September 2017

Canada extends the first two transition milestones

The last few months have seen a flurry of activity in the regulatory world as companies clambered to meet the June 1, 2017 deadline for compliance with the Canadian Workplace Hazardous Materials Information System (WHMIS) 2015 regulation. Those who may have been late to the party will be relieved to learn that an extension to the deadline has been announced.

 

New Deadlines for WHMIS 2015 Compliance

On Feb. 11, 2015, the Hazardous Products Regulations (HPR) came into force as Canada’s approach to implement the Globally Harmonized System (GHS) for the classification and labeling of chemicals in Canada without reducing the level of protection for workers. The Controlled Products Regulations (CPR), also known as WHMIS 1988, was repealed to make way for the new and improved WHMIS 2015.

On May 31, 2017, Health Canada announced the extension of the first two transition milestones for WHMIS 2015 in the Canada Gazette. The deadline for manufacturers and importers of hazardous products to be compliant with WHMIS 2015 has been extended from June 1, 2017 to June 1, 2018. The deadline for distributors has been extended from June 1, 2018 to Sept. 1, 2018. The final deadline of Dec. 1, 2018 for compliance by employers has not been affected.

Companies have the option of complying with either the CPR or the HPR until the new deadlines have passed. Since the final deadline for compliance is firm, this delay results in shortened transition periods for distributors and employers. Health Canada has committed to support employers through this transition by providing guidance on best practices that can be employed to prepare for the transition.

Industry wants WHMIS to uphold level of protection for Confidential Business Information

Under WHMIS 1988, prescribed concentration ranges have been set out to cover instances where hazardous ingredients in mixtures are present in a range of concentrations, for example due to batch variability. Health Canada intended for the exact percentage of hazardous components to be disclosed, except in cases where the ingredient is not always present in the same concentration. However, many interpreted the regulation to mean that these prescribed ranges may be used for any ingredient. As a result, companies protected the concentrations of their Confidential Business Information (CBI) ingredients by disclosing the prescribed concentration ranges set out in the CPR instead of the true percent of each hazardous component.

The generic concentration ranges were not retained under WHMIS 2015; The HPR requires the true concentrations or concentration ranges of hazardous ingredients to be disclosed on the safety data sheets (SDS). To protect the concentrations of hazardous ingredients as CBI under the new regulation, a Hazardous Materials Information Review Act (HMIRA) claim must be filed to Health Canada. HMIRA claims cost as much as CAD$1,800 per submission; time and energy is also spent to compile the required documentation. This process can become costly for those businesses with numerous products containing CBI ingredients. Companies that previously protected their formula by using generic concentration ranges will now be hit with these additional regulatory costs to keep their CBI protected.

Representatives from industry have voiced concerns about these changes. Those subject to WHMIS regulation hold that they should be permitted to protect the true concentrations of ingredients as CBI without undergoing the costly HMIRA application process. Additionally, these changes result in an increased burden on Health Canada to process additional HMIRA claims under the new regulation. It has been estimated that thousands of new claims, costing millions of dollars, would need to be filed under HMIRA to grant the same level of CBI protection that was permitted under WHMIS 1988. HMIRA requirements for protection of CBI puts companies selling to Canada at a disadvantage compared to the U.S., where suppliers may self-declare confidential information without an associated fee or application to the U.S. Occupational Health & Safety Administration (OSHA).

The deadline extension was given due to insufficient time prior to the first transition deadline to fully consider this issue. More time is needed to reach a consensus on a possible amendment to the HPR that would satisfy the concerns of regulated parties.

Additional issues raised by labor representatives

There has been a consensus among stakeholders that the use of prescribed concentration ranges might be acceptable. So why is a full year needed to implement such a change? Labor representatives have raised additional concerns relating to the disclosure of ingredients that are carcinogens, mutagens, reproductive toxins and respiratory sensitizers (CMRs), as well as the protection of product sectors excluded from WHMIS such as consumer products. Concessions on these additional points may be a condition for support.

 

How these changes could influence consumer products and more

As mentioned previously, Health Canada has committed to provide support for employers as they make their way through the transition from WHMIS 1988 to WHMIS 2015. We can expect guidance to be released prior to the first extended deadline of June 1, 2018.

So, you might ask, what are some of the other changes we can expect? It is possible that the new prescribed ranges will differ from WHMIS 1988. We may see narrower ranges than before or there could be some new restrictions that limit the protection of CBI in this way. For example, full disclosure may still be a requirement in cases of particularly dangerous ingredients such as CMRs.

Perhaps we will also see updates to the Consumer Chemicals & Containers Regulations (CCCR). There could be new requirements for Canadian consumer labeling comparable to California’s recently amended Proposition 65. Prop 65 requires clear and reasonable warnings on products that contain chemicals known to cause cancer or reproductive harm. Given the interest of Canadian labor representatives in CMRs, new labeling requirements for these chemicals are a possibility. These could take the form of custom warnings, requirements to disclose certain chemicals on the label or new pictograms.

This is all speculation, of course. We will be sure to keep you in the loop as new information becomes available. SPRAY