© 2009

Evolving Product Stewardship Laws and

Policies in the Americas Jennifer Mesquita, Gowling Lafleur Henderson LLP - Toronto

Fernando Tabet, Tabet Advogados - Brasil

Extended Producer Responsibility

• EPR programs and policies impose the economic costs of a product’s life-cycle impacts on the producer of that product

• Example is the cost of managing a product’s end-of-life costs, whether related to disposal or recycling

• In Canada, waste management and recycling costs have historically been borne by local governments

• Landfill capacity is decreasing, it is difficult to locate new landfills, and waste disposal costs are increasing

Montréal | Ottawa | Toronto | Hamilton | Waterloo Region | Calgary | Vancouver | Moscow | London

Extended Producer Responsibility & Waste Diversion Programs in Canada

Extended Producer Responsibility

• Municipalities are seeking to divert waste from landfill

• EPR programs are driven by the desire to cost-share the municipal costs associated with diversion, recycling or landfill

• The policy goal is to encourage product design changes at the development stage when changes are most efficient

– Reduced packaging, and reduced toxics content

– Increased ability to recycle products

– Reduced waste generation

Waste Diversion in Ontario

• Ontario will be used to illustrate evolution of EPR• Waste Diversion Act allows the Minister of Environment to

designate material for diversion • Once a material is designated, the Minister requests a Program

Plan for review and approval• Waste diversion programs are prepared and administered by

Industry Funding Organizations• Membership of the IFO is drawn from potential “Stewards”,

those who will be obligated to report and pay fees

Waste Diversion in Ontario

• Current Waste Diversion Act programs include:

– Blue Box Program

– Waste Electrical and Electronic Equipment Program (“E-Waste” or “WEEE”)

– Municipal Hazardous or Special Waste Program

– Used Tire Program

Blue Box Program Plan

• Covers branded packaging material and printed paper – Paper can include newspaper, flyers,

coupons, materials sent by mail– Packing includes: cardboard, plastic,

steel and metal, glass

• Destined for residential waste stream

Blue Box Program Plan

• Launched Feb. 1, 2004 – covers 50% of municipal Blue Box program costs

• Stewards are Brand Owners, First Importers, Franchisors

• Report and pay fees to Stewardship Ontario

• De Minimis Exemptions:– < 15 tonnes of waste

– Gross revenues <$2 million

Blue Box Program Plan

• Report covers previous calendar year (after 2006)

• Quarterly Payment Schedule:– April 30

– June 30– September 30 – December 1

Enforcement of Diversion Programs

• Penalty for late filing is <10% of outstanding fees

• Interest is prime + 3% on outstanding fees

• Compliance managed internally

• Non-compliance can lead to charges

– <$20,000 per day / individual

– <$100,000 per day / corporation

• MOE leads enforcement if compliance efforts fail

• Launched April 1, 2009

• Stewards are Brand Owners, First Importers, Franchisors, Assemblers of non-branded WEEE

• Covers 100% of Ontario’s costs of managing waste

• No threshold-based exemptions

• Only exemption is lack of “commercial connection”

Waste Electrical & Electronic Equipment

Waste Electrical & Electronic Equipment• Phase I covers:

– Desktops, laptops

– Monitors & TVs

– Desktop printers & faxes

– Mice / keyboards / drives

• Supplied in Ontario

– not limited to residential waste stream – also covers industrial, commercial and institutional supply

EEE Materials Includes Fee Rate

Desktop Computers CPU, Computer terminal $13.44/unit

Portable Computers Laptop, Notebook $2.14/unit

Computer Peripherals Disk drive, Keyboard, Mouse $0.32/unit

Monitors CRT, LCD, Plasma $12.03/unit

Televisions CRT, LCD, Plasma, Rear Projection $10.07/unit

Printing Devices Printer, Fax machine $5.05/unit

Waste Electrical & Electronic Equipment

Waste Electrical & Electronic Equipment• Stewards may pass the fee on to

customers

• Fees are fixed for 1 year

• Reports and fees due on a monthly basis

• Submitted to Ontario Electronic Stewardship

• First report due May 31, 2009

• Remitter’s and Sub-Remitter’s Agreements available

Waste Electrical & Electronic Equipment• Phase II covers

– Telephones & cell phones

– PDAs and pages

– Cameras

– Radios, audio & video players, speakers

– Copiers, scanners, modems

• Effective April 1, 2010

Municipal Hazardous Waste

• Phase 1 obligations began July 1, 2008, covering:– Paints, solvents and their containers– Used oil filters and oil containers

– Single use dry cell batteries– Automotive antifreeze and containers– Propane tanks and cylinders– Fertilizers, fungicides, herbicides, insecticides,

pesticides and containers

Municipal Hazardous or Special Waste

• Covers both residential and IC&I

• Rules effective for 18 months (July 2008 – Dec. 2009)

• Stewards are Brand Owners, First Importers and Franchisors

• Reports and fees due quarterly, starting October 2008

• Some overlap with Blue Box Plan

Municipal Hazardous Waste

• As of July 1, 2010, the program will cover 22 materials including the original substances plus:– aerosol containers, fluorescent light bulbs

– fire extinguishers, mercury switches & thermostats

– pharmaceuticals & “sharps”

Used Tires

• Ontario Tire Stewardship will manage the program

• Task to manage 12 million used tires generated annually in Ontario and to clean up historical stockpiles within 3 years

• First monthly reporting period was September 2009

• Manufacturers and First Importers are Stewards and pay fees for passenger and commercial, on & off road tires

Photo credit: Ontario Tire Stewardship

Used Tires• Fees range from $5.84 per passenger tire and $14.65 per

medium truck tire to $250.20 per “giant off the road” tire

• Automotive stores, repair facilities, municipal depots serve as collection locations

• Goals is diversion of 90% of passenger tires and 50% of “off road” tires within 5 year

Thank you

Register to receive copies of our free monthly update on environmental law in Canada, “Environment @ Gowlings” at http://www.gowlings.com/resources/newsletters.asp

Jennifer Mesquita, B.E.S., LL.B. Gowling, Lafleur Henderson LLP1 First Canadian Place, Suite 1600100 King Street WestToronto, Ontario, M5X 1G5

jennifer.mesquita@gowlings.com

(416) 369-7290

Fernando Tabet

Product Stewardship: concept

Sources of Obligations in Brazil

• Specific federal, state and local laws and regulations

• Specific requirements in licenses and permits

• International technical standards (GHS, REACH, ROHS, WEEE)

• National technical standards (ABNT)

• Sectorial policies (ABIQUIM: Responsible Care)

• Internal corporate policies

Relevant Treaties Ratified by Brazil

• Vienna Convention and Montreal Protocol (substances that deplete the Ozone layer)

• UNFCCC and Kyoto Protocol (GHGs)

• Biodiversity Convention (bioprospection)

• Cartagena Protocol (biosafety and transgenics)

• Basel Convention (hazardous waste)

• Rotterdam Convention (PIC procedure)

• Stockholm Convention (POPs)

• WTO Agreements (exceptional trade barriers)

• ILO Conventions (labor environment)

Scope of Requirements Pursuant to Brazilian Laws and Regulations

• Manufacturer/product registration and licensing requirements

• Labeling and packaging requirements

• Authorizations to import and export hazardous substances

• Safe transportation of hazardous cargoes

• Safe storage and manipulation of hazardous substances (standards)

Scope of Requirements Pursuant to Brazilian Laws and Regulations

(continuing)

• Storage of controlled products (inventories)

• Production and commercialization of products containing genetically modified organisms

• Access to biodiversity and associated traditional knowledge

• Post-consumption liability (tires, batteries, lamps, packagings, bottles, e-waste etc.)

• Consumers’ rights (information requirements)

Brazilian Public Entities Involved

• Ministry of Justice (Federal Police Department: controlled products)

• Ministry of Defense (Brazilian Army, Marine and Aeronautics: explosives and substances having any other military use potential)

• Ministry of Labor (safe labor environment)

• Ministry of Health (ANVISA’s product registration requirements) and State and local health protection agencies

Brazilian Public Entities Involved(continuing)

• Ministry of the Environment (IBAMA: company and product registration requirements; CGEN: authorization to perform bioprospection) and State and local environmental agencies (respectively, environmental licensing and control of local impacts)

• Ministry of Agriculture (product registration requirements)

• Ministry of Mines and Energy (ANP: quality requirements for fuels and biofuels)

Brazilian Public Entities Involved(continuing)

• Ministry of Transportation (ANTT, ANTAQ and ANAC: control of hazardous cargoes)

• Ministry of Development, Industry and Foreign Trade (INMETRO: product and packaging standards)

• Ministry of Science and Technology (CNEN: control of radioactive sources)

• Federal and State Public Prosecution Office (legal compliance control involving both civil and criminal jurisdictions)

Non-compliance: potential consequences

Non-compliance: potential consequences(continuing)

___________________________________________________Alameda Campinas, n.o 728, 6o andar, Cj. 64, Jardim Paulista

CEP 01404-001 - São Paulo - SP - BrasilTel.: (55 11) 2985 1070 – www.tabet.com.br