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Two legal challenges are continuing in Canada after the government denied industry requests for an independent board review of 2025 regulations restricting the use of the flame retardant decabromodiphenyl ethane (DBDPE).
The American Chemistry Council (ACC)’s North American Flame Retardant Alliance (NAFRA) filed two legal actions over the past 18 months, asking Canada’s Federal Court to review the government’s 2025 Prohibition of Certain Toxic Substances Regulations and an underlying order that added DBDPE to part 2 of the schedule 1 list of toxic substances under the Canadian Environmental Protection Act (CEPA).
Together, the cases highlight industry concerns over Canada’s assessment of DPDPE and what NAFRA describes as a lack of readily available alternatives.
Ultimately, the objective is to "help ensure that regulatory decisions are grounded in the best available science, are transparent, and appropriately weigh both environmental considerations and the critical fire safety benefits that DBDPE provides in a wide range of products", NAFRA told Chemical Watch News & Insight.
Talia Gordner, a partner in environmental law and corporate commercial litigation at Canadian law firm McMillan, who is not involved in either action, said if industry challengers are successful, the court could potentially quash the underlying order adding DBDPE to CEPA schedule 1. Alternatively, it could allow the government to issue a new or revised schedule 1 order, or amend the 2025 restrictions.
At the same time, Gordner said, it can be challenging for parties to succeed in legal challenges involving a public interest such as protecting the environment or public health.
Industry objections
Canada has long considered imposing restrictions on DBDPE and another flame retardant, Dechlorane Plus (DP), initially signalling its intent to do so some eight years ago.
The government formally proposed prohibitions on the chemicals – along with tighter restrictions on several long-chain PFAS and other substances of concern – in 2022. It finalised the DBDPE and DP restrictions at the end of 2025, with many of the limits coming into effect earlier this year.
Shortly after Canada proposed the restrictions in 2022, 51 organisations, including NAFRA and several other trade groups and individual companies, filed notices of objection, requesting the government establish an independent board to review the proposed rules.
NAFRA’s objection letter questioned the government’s underlying assessment of DBDPE, saying it ignored the weight of evidence around the chemical and improperly used another chemical, decaBDE, as a proxy in its risk models.
The restrictions on DBDPE are also "unnecessary and unreasonable" and could ultimately threaten public health by increasing the flammability of a variety of products that rely on DBDPE, the trade group said.
Canada denied all of the industry objection letters, publishing its replies on the government’s CEPA registry website on 27 August.
In response to NAFRA, the government said the trade group’s objections did not raise sufficient uncertainty in the scientific findings underlying the regulations.
The government added that it made changes to the final rule in response to concerns raised by NAFRA and others over the lack of available alternatives to DBDPE.
The final rule extended exemptions for DBDPE in new manufactured items and certain thermoplastic, rubber and high-density polyethylene materials from five to 15 years and allowed 30 years to phase out the substance in replacement parts for certain products.
"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," the government said in response to NAFRA and other industry objectors.
Court challenges
Despite the changes in the final rule, NAFRA filed for Federal Court review of the regulations earlier this year (case T-394-26).
A NAFRA spokesperson said the extended exemption periods "were an improvement over the original proposal", but the changes failed to fully resolve the organisation’s concerns for "industries that rely on DBDPE in applications where fire safety, performance, durability and regulatory compliance are critical, including transportation, electronics, appliances, aerospace and other sectors".
The challenge to the 2025 regulations follows a separate action NAFRA filed a year earlier (case T-967-25), challenging Canada’s underlying assessment and order adding DBDPE to the CEPA schedule 1 list.
NAFRA said its position in that case is that the listing "was based on a flawed scientific assessment that relied on assumptions about DBDPE’s environmental behaviour that are inconsistent with available scientific evidence, including studies and expert analyses submitted to Canadian regulators over several years".
The two legal actions address different, but related, aspects of Canada’s regulation of DBDPE, NAFRA said.
"We believe these proceedings raise important questions about how scientific evidence is evaluated in chemical management decisions," the trade group said.
‘Up to the court’
Gordner said the case involving the schedule 1 listing order could be the tougher one for industry plaintiffs to win.
"Challenging the listing order is more difficult because of the broader discretion afforded to the government under CEPA, which requires a different legal test than the more targeted regulations that arise from the listing," she said.
At the same time, Gordner said, NAFRA has the benefit of learning from a recent Federal Court of Appeal (FCA) ruling that upheld a government order adding "plastic manufactured items" to CEPA schedule 1. Guidance from that case could inform NAFRA’s strategy and arguments in the current actions, she said.
In the end, she said, "whether or not there is merit to the challenges will be the decision of the court".