Are Local Governments Producers of Packaging & Printed Paper?

Staff at the Ministry of Environment and Multi-Material BC have informed UBCM that they consider local governments to be producers of packaging and printed paper under the under the Recycling Regulation, as they will be distributors of brochures, calendars and other materials that will end up in residential waste streams. However, UBCM's recent legal opinion contests this interpretation by the Province and MMBC.

The legal opinion was conducted by Lidstone & Company, and found that local governments are not producers of packaging and printed paper under the Regulation, except to the limited and unlikely extent that they happen to import packaging or printed paper into the Province, and sell, distribute or use that paper in a commercial enterprise.

Specifically, a local government would be considered a producer if it falls within one of three categories: the Manufacturer Category, the Trade-mark Owner Licensee Category, or the Importer Category.

Under the Manufacturer Category, the regulation states that a producer is “a person who manufactures the product and sells, offers for sale, distributes or uses in a commercial enterprise the product in British Columbia under the manufacturer's own brand”. The legal opinion found that local governments would likely ‘manufacture' products as they print material on blank packaging or paper, and would ‘distribute' a product to their community members. However, local governments do not have a ‘brand'. Rather, local governments have an official-mark and given that the definition of producer in the Regulation does not address official marks, local governments are not considered producers under this category.

Further supporting this argument is a publication by the Ministry of Environment titled Recycling Regulation Guide. This guide states that producer responsibility is not to be shifted to other levels of government without consent. It also sets out the role of local governments in context of the Regulation, but does not identify local governments as producers of packaging and printed paper.

Under the Trademark Category, the regulation states that a producer is a “person who is not the manufacturer of the product but is the owner or licensee of a trademark under which a product is sold, distributed or used in a commercial enterprise in British Columbia, whether or not the trademark is registered”. The Trade-Marks Act does not allow trademarks of the names or logos of public authorities, registered or unregistered, and expressly prohibits trademarks that incorporate a local government name, logo, or other mark. Local governments can, however, register official marks. Therefore, local governments are not considered producers under this category of the Regulation as they do not have a trademark.

The final category that local governments can be considered as producers is under the Importer Category. The Regulation states that a producer is “a person who imports the product into British Columbia for sale, distribution or use in a commercial enterprise”. This category could apply to local governments if paper is purchased from a producer that is outside of the province.

Therefore, Lidstone and Company found that local governments are not required to develop and implement the product stewardship plan called for under the Regulation (except in regard to the limited category of imports).

The legal opinion was obtained by UBCM to support the work of the UBCM Packaging and Printed Paper Working Group in their ongoing discussions with MMBC and the Province. UBCM members should consult with their legal departments and/or obtain their own legal opinion to ensure that they are not liable as producers under the Recycling Regulation.

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