A key difference that distributors of imported hazardous products are struggling with is the treatment of products that require re-labelling with Canadian-compliant labels.
WHMIS 1988 and WHMIS 2015 both require a “supplier” (seller) to ensure that products have compliant labels- i.e. as outlined in the respective “controlled” or “hazardous” products regulations. Manufacturers and Distributors, as suppliers are usually comfortable in complying when they are preparing/consolidating shipments of products initially labelled in compliance with the Canadian regulations for GHS-based required wording, pictograms, etc.
However, when receiving imports other mandatory features such as bilingual English/French text, a Canadian Supplier name/address and “non-GHS” classifications may not always be present.
Do It Here or Do It There?
Ideally the foreign supplier will have the instruction and capability to address Canadian label requirements when fulfilling the order from a Canadian customer- be it the end user or a distributor.
If the foreign supplier is unable to reliably provide WHMIS-compliant labels, the Canadian importer may supply the labels for application before shipment.
Practically this may not always be possible depending on the sophistication of the foreign supplier, the volume ordered or the uniqueness of the product. The Canadian distributor may bring non-compliant product to their facility/agent and re-label the product before delivery to the final customer who will have employees handling and/or using the product.
The above options are possible under both the WHMIS 1988 and WHMIS 2015 regulations.
The Plot Thickens
A third option was available under WHMIS 1988 which most suppliers found most expedient, particularly for skid-load packages, and the only practical option when delivery requirements necessitated direct delivery to the user location- bypassing the distributor/importer’s facility.
The section in the WHMIS 1988 version of the Hazardous Product Act (HPA) dealing with labels required them to be applied to each container upon sale or import unless (HPA 14. (2)(a)(ii)) “the person to whom the controlled product is sold undertakes in writing to apply a label to the inner container“.
This provision is no longer contained in the equivalent sections (HPA 13.(1)(b) re “sell” & 14.(b) re “import”) of the current WHMIS 2015 legislation.
Lack of support for the customer labelling option of WHMIS 1988 is also reinforced in Health Canada’s 2016-12 “WHMIS 2015 Supplier Requirements Guide” (“Technical Guidance on the Requirements of the Hazardous Products Act and the Hazardous Products Regulations” – e.g. page 204 & 207).
It would appear that relying on the customer to label each container could be considered non-compliant. Importers may wish to review the situation with their legal counsel or petition Health Canada.
For re-instatement of the previous HPA 14.2(a)(ii) option before customers encounter issues with Labour Inspectors as the transition period begins at the “employer” (user) level.