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On January 30, 2026, the Federal Court of Appeal overturned the Federal Court's decision in Responsible Plastic Use Coalition v. Canada (Environment and Climate Change), 2023 FC 1511 and upheld the Federal Government's decision to add "plastic manufactured items" ("PMIs") to the List of Toxic Substances in Schedule 1 of the Canadian Environmental Protection Act, 1999 ("CEPA"). This decision maintains the current status quo of the prohibition of sale, import and manufacture of designated single-use plastics in Canada.
This bulletin provides the background leading up to the Court's decision, a summary of the Appeal Court's decision and implications for businesses.
Background
In 2018, the Canadian Council of Ministers of the Environment published a Canada-wide Strategy on Zero Plastic Waste aimed to address plastic pollution by 2030. Environment and Climate Change Canada subsequently published two documents: (i) a Science Assessment of Plastic Pollution that recognized the lack of standardized methods for monitoring micro-plastics and emphasized the potential harm caused by macro-plastics; and (ii) a Discussion Paper proposing an integrated management approach to plastics and seeking input on proposed regulations.
Ultimately, the Federal Government issued the Order Adding a Toxic Substance to Schedule 1 to the Canadian Environmental Protection Act, 1999 on April 23, 2021 that immediately added PMIs to the List of Toxic Substances in Schedule 1 of CEPA (the "Order"). This classification gave the Federal Government the authority to regulate PMIs and, under this authority, it enacted the Single-use Plastics Prohibitions Regulations ("SUP Regulations"), which came into effect on December 20, 2022. The SUP Regulations operate using a phased-in approach to ban or restrict the manufacture, import and sale of the following items that are made entirely or in part from plastic: (i) plastic checkout bags; (ii) beverage stir sticks; (iii) six-pack rings; (iv) cutlery (made of certain plastics); (v) straws (made of certain plastics); and (vi) food packaging and service ware made from "problematic plastics. For more information, please read our bulletins on the issuance of the Order and the SUP Regulations.
The final phase of the SUP Regulations was a ban on the manufacture, import and sale of the regulated products for the purpose of export (i.e., sale or supply outside of Canada) and was intended to come into force on December 20, 2025. However, the Federal Government recently decided not to move ahead with this last phase of the SUP Regulations as discussed in our bulletin here.
Federal Court Decision
The Applicants, Responsible Plastic Use Coalition (a not-for-profit corporation comprising of companies from the plastic industry who do business in Canada) together with several important industry stakeholders, brought an application before the Federal Court for judicial review of the decision to issue the Order. Notably, in June 2023, before the hearing of the application, the Strengthening Environmental Protection for a Healthier Canada Act received Royal Assent, resulting in Schedule 1 of CEPA being repealed and re-introduced in two parts. The result being that the Order at issue no longer exists at law, however, PMIs are still listed in Schedule 1 under the new legislation. Despite arguments that the application was now moot, the application was heard and a decision rendered.
The Federal Court concluded that PMIs are not a "substance" under CEPA, the Order was unreasonable, and the Order unconstitutional, as it was ultra vires the federal criminal law power. The Federal Court ultimately quashed the Order, which is discussed in our bulletin here. This decision was stayed thereby maintaining the status quo (and the application of the SUP Regulations) pending the outcome of the Federal Government's appeal to the Federal Court of Appeal.
Federal Court of Appeal Decision
The Federal Court of Appeal ("FCA") released its decision in Canada (Attorney General) v. Responsible Plastic Use Coalition, 2026 FCA 17 on January 30, 2026 allowing the appeal and concluding that the Order was constitutional.
The FCA determined that PMIs are a "substance" within the meaning of paragraph 3(1)(f) of CEPA, such that the decision to add them to Schedule 1 was reasonable as was the issuance of the Order itself. The Federal Court found that PMIs do not fit the definition of "substance" because "plastic manufactured items" is plural, whereas the text of section 3(1)(f) refers to "any manufactured item," singular.1 The FCA disagreed with this conclusion, relying on the Interpretation Act, which states that "[w]ords in the singular include the plural, and words in the plural include the singular."2 The FCA noted that the government uses the criteria in section 64 of CEPA to assess whether a substance causes or may cause harm.3 If a substance meets one or more of the criteria in section 64, the Federal Government can issue an order under section 90(1) adding the substance to Schedule 1.4 Once a substance is in Schedule 1, it can then be regulated under section 93(1).5
The FCA decision emphasized that the decision to list a substance in Schedule 1 and the decision to regulate the listed substance are two discrete steps.6 The legislation allows for broad listings of substances that the Federal Government is reasonably satisfied have the potential to cause harm, followed by more targeted regulations, meaning that there is no prerequisite that all PMIs be found to cause harm before they can be listed.7 There is no legislative requirement for the government to prove that each individual PMI is harmful at the listing stage because such limitation would create a legal constraint inconsistent with the legislative scheme which incorporates the "precautionary principle" to allow the Federal Government to take action to protect the environment when there is a reasonable risk of harm, without the requirement for scientific certainty.8 Instead, impacted parties can challenge the more targeted regulations, in this case the SUP Regulations (which regulate only six categories of PMIs), if they are believed to be unconstitutional or inconsistent with CEPA.
The FCA held that the Order is constitutional and does not engage the criminal law power because it does not impose any sanctions or penalties.9 A law is not unconstitutional simply because it allows for discretion that could be exercised unconstitutionally; instead, the legislation must be assessed based on what it does, not what it might do. The FCA further confirmed that no such assumption can be made that any unconstitutional exercise of the criminal power in relation to the Order will in fact occur.10
This decision may be further challenged with an appeal to the Supreme Court of Canada.
What Does This Mean for Your Business?
The FCA decision upholds the legality of the original Order (even if it technically no longer exists), confirms the broad federal authority to list substances based on potential, not proven, harm, supports the SUP Regulations as currently drafted remaining in effect, and opens the door for further regulation of PMIs by the Federal Government. Businesses who manufacture, distribute, sell, supply or use the categories of single-use plastic products covered by the SUP Regulations must continue to comply with the regulations and should remain alert to any new regulations in this space.
Given Canada's continued efforts to achieve the Canada-wide Strategy on Zero Plastic Waste (as documented in our Plan for the Ban series), it is unlikely to move away from the goal of controlling and reducing plastic pollution and waste in Canada. There remains the potential for future increased regulation of plastics resulting in more plastic products being banned or restricted, which will increase requirements on businesses and likely create an increased need for innovation and production in the area of reusable, recyclable and biodegradable alternatives.
This bulletin is part of our Plan for the Ban series regarding prohibitions and increased regulation of single-use plastics in Canada. If you have questions on how this decision or other Canadian plastics regulations may impact your business, please contact the authors of this bulletin.
Footnotes
1. 2026 FCA 17 at para 55.
2. Ibid at para 57, citing Interpretation Act, R.S.C. 1985, c I-21 at section 33(2).
3. Ibid at para 67.
4. Ibid.
5. Ibid at para 68.
6. Ibid at paras 79 to 80.
7. Ibid at paras 84, 92.
8. Ibid at paras 74, 96, 113, 152.
9. Ibid at para 159.
10. Ibid at para 157, 160, 161.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
