from Ministers Ambrose and Clement, CCSPA would challenge the government that the list of potentially 4,000 substances that met specific scientific criteria needs to be put in context and communicated properly to Canadians.
We were most pleased to hear from the witnesses last week that they have been involved in the process, but they have been quoted consistently in our national newspapers as characterizing the list as the “baddies of the bad” and the “worst of the worst”. We're sure that everyone has seen the last publicly available list of substances provided to all interested parties in July of this year. The 4,000 substances may include such substances as tamoxifen, which is a life-saving cancer drug. Those also include titanium oxide, a key ingredient in sunscreen, which prevents cancer; vinegar; almond flavouring; and vitamin A, just to name a few.
Instead of scaring Canadians or not advising them about the facts, we should be telling them about the enormous work the government has undertaken and its plans to address any future concerns with all stakeholders, and most importantly, put into context what the list really means to Canadians. We need some true risk-benefit communications.
We would ask that you consider our two key recommendations: remove the word “toxic”; and add provisions to ensure that the ICL, or in-commerce list, is treated as “existing” during your deliberations. Our collective priority is to ensure the protection of Canadians and our environment.