September 2015

OSHA & WHMIS progress toward harmonization…

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We have had a busy couple of months, as The U.S. Occupational Safety & Health Administration (OSHA) and Canada’s Workplace Hazardous Materials Information System (WHMIS) have cleared up some long-standing irritants concerning harmonized Safety Data Sheets (SDS) and workplace labels. Not all is well in Canada, however, as a number of consumer chemicals have been recently recalled by Health Canada.

OSHA Provides Further Guidance on Hazcom 2012 “Missing Data” Problem
OSHA’s Hazcom 2012 (HCS 2012) regulation requires a great deal of information sharing along the supply chain. For a company to complete a Hazcom 2012 compliant SDS or workplace label, it needs to obtain a wealth of information from its suppliers, including complete Globally Harmonized System of Classification & Labeling of Chemicals (GHS) classification information.

The deadline for manufacturers and importers to have Hazcom 2012 compliant SDS and labels has already passed, but some companies cannot complete their documents because they have not been given the necessary information from their upstream suppliers. This puts these companies in a position where they cannot comply with the legislation through no fault of their own.

Recently, OSHA announced it would make allowances for companies that could not produce documents due to a lack of information from upstream suppliers. OSHA recently clarified its position by developing a five-point test to determine whether or not an importer or manufacturer has exhibited “reasonable diligence and good faith” in attempting to obtain the necessary information. Here, in OSHA’s words, are the five items they need to see from manufacturers/importers that cannot complete Hazcom 2012 compliant labels and SDS due to a lack of data:

  1. Developed and documented the process used to gather the necessary classification information from its upstream suppliers and the current status of such efforts;
  2. Developed and documented efforts to find hazard information from alternative sources (e.g., chemical registries);
  3. Provided a written account of its continued communications with upstream suppliers, including dated copies of all relevant written communication;
  4. Provided a written account of continued communications with its distributors, including dated copies of all relevant written communication with its distributors informing them why it has been unable to comply with HCS 2012; and,
  5. Developed the course of action it will follow to make the necessary changes to SDS and labels once the information becomes available

Ideally, your company will have all of its SDS and labels completed by now. If you still have some gaps due to a lack of data, please ensure that you have the necessary paper trail to satisfy OSHA’s five point standard.

Health Canada makes joint US-Canadian compliant SDS and labels possible
The rollout of WHMIS 2015, Canada’s answer to Hazcom 2012, has been rather bumpy. Although the intent of the regulation was to facilitate the creation of jointly-compliant documents between Canada and the U.S., a number of sharp-eyed regulatory consultants found clauses in WHMIS 2015 that directly contradicted Hazcom 2012, making a jointly compliant document impossible. We had been advising our clients not to attempt jointly compliant documents until these issues were addressed.

Since joint compliance was one of the goals of WHMIS 2015, we knew that Health Canada would work on addressing these issues. A few months ago, my colleague Mae Hrycak wrote a letter to Health Canada, requesting answers to the following two questions [edited for length]:

“1. WHMIS 2015 has taken the precautionary statements from Annex 3 of the UN GHS (5th revision) regulations. HCS 2012 has laid out its own precautionary statements in Appendix C. Will Canada accept the p-statements from the HCS 2012 regulations so we can use a combined label for both countries?

  1. The Health Canada states “The backslash and full stops must not appear on the label” for p-statements. This is not the case under HCS 2012 because backslashes are permitted. It is necessary to remove the backslashes, even if all of the options are possible? For example does “Do not breathe dust/fume/gas/mist/vapors/spray” need to be revised to “Do not breathe dust, fume, gas, mist, vapors, and spray”.”

On July 21, she received guidance from Health Canada that contained the following:

“In response to your first question below, minor variations in the wording of precautionary statements that do not affect the intended meaning of the statements would be considered acceptable under the Hazardous Products Regulations (HPR). That is, in a situation where the precautionary statements provided on the label and SDS of a hazardous product are not exactly the same as those specified in section three of Annex Three of the GHS (5th revised edition), but the supplier determines that the intended meaning is the same, this would be considered acceptable under the HPR. This will be further clarified in guidance material on the requirements of the new HPR, which is currently under development.

“In response to your second question below, we have discussed this issue with the U.S. OSHA. Both Health Canada and OSHA agree that, where one or more backslashes or diagonal marks ( / ) appear in the text of a precautionary statement listed in section three of Annex Three of the GHS (5th revised edition) or in Appendix C of the HCS 2012, this means that the supplier must select all the appropriate choice(s) from the words that are separated by the backslashes.

“For example, in the case of precautionary statement P261, ‘Avoid breathing dust/fume/gas/mist/vapors/spray’, if a worker could be exposed to the hazardous product through inhalation of dust, fume, gas or vapors, then this precautionary statement should read as follows:  ‘Avoid breathing dust, fume, gas and vapors’, or ‘Avoid breathing dust, fume, gas or vapors’ or ‘Avoid breathing dust/fume/gas/vapors’, as long as the precautionary statement includes all the applicable words.

“The Health Canada web page on ‘Information Elements Required on a WHMIS 2015 Label’ has been modified to indicate that backslashes may appear in a precautionary statement on a WHMIS 2015 label, as long as the precautionary statement includes all the words that are applicable to the hazardous product.”

With these issues clarified, we are now confident that jointly compliant documents are possible. If you would like a copy of Health Canada’s full letter, please e-mail me at [email protected]

Health Canada ramps up consumer chemical recalls
After a heavy period of recalls for flammable aerosols and reed diffusers, we went through an extended period of peace and quiet when it came to consumer chemical recalls in Canada. Since March, however, recalls have picked up substantially. Particularly worrying is that, unlike the previous set of recalls, there does not appear to be one type of product that the agency is targeting. The recent recalls include the following:

  • Automotive touch-up paint, antifreeze/coolant, urethane catalyst, radiator flush, citrus all-purpose cleaner and vehicle wash products: Lacked Canadian labeling altogether.
  • Aerosol hair care products: Lacked pressured container and flammability information required by Canadian law.
  • Household cleaners and boat cleaner chemicals: Did not meet Canada’s child-resistant packaging requirements.

With this heightened enforcement of Canadian labeling regulations, it is more important than ever to ensure products are compliant with the applicable legislation. Note that WHMIS 2015 does not alter the regulations governing consumer chemicals, which still fall under the existing Consumer Chemicals & Containers Regulations, 2001 (CCCR, 2001) regulations.

Canada has a federal election on Oct. 19 of this year. In my next piece, I will discuss how the outcome of the election will affect companies importing into Canada, as well as touch on any new regulatory developments between now and then.