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Strictly Confidential (NOT) – SDS Ingredient Disclosure & CBI

By August 10, 2015January 29th, 2020Regulations, OSHA HazCom

The program to harmonize the Canadian WHMIS 2015 regulations and the US HCS2012 extends beyond adopting elements of the UN GHS. Unfortunately not all the differences can be removed, but the effort has led to some changes of which importers and suppliers need to be aware. Since the majority of the differences affect Canadian suppliers and importers (with the implications flowing to US suppliers to Canada), Health Canada has prepared a Guidance document, recently shared with CACD (Canadian Association of Chemical Distributers), on “Disclosure of Ingredient Concentrations and Concentration Ranges on Safety Data Sheets.” The document, dated July 31, 2015, is expected to be available for general distribution soon.

Similar But Different

The GUIDANCE summarizes the WHMIS 2015 requirements and contrasts them with both the previous WHMIS 1988 and current US HCS2012 regulations.

In a nutshell, WHMIS-compliant SDS must disclose “true” – i.e. actual ranges of health-hazard ingredients and cannot optionally use wide ranges as a work-around to avoid the cost/administrative burden of the formal application, under the Hazardous Material Information Review Act/Regulations (HMIRA), for approval to mask trade secrets.

So, in effect, the WHMIS 1988 broad ranges can no longer be used at the Supplier’s discretion (e.g. an ingredient present at 12.5% +/- 0.5% could previously, under WHMIS 1988, have been listed on the msds as “7- 13%;” or as “10-30%”).

Under WHMIS 2015, an SDS must disclose the ingredient as being present at “12- 13%”. Use of a range requires that documentation exist to show that it’s a true variability based on formulation/process data.

The WHMIS 2015 approach is analogous to that in HCS 2012.

What Needs to be Disclosed

WHMIS 2015 potentially does not require disclosure of as many ingredients as did WHMIS 1988.

WHMIS 1988 had 4 categories of ingredients that must be disclosed in a mixture:

  • those that were themselves “controlled products” – i.e. met criteria for any of the defined physical or health hazards;
  • those that were listed (“IDL”) in the regulations, despite the fact that they might not classify as hazardous themselves;
  • any that were “reasonably” believed to be harmful; and
  • any whose toxicological properties were “unknown”

WHMIS 2015 only requires disclosure, subject to cut-off values, of ingredients with health hazards.

Again, analogous to HCS2012.

Protect Workers First – Then Protect Suppliers

WHMIS 1988 required the classification and hazard information on an msds/label to be based, if possible, on the properties of the mixture itself.

Considering the example above, if the Supplier had test data/ professional justification to classify the product “as formulated” (i.e. hazardous ingredient at 13%), then that information could form the basis for the details on the msds, despite listing a potential concentration of either as low as 7 or as high as 30%. Similarly if the classification was based only on the properties of the ingredient(s), using professional judgement, the actual concentration could be used.

For another aspect of this, see the author’s January 2014 Blog on “(M)SDS Use & Abuse”:

WHMIS 2015 & HCS 2012 require that if a range is used, the classification and information for a health hazard must reflect the maximum of the range shown for the ingredient. So the hazardous properties disclosed, in the above example, would have to be based on 30%.

CBI

Things trend to disharmony when the primary objective is to maintain trade secret information. HCS 2012 still allows Suppliers to unilaterally declare information as Confidential Business Information (CBI). WHMIS 2015 maintains the previous restriction that requires a Supplier (or employer, if applicable) to apply to the government under the HMIRA process before non-disclosure or masking is permitted. Consequently a US exporter or a Canadian Supplier will have to pay the fee and obtain a file number to use an SDS that doesn’t follow the above disclosure requirements.

If the application includes disclosure, but at a broader range than the “true concentration range,” the broader range must still be narrow enough that the classification would not change if the product had actually contained the broader range.

Oh, How We Could Harmonize . . .

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