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Dr. Mike Moffatt, Ph.D. Director of Communications, Nexreg Compliance inc. Regulatory International Influences Dealing with WHMIS in Canada The Workplace Hazardous Materials Information System 2015 (WHMIS), the Canadian implementation of the Globally Harmonized System of Classification & Labeling of Chemicals (GHS), has been active for nearly six months, which has given us enough experience to see where the biggest challenges are for companies attempting to be compliant with the new regulations. By far, the area where firms are struggling is with the requirement that exact concentration percentages be listed on Safety Data Sheets (SDS). The following is what you need to know for your company to navigate the issue. Hazardous Products Regulations The Hazardous Products Regulations (HPR), which govern WHMIS 2015, are unusually clear when it comes to the need for concentration percentages on SDS for products which are mixtures: “In the case of a hazardous product that is a mixture, for each material or substance in the mixture that, individually, is classified in any category or subcategory of a health hazard class and is present above the concentration limit that is designated for the category or subcategory in which it is classified or is present in the mixture at a concentration that results in the mixture being classified in a category or subcategory of any health hazard class, (a) its chemical name; (b) its common name and synonyms; (c) its Chemical Abstracts Service (CAS) registry number and any unique identifiers; and (d) its concentration” (Source: http://laws-lois.justice.gc.ca/eng/ regulations/SOR-2015-17/index.html) This is further confirmed by Health Canada’s Frequently Asked Questions (FAQ), which in response to a question that begins “There are no prescribed concentration ranges under the Controlled Products Regulations (CPR)”, clarifies that concentration ranges (outside of those that are naturally occurring) are a form of confidential business information (CBI) and, as such, require a trade secret claim: “Under the HPR, you must disclose the actual concentration or concentration range of a hazardous component in the hazardous product. You may add the concentration of an ingredient to the claim for exemption and claim it as CBI. For refiled claims, ingredient concentrations that were previously hidden in a CPR prescribed range 24 Spray December 2015 can be added as CBI in the subsequent filing under WHMIS 2015.” (Source: http://www.hc-sc.gc.ca/ewh-semt/occup-travail/whmissimdut/ faq-eng.php) The phrase “may add the concentration of an ingredient to the claim for exemption and claim it is as CBI” is important here. The FAQ makes it clear that the concentration listed on the SDS must reflect the exact concentration of the mixture, exempting ingredients that are not “at a concentration that results in the mixture being classified in a category or subcategory of any health hazard class.” Any attempts to mask this in a percentage range (or omit entirely) require use of Canada’s confidential business information provisions. Unlike in the U.S., companies must formally submit an application to Health Canada in order to treat specific ingredients and/or their concentration ranges as confidential. The Act that governs this is the Hazardous Materials Information Review Act (HMIRA), which lays out the process companies need to follow in order to obtain trade secret status (Source: http://laws-lois.justice.gc.ca/eng/acts/H-2.7/FullText.html). Successful claimants will receive a four digit HMIRA number (HMIRA#) which they can put on their document in place of the confidential information, as shown by the following example: Ingredient CAS No Wt. % Polyalkene Oil * HMIRA# 0000 Carboxylate Salt * HMIRA# 0000 The specific chemical identity and exact percentage (concentration) of composition has been withheld as a trade secret in accordance with paragraph (i) of §1910.1200. *HMIRA# 0000 Trade Secret Grant Date 7/15/2015 One particularly nice feature of HMIRA is that companies do not have to wait for the decision in order to treat the information as confidential on their SDS, as the Act states “until the final disposition of the proceedings in relation to the claim for exemption, exempt from the requirement in respect of which the exemption is claimed.” Rather than waiting, companies can note on their documents that HMIRA acceptance is pending and note the application number on their SDS. The process for obtaining trade secret status is not a trivial one. Companies are required to submit their SDS, along with the


Spray December 2015
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