Notice of objection filed by Toyota Motor Manufacturing Canada Inc. and Minister’s response to the Notice of objection

Minister's response to Toyota Motor Manufacturing Canada Inc.

Notice of objection

October 1^st, 2021
Honourable Minister Guilbeault, Minister of the Environment and Climate Change
c/o Christina Paradiso
Executive Director, Chemicals Management, Environmental Protection Branch
Department of the Environment
351 Saint-Joseph Boulevard, Gatineau, Quebec K1A 0H3

By E-Mail: ec.interdiction-prohibition.ec@ec.gc.ca

Re: Notice of Objection and Request for Board of Review in relation to proposed regulations* prohibiting the manufacture, use, sale and import of decabromodiphenyl ethane (DBDPE, CAS Registry Number 84852-53-9)

*Canada Gazette, Part I, Volume 156, Number 20 – May 14, 2022: Prohibition of Certain Toxic Substances Regulations, 2022

Dear Minister Guilbeault,

Toyota Motor Manufacturing Canada Inc. (TMMC) is taking the extraordinary step of submitting this Notice of Objection to the regulatory proposal published in the Canada Gazette on May 14^th, 2022 which includes, amongst the proposed amendments to the Prohibition of Certain Toxic Substances Regulations, very targeted measures against the manufacture, use, sale and import of DBDPE.

My colleague from our sales operations – Chris Tubbe – has submitted a similar objection focusing on technical challenges within our sales and distribution operations in Canada, however I’d like to take a moment to focus on the specific impacts to our manufacturing operations in Canada. Toyota is the largest automotive manufacturer in Canada, by some margin, and we employ more than 8500 people at our operations in Cambridge and Woodstock, Ontario.

We are truly a North American operation, with more than 80% of our parts and materials coming from the CUSMA region, and we supply vehicles only to the North American market. Approximately 60% of our parts and components are imported from our partners in CUSMA, and 87% of our products are exported to the United States. We are truly integrated in the CUSMA region. Apart from unfettered trade access throughout the region, we also rely on regulatory alignment across North America. Yes, there are subtle differences in regulation between our countries (language and cold-weather requirements come to mind), however the vehicles sold in Canada, the Unites States and Mexico are effectively identical in design and build. This creates benefits to our customers, as it keeps costs down (building two versions of the same vehicle becomes expensive) as well as minimizes complexity across our supply chains.

I’m certain the efforts to prohibit DBDPE are well intended – I’ll leave others to speak to the environmental impacts – but I’d like to inform you of the impacts to our Canadian operations should this policy move forward in its current form. Whether or not DBDPE has adverse environmental impacts, it provides a critical flame retardant function to the majority of our electronics components, which keeps drivers safe in the event of a crash or a fire. At this time, we have no suitable replacement for DBDPE on the horizon, and by ‘we’, I mean the global automotive industry. Ironically, DBDPE is actually a replacement for a previous chemical that provided similar flame retardant properties. That chemical (HBCD) was prohibited through an aligned global effort (Stockholm Convention) where different jurisdictions worked together to simultaneously prohibit a substance that they all agreed could harm the environment. This proposed action by your Ministry accomplishes neither of these things:

• There is no global alignment on DBDPE and, in fact, Canada is the only jurisdiction that is taking this action
• Because of this, there is no regulatory alignment between different jurisdictions.

Within the context of the CUSMA region, if Canada were to prohibit the use of DBDPE – and the United States and Mexico do not – this creates a competitive impediment to future production in Canada. We (TMMC) make three vehicles at our operations in Canada (Toyota RAV4, Lexus RX and Lexus NX), all of which are also made elsewhere. If we were presented with a scenario where the large majority of our electronic components were prohibited, with no viable countermeasure on the horizon, one possible solution to this problem could be to make those vehicles somewhere else. While I’m speaking on behalf of Toyota, I think you will also find this particular phenomenon exists at other companies assembling vehicles in Canada.

I have no doubt that the efforts to prohibit DBDPE are well intentioned, however these types of regulatory actions are best executed through jurisdictional cooperation, as well as meaningful consultation with your regulated parties. The unintended consequences of not following this advice could be very detrimental to our automotive industry in Canada.

I appreciate your consideration in this matter.

Regards,

Scott MacKenzie
Director, Corporate and External Affairs
Toyota Motor Manufacturing Canada, Inc.
Scott.MacKenzie@Toyota.com
519.654.6968

Minister's response

Mr. Scott MacKenzie
Director, Corporate and External Affairs
Toyota Motor Manufacturing Canada, Inc.
scott.mackenzie@toyota.com

Dear Mr. MacKenzie:

This letter is in response to your Notice of Objection and request to establish a board of review to the publication of the proposed Prohibition of Certain Toxic Substances Regulations, 2022 (proposed Regulations), which was received by Environment and Climate Change Canada on July 14, 2022. The proposed Regulations were published in the Canada Gazette, Part I, on May 14, 2022.

I have carefully considered all the issues in your Notice of Objection, including those dealing with the nature and extent of the danger posed by decabromodiphenyl ethane (DBDPE) and the other questions and considerations that you brought to my attention. In my opinion, your Notice of Objection does not raise sufficient uncertainty or doubt in the science underlying the proposed Regulations that would warrant the establishment of a board of review under subsection 333(1) of the Canadian Environmental Protection Act, 1999 (CEPA). Therefore, I am denying your request, and I will not establish a board of review. The reasons for my decision are explained below and in the Annex to this letter.

Responses to comments in your Notice of Objection related to the outcomes of the screening assessment for DBDPE, which concluded that there is a risk of harm to the environment due to the persistence and widespread occurrence of DBDPE in the environment along with the potential for bioaccumulation and toxicity of its transformation products, are provided in the Annex.

The comments in your Notice of Objection regarding the development of the proposed Regulations have been considered alongside other comments received on these regulations. The specific points you have raised on the proposed Regulations and how they will be addressed are also summarized in the Annex to this letter. Your Notice of Objection raised specific concerns on the proposed exemptions for DBDPE, and to address these concerns, the proposed timeline of the DBDPE exemptions will be extended by an additional 10 years (i.e. extended from 5 years to 15 years for new products and from 20 years to 30 years for replacement parts) and the scope of these exemptions will be broadened to include all manufactured items and additional intermediate materials. This extended timeline will allow all stakeholders additional time for the research and development of alternatives, testing and certification, and transitioning their manufacturing and supply chains. Broadening the scope of the DBDPE exemptions will help to reduce the risk of prohibiting critical components, reduce the need to apply for permits under the proposed Regulations for non-exempted parts, and reduce compliance burden of stakeholders throughout the supply chain.

Please note that the comments on the proposed Regulations will be summarized in the Regulatory Impact Analysis Statement that will be published with the final Prohibition of Certain Toxic Substances Regulations, 2025 (2025 Regulations) in the Canada Gazette, Part II, which describe how these matters have been addressed.

I appreciate your bringing your concerns to my attention. Please accept my best regards.

Sincerely,

The Honourable Julie Dabrusin, P.C., M.P. (elle/she/her)

Annex

The following list provides a summary of comments in your Notice of Objection and the responses from the Department:

1. In your Notice of Objection, you commented that DBDPE is used as a flame retardant to meet critical flammability standards and safety requirements in products such as motor vehicles and that DBDPE was used as a substitute for previous flame retardant chemicals, such as HBCD which was phased out in alignment with global agreements and regulations.  

Flame retardant substances are generally used to meet performance-based flammability requirements. These requirements do not specify what chemical flame retardants need to be used; rather they may require a product or component to pass a laboratory test such as a cigarette smolder or open flame ignition test (ASTM 2014). Using chemical flame retardants such as DBDPE in products is one of the ways by which companies can meet flammability requirements for their products. Alternate substances as well as non-chemical-based alternatives may also be used to replace the use of DBDPE as a flame retardant in various applications. 

In addition to the concerns you have raised in your Notice of Objection, a number of similar comments were received during the public comment period for the proposed Regulations. To address these concerns, the proposed timeline of the DBDPE exemptions will be extended by an additional 10 years (i.e. extended from 5 years to 15 years for new products and from 20 years to 30 years for replacement parts) and the scope of the DBDPE exemptions will be broadened to include all manufactured items and additional intermediate materials. This extended timeline will allow all stakeholders additional time for the research and development of alternatives, testing and certification, and transitioning their manufacturing and supply chains. Broadening the scope of the DBDPE exemptions will help to reduce the risk of prohibiting critical components, reduce the need to apply for permits under the Regulations for non-exempted parts, and reduce compliance burden of stakeholders throughout the supply chain. 

2. In your Notice of Objection, you noted that there is no prohibition of DBDPE in other world-wide jurisdictions and prohibition of DBDPE proposed in Canada poses a risk to Canadian industry. In addition, you commented that a global approach (such as jurisdictional cooperation) to chemicals management is critical to industry. 

Canada has been one of the first countries to lead action on flame retardants and was the first country to complete a risk assessment and propose risk management of DBDPE; however, Canada is not alone and since then international action for DBDPE has been underway or has been finalized.  

In March 2023, the European Union (EU), under the European Chemicals Agency (ECHA) published their Regulatory strategy for flame retardants, which has a focus on brominated flame retardants and their prioritization for restriction, including DBDPE. This document noted that:

For decabromodiphenyl ethane (EC 284-366-9, DBDPE) data was requested regarding potential bioaccumulation under substance evaluation and has been assessed by the PBT expert group. The available data, including field studies, appear to confirm the Persistent, bioaccumulative and toxic (PBT) properties of the substance.

Furthermore, on October 31, 2024, ECHA updated the substance evaluation status for DBDPE as “Concluded” published a Substance Evaluation Conclusion and Evaluation Report that considers DBDPE to meet the Regulation on the registration, evaluation, authorisation and restriction of chemicals (REACH) Annex XIII very persistent and very bioaccumulative criteria, wide dispersive use and high aggregated tonnage concerns and the need for follow-up regulatory action at the EU level. The report notes the restriction of aromatic brominated flame retardants as proposed in ECHA’s Regulatory strategy for flame retardants appears as a logical continuation following a formal hazard identification as very persistent and very bioaccumulative for DBDPE.

On June 27, 2025, ECHA published a proposal for identification of DBDPE as a substance of very high concern (SVHC) on the basis of the criteria set out in REACH Article 57. A REACH Annex XV report was prepared by Sweden to support the proposal for identification of DBDPE as a SVHC.

In the United States (US), DBDPE is listed as a new chemical and is subject to a Significant New Use Rule, which requires manufacturers and processors to notify the US Environmental Protection Agency (EPA) before a new use for the manufacture, import or processing of DBDPE begins. In June 2021, the EPA made DBDPE subject to a Final Health and Safety Data Reporting rule pursuant to the Toxic Substances Control Act (TSCA) as part of a grouping of 30 organohalogen flame retardants being evaluated for risks by the Consumer Product Safety Commission (CPSC). In January 2024, the CPSC published Organohalogen Flame Retardant Scope Document: Polyhalogenated Benzene Aliphatic and Functionalized Subclass report (the PHBzAF subclass, which includes DBDPE) which concludes that “the PHBzAF subclass has sufficient data to proceed with risk assessment”. Furthermore, DBDPE is restricted in some consumer products under general flame retardant restrictions in some states, such as California, Maine, and New Hampshire.

In August of 2021, Australia published their assessment of DBDPE and found that DBDPE:

meets the persistence, bioaccumulation, adverse effects in aquatic and terrestrial organisms and long-range transport criteria of Annex D of the Stockholm Convention on Persistent Organic Pollutants. Therefore, on the basis of the current hazard information available, the assessed chemical could pose an unreasonable risk to the environment. 

The Australian report also recommended control measures be developed under the Industrial Chemicals Environmental Management (Register) Act 2021.

On June 26, 2025, the Australian government finalized its risk management for DBDPE after publishing a statutory public consultation on the proposed risk management for DBDPE in April 2025. The Industrial Chemicals Environmental Management Standard for decabromodiphenyl ethane (DBDPE) is a final scheduling decision to list DBDPE to Schedule 6 of the Industrial Chemicals Environmental Management (Register) Instrument 2022. Schedule 6 of this instrument lists “Relevant industrial chemicals that are likely to cause serious or irreversible harm with essential uses” and specifies the risk management measures, including prohibitions and restrictions, that apply to the relevant industrial chemical or a mixture or article containing such a chemical (Australia, 2025).

Canadian risk management for DBDPE takes into consideration actions taken in jurisdictions, including the EU and the US, with the possibility of aligning where appropriate.

3. In your Notice of Objection, you provided comments that due to the lack of available alternatives for DBDPE in some products and that the short timeline and unique to Canada approach may result in negative impacts to Canadian automotive sector. Furthermore, you commented that the prohibition of DBDPE proposed in Canada poses a challenge to global supply chains and that your business relies on unfettered trade access and regulatory alignment across North America.

Please refer to the response to point 1 (above) respecting the extended timeline for, and broadened scope of the DBDPE exemptions.