Canada Consults on Changes to Confidentiality Protection Under CMP

The Canadian government is consulting on changes to how it manages confidential business information (CBI) under the Chemicals Management Plan (CMP).

The document, "Proposed approach to promote transparency in Chemicals Management Plan risk assessment activities", outlines steps aimed at striking "an appropriate balance between transparency and industry’s right to protect confidential information".

The government says it wants to minimise the scope, frequency and duration of confidentiality claims. This, it says, will help it publish "robust rationale" for its risk assessment decisions, and increase transparency to the public.

Significant aspects of the draft approach raised by stakeholders include:

the possibility for CBI claims to be reviewed after a ten-year period;

a potential re-evaluation of ‘masked name’ rules, used in cases where the substance identity is deemed confidential; and

a proposed review of how the government may release confidential information in different forms.

The government also says it will look for alignment opportunities with the US EPA on the process for reviewing the claims. The new TSCA requires increased substantiation for CBI claims and requires most to be reviewed and re-substantiated every ten years, although the EPA has yet to issue a draft rulemaking as to how it will implement all of these new mandates.

Comments on the proposed approach will be accepted until 30 June.

Views on CBI

W Scott Thurlow, legal counsel and director of chemicals management at the Chemistry Industry Association of Canada (CIAC), said the protection of business sensitive information is an important condition to industry interactions with government and that the trade group "will look at these proposed changes very closely".

"CIAC will work to ensure that the right balance exists between the information that the government needs to make informed regulatory decisions and protecting against the business implications that comes with the release of certain types of information."

Muhannad Malas, toxics programme manager at NGO Environmental Defence, told Chemical Watch that the existing confidentiality provisions under the CMP result in a lack of transparency in the scheme, particularly with regard to new chemicals.

For example, he said, when the government conducts a risk assessment for a new substance not on the Domestic Substances List (DSL), the public has no way of knowing the assessment is taking place until after it is completed and a decision has been made as to how that substance should be regulated.

But the proposed approach, he said, does not appear to address this concern.

And even the changes that the NGO would view as improvements over the current CBI approach are proposed to be limited by exceptions. This "raises some concern on how effective these improvements will be", he said.

Mr Malas said that many of the issues with existing CBI provisions will only be solved through a law reform or improvement to the Canadian Environmental Protection Act, 1999 (Cepa).

Cepa is currently undergoing a parliamentary review that may see it amended for the first time since its enactment. Environmental Defence was among the groups to testify before the Standing Committee on Environment and Sustainable Development – which is overseeing the review – to advocate for increased disclosure of confidential information, among other changes.

A committee report is expected to be tabled in Parliament by the month’s end.