Canada Delays GHS to Consider CBI Change

Canada has delayed GHS implementation in order to consider an industry amendment to the Hazardous Products Regulations (HPR) regarding the process for protecting confidential business information (CBI).

The government has published its rationale in the Canada Gazette Part II, following last week's email telling stakeholders it was delaying for a year the 1 June deadline for manufacturer and importer safety data sheets (SDS) and labels to comply with the updated Workplace Hazardous Materials Information System (WHMIS 2015).

The later transition date will allow it "to determine whether stakeholders can reach the consensus on recommending a potential amendment to the HPR to implement industry’s proposal".

The issue at hand relates to the requirement under the HPR that SDSs disclose the concentrations, or concentration ranges, of ingredients in the product that present health hazards.

This information is often considered CBI. To protect that data, regulated parties must file an application with Health Canada under the Hazardous Material Information Review Act (HMIRA) and pay a fee. Thousands of such claims are expected in the run up to GHS implementation.

This issue has been raised in the past under the Regulatory Cooperation Council (RCC) as an inconsistency between the US and Canada's hazcom schemes. The former's approach allows suppliers to self-declare information as CBI, with no application or verification process.

Canada says that industry has proposed an approach that would allow for CBI protection without the "burden and cost" of a HMIRA application. And it says that while this has been "discussed with other stakeholders and has received some support", there was insufficient time before the 1 June 2017 transition deadline to conclude consideration of the issue.

The only way to resolve these discussions prior to the filing of thousands of claims, it added, was to delay implementation.

Proposal consultation

According to the Gazette notice, an industry proposal to use prescribed concentration ranges was discussed with stakeholders in late 2016 and early 2017. And there was "general agreement" among the industry, labour, employers and regulators that this "might be acceptable to all parties under certain circumstances".

But labour representatives raised issues relating to the protection of sectors excluded from WHMIS – like consumer products and manufactured articles – and the protection of ingredients that are carcinogens, mutagens, reproductive toxins and respiratory sensitisers (CMRs).

They are seeking concessions on these issues before backing the proposal. And labour representatives are not in favour of the extension, given that the issues related to product sectors and CMRs remain unresolved. "They expressed that they appreciate the current system that exists for the protection of CBI and would prefer to have the discussions of the issues conclude before any regulatory amendments are made," says the government notice.

Some employers and regulators have also raised concerns that employers will only have three months to transition, rather than the six months originally scheduled.

Industry, however, strongly supports delaying the implementation, says the government. And distributors have also supported the extensions.

Health Canada says it will provide support to employers through guidance on proactive preparation.