Packaging Waste Disposal Becoming Responsibility of Manufacturers, Retailers

This figure only highlights the provinces and territories with EPR mandates for packaging and paper products; many of these programs, like Ontario, also formally include single-use products like straws and plates as well. Many provinces and territories also operate additional EPR programs for other product categories. While similar in structure, each program has differences, such as the exemptions available for producers, and the definitions of the covered products and producers.

What is the Blue Box Program? How does it operate?

Until 2023, the responsibility for operating Ontario’s recycling systems was shared between industry and municipalities. Industry covered half the cost of collection and processing, while municipalities provided those services in addition to shouldering the other half of costs. But in 2016, Ontario’s Resource Recovery and Circular Economy Act directed the province to move towards an EPR model for managing consumer recycling, where industry must not only fund but also oversee the management of collecting and processing recyclables in Ontario.[5] The provincial recycling industry is therefore in the middle of a transitional period; the new framework must be fully implemented by December 31, 2025.

In practice, companies meet the required management obligations by joining Producer Responsibility Organizations (“PROs”), which are discussed further below. Using the funding provided by their members, PROs operate recycling systems in compliance with the Blue Box Regulation mandates.

What materials are covered by Ontario’s Blue Box Regulation?

The regulatory framework governs the management of “blue box material,” which is comprised of “blue box packaging,” paper products, and any packaging-like products.[6] So-called blue box packaging includes primary packaging, convenience packaging (such as disposable bags), and transport packaging that is provided with a product to reach the consumer. Business to business packaging is not included. The definition also includes products, such as straws, cutlery, or plates, that are provided with food or beverages to facilitate their consumption. Packaging-like products include components like plastic wrap, wrapping paper, cardboard boxes or envelopes in which an item can be handled or transported and that are ordinarily disposed of after a single use.[7]

While a broad set of potential packaging is covered by this regulation, blue box material only includes materials that are primarily made from paper, glass, metal, plastic, or a combination of these materials; other carveouts addressing, for example, materials that would be hazardous or unsanitary to recycle are specified in the regulation.[8] The seven categories of blue box materials are: beverage containers, glass, flexible plastic, rigid plastic, metal, paper, and certified compostable products and packaging.[9]

Who are the “producers” regulated under the Blue Box Regulation?

The Blue Box Regulation operates a tiered system for determining the “producer” who must report and ultimately pay for regulated packaging:

• Brand holders for the paper product, packaging-like product, or the product contained in blue box packaging, if resident in Canada;
• If there is no resident brand holder, then the producer is the company that imported the paper product, packaging-like product, or the product contained in blue box packaging, if that company is resident in Ontario;
• If neither such party exists, the producer is the retailer who supplied the paper product, packaging-like product, or the product contained in blue box packaging to the consumer.[10]

The regulations provide further clarity about the regulated producer under certain circumstances. If the producer under the above hierarchy is the retailer and that retailer contracts with a “marketplace facilitator” to sell their goods, the marketplace facilitator will be the producer.[11] A marketplace facilitator is a person who contracts with a marketplace seller to facilitate the supply of the marketplace seller’s products by: operating an online consumer-facing marketplace where the marketplace seller’s products are listed for sale; and by physically distributing the marketplace seller’s products to the consumer, through storage, preparation, or shipping.[12]

Reporting obligations can turn on whether potential producers are resident in Canada or Ontario. Whether companies have a permanent establishment in Canada or Ontario is based on the factors set out in subsection 400(2) of the Income Tax Regulations, CRC, c 945;[13] a determination that a company is resident in Canada or Ontario carries tax and other potential legal implications as well.

What are producers’ administrative compliance obligations?

The Blue Box Regulation establishes registration and annual reporting requirements.

Under the registration requirements, new producers must register with Ontario’s RPRA within thirty days of supplying blue box materials in Ontario.[14] Producers currently operating in Ontario that have still not registered should do as soon as possible. 

The reporting requirements require producers to annually report the number of tons of each of the seven categories of blue box material that the producer has sold, transferred, or otherwise provided to the Ontario market.[15] The annual reporting requirements also demand additional information that PROs, explained further below, can provide for producers.[16]

How do producers meet the collection and material management obligations?

In addition to the registration and reporting obligations outlined above, producers are also obligated to collect and manage blue box materials, and to educate consumers regarding these services.[17]

In practice, although not mandated by the legislative scheme, most producers comply with these requirements by joining PROs.[18] PROs are businesses that help producers by providing the collection, management, and administrative services required under the Blue Box Regulation. Producers can contract with different PROs for different services.[19] If a producer does not contract with a PRO, the producer must establish and operate its own collection, management, and promotion and education systems for its regulated materials. 

Producers newly entering the Ontario market should consider contacting multiple PROs to determine which provider’s service offerings best fit the company’s needs. The RPRA maintains a list of PROs registered to meet producer obligations under the Blue Box Regulation; there are currently four.[20]

Are there any exceptions?

Exemptions are available to producers based on revenue levels and annual weights of blue box materials.

Producers with less than $2,000,000 in revenue in a calendar year in Ontario are exempt from all requirements for the following two calendar years; such companies must preserve records confirming their gross annual Ontario revenue for five years after the records’ creation.[21]

Producers may also be exempt from performance requirements (such as collection, management, promotion and education requirements) if the weight of supplied material in Ontario reported to the RPRA in the previous year was less than the minimum set out for the material category:[22]

If producers’ annual revenue in Ontario is more than $2,000,000 but the supply weight in all the material categories is less than the tonnage exemption threshold, the producer is only required to register and report under the program; no performance requirements apply.[23] 

How is the regulation enforced?

The Blue Box Regulation is enforced through compliance orders, penalties, and prosecutions. Compliance orders require producers to comply with any directions to remedy non-compliance.[24] Administrative penalties may also be issued to ensure compliance with the Act and, specifically, to ensure that companies cannot derive economic benefit from non-compliance.[25] Eleven compliance orders and two administrative penalties have been issued against companies for violations of the Blue Box Regulation, and all within the past calendar year.[26] Finally, the Act specifies provisions, violations of which are considered crimes under the Criminal Code.[27]

Conclusion

The reconfiguration of the Blue Box Regulation is just one example of how Canadian regulatory authorities are emphasizing waste management issues. As Figure 1 demonstrates, EPR programs for paper and packaging are in-place or soon to be implemented in most Canadian provinces and territories. In Ontario, the Act also grants the government broad authority to issue regulations requiring regulated entities to design products to increase the materials’ recyclability, to eliminate the use of substances in the material, or to take other actions to minimize the waste caused by use of the product.[28] Federally, the government is rolling out a Plastics Registry – which will be the subject of an upcoming newsletter article – that will collect data to reinforce provincial and territorial regulatory efforts to manage plastic waste.[29]

We will continue tracking evolving Canadian regulatory requirements targeting packaging and other single-use goods for our clients and readers. Please contact members of Marten’s Consumer Products Practice, including James Pollack and Isabel Carey if you have questions regarding compliance with Canadian or U.S. EPR laws and reporting obligations.
 

[1] James B. Pollack & Zachary J. Zahner, States Enact Packaging Producer Responsibility Laws, States Enact Packaging Producer Responsibility Laws - Marten Law.

[2] Marten Law is working with several PROs in a number of industries to assist product manufacturers and retailers comply with the various requirements that are being enacted. 

[3] Blue Box, O Reg 391/21.

[4] Resource Productivity & Recovery Authority, Compliance Orders and Administrative Penalties, https://rpra.ca/public-reports/compliance-orders-and-administrative-penalties/.

[5] Resource Recovery and Circular Economy Act, SO 2016, c 12.

[6] Blue Box, O Reg 391/21 at s 2(1).

[7] Blue Box, O Reg 391/21 at s 1(1).

[8] Blue Box, O Reg 391/21 at s 2(2).

[9] Blue Box, O Reg 391/21 at s 3(1).

[10] Blue Box, O Reg 391/21 at s 9(1).

[11] Blue Box, O Reg 391/21 at s 13.

[12] Blue Box, O Reg 391/21 at s 1(1).

[13] See also Blue Box, O Reg 391/21 at s 1(1).

[14] Blue Box, O Reg 391/21 at s 45(2).

[15] Blue Box, O Reg 391/21 at s 51(1). The seven categories are beverage containers, glass, flexible plastic, rigid plastic, metal, paper, and certified compostable products and packaging. Blue Box, O Reg 391/21 at s 3(1).

[16] Blue Box, O Reg 391/21 at s 51.

[17] Blue Box, O Reg 391/21 at ss 19, 38, 69.

[18] Blue Box, O Reg 391/21 at ss 19, 19.1; Resource Productivity & Recovery Authority, Blue Box Producers, https://rpra.ca/programs/blue-box/regulation/producers/.

[19] Resource Productivity & Recovery Authority, Blue Box PROs, https://rpra.ca/programs/blue-box/regulation/pros/.

[20] Resource Productivity & Recovery Authority, Blue Box PROs, https://rpra.ca/programs/blue-box/regulation/pros/.

[21] Blue Box, O Reg 391/21 at s 73.

[22] Blue Box, O Reg 391/21 at ss 19.2, 40(2), 42, 69.

[23] Resource Productivity & Recovery Authority, Blue Box Producers, https://rpra.ca/programs/blue-box/regulation/producers/.

[24] Resource Recovery and Circular Economy Act, SO 2016, c 12, at s 86.

[25] Resource Recovery and Circular Economy Act, SO 2016, c 12, at 89(2).

[26] Resource Productivity & Recovery Authority, Compliance Orders and Administrative Penalties, https://rpra.ca/public-reports/compliance-orders-and-administrative-penalties/.

[27] Resource Recovery and Circular Economy Act, SO 2016, c 12, at s 98.

[28] Resource Recovery and Circular Economy Act, SO 2016, c 12, at s 67(3).

[29] Dep’t of the Environment, Canadian Environmental Protection Act, 1999: Notice with respect to reporting of plastic resins and certain plastic products for the Federal Plastics Registry for 2024, 2025, and 2026, 158 Can. Gazette (Apr. 20, 2024).