Emerging contaminants update: Government of Canada publishes draft State of PFAS Report

On May 20, 2023, Environment and Climate Change Canada and Health Canada published a draft State of PFAS Report and Risk Management Scope following a two-year assessment of the fate, sources, occurrence, and potential impacts of per- and polyfluoroalkyl substances (PFAS) on the environment and human health in Canada.

What are PFAS?

PFAS are a class of over 4,700 substances that have a wide range of applications. Common uses of PFAS include surfactants, lubricants, and repellents (for dirt, water, and grease). PFAS can also be found in certain firefighting foams, textiles, cosmetics, non-stick foodware and in food packaging materials.

Environmental and human health effects 

The draft State of PFAS Report identifies health and ecological effects associated with PFAS exposure. Certain well-studied PFAS have been found to adversely affect the liver, kidney, thyroid, immune system, metabolism, reproduction, and development in both humans and wildlife. 

The report identifies subpopulations that may be more susceptible or highly exposed to PFAS, including northern Indigenous communities, firefighters, and individuals living near contaminated sites, including those associated with the use of firefighting foams.

Existing PFAS regulation

Currently, only a limited number of PFAS subgroups are subject to regulation in Canada. Perfluorooctane sulfonate, its salts and its precursors (PFOS), perfluorooctanoic acid, its salts and its precursors (PFOA), and long-chain perfluorocarboxylic acids, their salts and their precursors (LC-PFCA), have been assessed and added to the List of Toxic Substances under Schedule 1 of the Canadian Environmental Protection Act, 1999 (CEPA).¹  

Since 2016, the manufacture, use, sale, offer for sale or import of PFOS, PFOA, LC-PFCAs, and products that contain them have been prohibited, with a limited number of exemptions under the Prohibition of Certain Toxic Substances Regulations, 2012.² In May 2022, the federal government published a proposed new Prohibition of Certain Toxic Substances Regulations, 2022, which would repeal and replace the Prohibition of Certain Toxic Substances Regulations, 2012 and eliminate most exemptions allowing the use, sale, or import of PFOS, PFOA and LC-PFCAs in Canada.

State of PFAS conclusions and recommendations

The draft State of PFAS Report concludes that the class of PFAS meets one or more criteria for toxicity set out in section 64 of CEPA.³ The minister of the environment and the minister of health have proposed to recommend that the class of PFAS be added to the List of Toxic Substances under Schedule 1 of CEPA. If the class of PFAS is added to Schedule 1 under CEPA, stakeholders can expect to see forthcoming restrictions on their use, manufacture and sale in Canada. 

Stakeholders are invited to submit comments on the content of the draft State of PFAS Report and Risk Management Scope prior to July 19, 2023. If the final State of PFAS Report confirms that the class of PFAS is toxic, a Risk Management Approach document outlining and seeking input on proposed risk management instruments will be published concurrently with the final State of PFAS Report.

In addition, the federal government is planning to issue a notice under section 71 of CEPA to collect additional information regarding PFAS. Once the notice is issued, any person or company in possession of information that reasonably supports the conclusion that the class of PFAS it toxic or capable of becoming toxic, and is involved in activities with PFAS, is obligated to provide that information to the minister of the environment.

Proposed timing of PFAS regulatory action:

• Consultation on the draft State of PFAS Report and Risk Management Scope: May 20, 2023, to July 19, 2023. 
• Publication of the CEPA section 71 notice or other data collection initiative: fall 2023.
• Publication of responses to public comments on the draft State of PFAS Report and Risk Management Scope: concurrent with the publication of the final State of PFAS Report and, if required, risk management approach. 
• Publication of responses to public comments on the risk management approach, if applicable and if required, a proposed instrument: At the latest, 24 months from the date on which the ministers publish a recommendation that the class of PFAS be added to Schedule 1 under CEPA.
• Consultation on a proposed instrument, if required: 60-day public comment period  starting upon publication of a proposed instrument.
• Publication of a final instrument, if required: At the latest, 18 months from the  publication of a proposed instrument.