Companies around the world are scrambling to have their workplace labels and safety data sheets compliant for the Canadian market. The deadline for compliance is May 31, 2017; Nexreg is already noticing an increase in calls from companies worried they will miss the deadline for compliance.
In December, the government helpfully released the second half of its promised Technical Guidance on the Requirements of the Hazardous Products Act & Hazardous Products Regulations, which details the responsibilities of chemical manufacturers and importers into Canada. Less helpfully, as of January 2017, the document can only be obtained through e-mailing this not-very-easy-to-remember address: [email protected] Alternatively, I would be happy to e-mail you a copy of the document at [email protected]
With a length of 542 pages, the guidance document is comprehensive but far from an easy read. There are two big items worth highlighting.
1) Confidential business information
Where Nexreg believes companies most likely to get themselves into trouble is in assuming that Canada’s Hazardous Products Regulations (HPR) treats confidential business information (CBI) the same way as the U.S.’s Hazard Communication Standard (HCS). The guidance document provides details about the differences between the two:
In Canada, the Hazardous Materials Information Review Act (HMIRA) sets out a process by which requests to protect CBI are filed with Health Canada for approval. These requests must be filed before market access, and involve a post-market review of the compliance status of the product’s safety data sheets (SDS) and label, as well as a decision on the validity of the claim.”
The U.S. Occupational Safety & Health Administration (OSHA) Hazard Communication Standard (HCS) generally allows the same pieces of information to be protected as CBI as is allowed by the Hazardous Products Act (HPA) and its associated regulations. However, the mechanism by which CBI can be protected is very different. Under the HCS, there is no requirement to make a submission to OSHA for permission to protect a particular piece of CBI.
In the U.S., it is possible to mask the chemical name and/or concentration range of an ingredient on the supplier’s SDS. They may need to prove at a later date that the information is truly confidential, but they do not need to seek permission first from a government agency.
The situation is much different in Canada, where all hazardous ingredients must be listed on the SDS, along with exact percentage ranges. We foresee this causing two problems for U.S. manufacturers importing products into Canada:
- They may lack awareness of the rules and have products denied entry into Canada because it lacks the necessary information.
- Companies may comply with the Canadian rules and list both ingredient names and exact concentrations on their Canadian SDS. However, in so doing, they can no longer claim on their U.S. documents that this information is “confidential” since Canadian SDS are widely available.
We are recommending to all of our clients that, if ingredient disclosure is a concern, they file with the Canadian government immediately. Doing so allows a company to immediately mask this information on their documents, as explained by the Guidance Document:
For products with multiple ingredients (i.e., a mixture that is a hazardous product), the ingredients and/or the concentrations of one or more ingredients may be considered confidential business information. Once a temporary claim exemption is granted by Health Canada, the supplier is required to reference the claim for exemption in lieu of disclosing the true concentration or true concentration range of the ingredient.
This does not mean, however, that a company can simply use any concentration range they wish on their documents. They need to ensure their “masked” concentration range does not alter the overall hazard classification of their mixture:
Where the ingredient concentration is the subject (or part of the subject) of the claim for exemption, a replacement range should be provided, as a best practice, in lieu of the true concentration or the true concentration range, subject to the following conditions:
When a replacement concentration range is used on the SDS, the hazard classification must be accurate for the true concentration or the true concentration range and the replacement concentration range; and
All other information provided on the SDS must be equally reflective of the true concentration or true concentration range and the replacement concentration range (e.g., the true concentration and true concentration range must be contained within the replacement concentration range).
2) Canadian supplier identifier
The second item that caught our attention is the need for a “Canadian supplier identifier” on both the product label and SDS. A question we are often asked at Nexreg is “What if our company has no operations in Canada?” The guidance document addresses it as follows:
[The] name, address and telephone number of a Canadian manufacturer or Canadian importer are required to appear on the label of any hazardous product that is sold in or imported into Canada and is intended for use, handling or storage in a workplace in Canada. However, where a hazardous product is sold by a Canadian distributor, the distributor may provide his own name, address and telephone number on the label and SDS in lieu of the name, address and telephone number of the Canadian manufacturer or Canadian importer. Furthermore, a Canadian importer can retain the name, address and telephone number of the foreign supplier on the label and SDS if the hazardous product is imported only for the importer’s own use…
We expect this to cause headaches for many U.S. aerosol manufacturers, as the only “Canadian” entities they deal with are distributors. However, they deal with dozens, if not hundreds, of different distributors in Canada, which theoretically would require them to have dozens, if not hundreds, of different versions of their SDS and product labels. Given the financial and logistical costs such a scenario would create, U.S. companies will need to determine what information they will list as the “Canadian supplier identifier,” and have only until the end of May to make this determination.
This only scratches the surface; at 542 pages, the Guidance document contains a wealth of information. If your company sells any product into Canada, I would highly recommend you obtain a copy.