Regulatory Developments

Canada Publishes Hazardous Products Regulation

February 23, 2015 PRINT

On February 11, 2015, the Government of Canada published in Gazette II (Vol. 149, no. 3) the final regulation for adopting the Globally Harmonized System for Classification and Labeling of Chemicals (GHS). The final Hazardous Product Regulation (HPR) appears to be nearly identical to the proposed regulation published in Gazette I in August of 2014 (Vol. 148, no. 32) and is closely aligned with the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) Hazard Communications Standard (HCS) published on May 26, 2012 (U.S. HCS 2012). The transition period to the HPR is effective immediately. The transition period allows manufacturers and importers the flexibility to use either system of classification and labeling until June 1, 2017. More details are available online.

Background

The Canadian Workplace Hazardous Materials Information System (WHMIS) has been in place since 1988 and is implemented at the federal level through the Hazardous Products Act (HPA) and the Controlled Products Regulations (CPR). Suppliers of hazardous chemicals intended for workplace use are required to classify these products and provide related hazard information on a material safety data sheet (MSDS; now called a safety data sheet or SDS), and labels in accordance with these legislations. Under the authority of the amended HPA, Canada is repealing and replacing the CPR with the HPR. The HPR is essentially the implementation of GHS in Canada. The HPR is based on the United Nations' (UN) fifth revision of GHS, as well as various additional aspects to align the HPR with U.S. HCS 2012. The HPR also repeals the Ingredient Disclosure List. The update to WHMIS is being referred to as WHMIS 2015.

Key Changes

The HPR establishes the principles of the fifth revised edition of the UN GHS model and incorporates certain aspects of U.S. HCS 2012 with respect to substances and mixtures. Similar to both UN GHS and U.S. HCS 2012, classification is based on available data and no testing is required for the purposes of classification.

Part 7 of the HPR describes the Physical Hazard Classes. Physical hazards will expand to include the hazard classes currently covered by the CPR, as well as adopt additional hazards of pyrophoric gases, simple asphyxiants, and combustible dusts to align with U.S. HCS 2012. The HPR provides in Part 7 Subpart 17 a specific definition of combustible dust and indicates combustible dust would not be required to be regulated when shipped in non-dust form, which, when processed, would represent the hazard of combustible dust; this is a variation from the U.S. approach to this category. Canada is also adding in Part 7 Subpart 20 a "Physical Hazards Not Otherwise Classified (PHNOC)" category to capture hazards not addressed in either the UN model or U.S. HCS 2012, including products that undergo vigorous polymerization.

Similar to the approach for physical hazards, Part 8 of the HPR details the health hazard classes that include modifications to the existing health hazards currently covered by the CPR, as well as additional hazard categories. The additional hazards, as part of expanding to a GHS-based system, include in Part 8 Subpart 8 specific target organ toxicity -- single exposure and in Part 8 Subpart 10, aspiration hazard. The regulation also adds in Part 8 Subpart 12 "Health Hazards Not Otherwise Classified (HHNOC)" to capture elements not addressed by GHS. The HPR maintains in Part 8 Subpart 11 a separate hazard class for Biohazardous Infectious Materials in order to maintain current worker protection.

Hazard communication in Part 4 will include replacing the term MSDS with SDS, as well as a 16 section format with standardized GHS headings located in Schedule 1. To align with U.S. HCS 2012, Sections 12 to 15 are optional. The HPR requires the chemical name and concentration or concentration range of all ingredients that present a health hazard be included for disclosure on the SDS. The HPR does repeal the ingredient disclosure list as previously required under the HPA. The classification of the product, as well as information about any hazardous reaction product produced by proper use, is to be provided. The product identifier and supplier identification are required to be identical between the SDS and label. The process for ingredient trade secret has not changed.

Hazard communication changes also include major revisions in Part 3 to the labeling provisions. The HPR establishes the use of new standardized UN pictograms, hazard statements, signal words, precautionary statements, and supplemental label elements, where applicable. The HPR establishes precedence rules for labeling elements and allows the omission of non-applicable precautionary statements unlike U.S. HCS 2012. The current CPR symbol for biohazards will be retained. The hatched border around the label content is not retained. The inclusion of a product identifier and initial supplier identification is required. Additional information elements are found in Schedule 5 for specified categories (i.e., combustible dusts and simple asphyxiants). There are a few label exceptions/variations from UN GHS as well as U.S. HCS 2012 that should be noted:

  • Products containing carcinogens at 0.1 percent or more will require a label.
     
  • PHNOC and HHNOC are to be included on the label.
     
  • Biohazardous Infectious Materials would require a label.
     
  • Substances and mixtures that, upon contact with water, release a gaseous substance that is acutely toxic require a supplemental hazard statement on the label.

Information provided on the SDS and label will be required to be maintained in English and French, but the requirement to revise the SDS every three years, in the absence of new information, would no longer be required under the HPR.

Exemptions for providing SDS, label, or reduced information that no longer apply under the HPR include:

  • Flavors and fragrances.
     
  • Generic SDS exemption was removed, but use of a generic SDS would be acceptable as long as "the user is not misled by the information it contains."

Modifications to the exemptions include:

  • Bulk shipment would be extended to products sold without packaging and would be exempted from labels as long as label information is provided within Sections 1 and 2 of the SDS.
     
  • Small volume containers (capacity of <100 mL) may omit the hazard statements and/or the precautionary statements from the label.
     
  • Laboratory samples sent for analysis in quantities of <10 kg would not require a SDS if the chemical name and concentration of the sample or its ingredients are not known, or the sample is a non-commercialized product.

If new, significant information becomes available, the SDS and the label are required to be updated within 90 days (SDS) and 180 days (label). Significant new data means "new data regarding the hazard presented by a hazardous product that change its classification in a category or subcategory of a hazard class, or result in its classification in another hazard class, or change the ways to protect against the hazard presented by the hazardous product." New information and the date upon which it became available are expected to be transmitted by the seller of the product to the person who acquires it, or obtained or prepared by the importer of the product, in written form.

Commentary

The changes to the existing HPA and CPR for alignment with UN GHS and U.S. HCS 2012 published in Gazette II should be no surprise to most U.S. and Canadian manufacturers currently working through similar GHS implementations. The final regulation appears to be very similar to the proposed regulation that was published last August, and these changes appear to align for the most part with U.S. HCS 2012, as well as the UN GHS model. The inclusion of Canadian-specific elements is also not a surprise. The clarification on certain additional elements (i.e., combustible dusts) is of benefit to industry participants that have struggled with this aspect of U.S. HCS 2012 implementation. The flexibility to comply with HPR now or by June 1, 2017, is also a relief for companies struggling to meet GHS implementation requirements for this year for other regions (i.e., June 1, 2015, for U.S. HCS 2012 and European Union Regulation (EC) No 1272/2008, Classification, Labeling and Packaging of Substances and Mixtures (CLP)). The key reminder to companies is the need to ensure proper attention is paid to the development of compliant SDS and labels in accordance with the country-specific standards.


 
BERGESON & CAMPBELL, P.C.
2200 Pennsylvania Avenue, NW, Suite 100W
Washington, D.C. 20037
202-557-3800 • 202-557-3836 (fax) | lawbc.com
Contact • Twitter
 
Privacy Policy | Terms of Use | Cookie Policy | Attorney Advertising | Trademarks
©2020 Bergeson & Campbell, P.C.
All Rights Reserved.