WHMIS Regulatory Framework

• The WHMIS Regulatory Framework - Overview
• Regulatory Framework:
  • Supplier MSDS and labelling requirements
  • Employer WHMIS requirements
  • Trade secrets
• Regulatory Amendment History
  • Controlled Products Regulations
  • Ingredient Disclosure List
• Regulatory Amendments - Summary

The WHMIS Regulatory Framework - Overview

Labour policy in Canada is primarily a provincial responsibility. Provincial paramountcy in labour policy making is a result of the 1925 decision of the Judicial Committee of the Privy Council in the case of Toronto Electric Commissioners v. Snider et al. The Committee declared the federal government's Industrial Disputes Investigation Act to be ultra vires the Parliament of Canada. It was the Committee's view that labour relations fell within the property and civil rights power of the provincial governments.

In July 1981, federal and provincial occupational and health (OHS) regulatory agencies suggested to the Canadian Association of Administrators of Labour Legislation that a nationally consisten information system for hazardous workplace materials be established. To implement the system, provincial OHS legislation could control hazardous materials in the workplace. However, federal legislation was necessary to provide needed information, particularly for imported materials. The federal Hazardous Products Act was identified as the most suitable legal vehicle.

Bill C-70, (Second Session, thirty-third Parliament, 35-36 Elizabeth II, 1986-87), an Act that established the WHMIS requirements of the HPA, amend the Canada Labour Code and to enact the Hazardous Materials Information Review Act and to amend other Acts in relation thereto, was passed by the House of Commons June 30, 1987. The WHMIS requirements of the HPA and associated Controlled Products Regulations came into effect on October 31, 1988.

Regulatory Framework:

Supplier MSDS and labelling requirements

Hazardous Products Act (HPA): Section 13 and 14, respectively, of the HPA requires suppliers/importers of hazardous workplace materials to transmit material safety data sheets (MSDSs) and to label containers as a condition of sale and importation. Section 13 of the HPA also sets out which ingredients, (subject to the trade secret provisions under the Hazardous Materials Information Review Act), must be disclosed on the MSDS. Section 12 lists the product categories which are excluded from the supplier label and MSDS requirements of the HPA.

Controlled Products Regulations (CPR): The CPR specify the types and arrangement of information on MSDSs, the form and content of supplier labels, conditions for exemption and the criteria that define a controlled product.

Ingredients Disclosure List (IDL): The IDL is a list of chemicals identified in alphabetical order by their common name. The corresponding Chemical Abstracts Service (CAS) registry number is provided where available. Each chemical has a corresponding concentration "cut-off" of either 0.1% or 1.0% (weight/weight). Ingredients included in the IDL are one of the four categories of ingredients whose identity and concentration must be disclosed on an MSDS if found in a controlled product above the concentration cut-off (see subparagraph 13(a)(ii) of the HPA).

The criteria used to determine whether to include an ingredient in the IDL were broader than the criteria used for defining what is a WHMIS controlled product. Substances that are not considered hazardous enough to be controlled products in themselves but are considered health hazards have been included in the IDL as well as substances that do meet the criteria in the Controlled Products Regulations (CPR). Therefore, although a chemical included in the IDL which is not itself a controlled product is not subject to the HPA label nor MSDS requirements, when included in a controlled product above its cut-off concentration, its identity and concentration must be disclosed on the MSDS.

In addition to the potential to cause adverse health effects, the extent to which the ingredients were or are being put to commercial use was also a determining factor affecting inclusion in the IDL. The IDL, however, is far from exhaustive in listing ingredients that meet the criteria in the CPR.

Employer WHMIS requirements

Federal and provincial/territorial occupational safety and health (OSH) legislation and regulations: Provincial, territorial and federal WHMIS regulations require employers to ensure that:

1. controlled products used, stored, handled or disposed of in the workplace are properly labelled;
2. MSDSs are made available to workers; and
3. workers receive education and training to ensure the safe storage, handling and use of controlled products in the workplace.

Trade Secrets

The Hazardous Materials Information Review Act (HMIRA) and Regulations - Certain disclosure requirements of the HPA, including MSDS ingredient disclosure, are subject to trade secret provisions under the HMIRA. The HMIRA establishes a Commission to rule on claims and appeals related to exemptions from disclosure of confidential business information.

Regulatory Amendment History (of The CPR and IDL):

Controlled Products Regulations - amendment history:

Amendment No. 1; SOR/88-555, P.C. 1988 - 2453
This amendment clarifies the definition of "outer container" in relation to the exemptions from labelling requirements of outer containers other than in those circumstances where the outer container is the only container of the controlled product; clarifies the exemption from applying the WHMIS label border for a laboratory supply house chemicals; clarifies the requirement to disclose the registry number assigned to a trade secret claim following a decision by the Hazardous Materials Information Review Commission on the validity of a claim for exemption; and provides an exemption to suppliers of controlled products from disclosure requirements for the identity of certain ingredients purchased from an upstream supplier who has received a confidential business information exemption under the Hazardous Materials Information Review Act.

Amendment No. 2; SOR 89-150, P.C. 1989 - 408
This amendment provides certain exemptions from disclosing precise chemical identities and concentrations of fragrance and flavour ingredients and prescribes the information disclosure requirements for applicable products, provides certain exemptions from disclosing precise chemical identities and concentrations of fragrance and flavour ingredients.

Amendment No. 3; SOR/97-543, P.C. 1997 - 1748
This amendment, requested by the Standing Joint Committee on the Scrutiny of Regulations, corrects and updates certain sections of the Food and Drug Regulations, the Medical Devices Regulations as well as the WHMIS Controlled Products Regulations. These corrections consist of clarifications, additions, deletions, corrections of typographical and spelling errors, and other inconsistencies inadvertently introduced in these Regulations.

Amendment No. 4 - SOR/2001-254, P.C. 2001 - 1236, July 12, 2001
This amendment provides special rules for the labelling of, and small quantity exemptions for, non-radioactive, hazardous carrier materials in radioactive mixtures; and, upon the request of the Standing Joint Committee for the Scrutiny of Regulations, provides a greater degree of correlation between the French and English versions in Sections 9(2)(a) and 12(2) and improves clarity in Sections 11(4), 26(2)(a), 26(2)(b) and 32.

Amendment No. 5 - SOR/2004-317, P.C. 2004 - 2199, December 14, 2004
The amendments address issues raised by the Standing Joint Committee for the Scrutiny of Regulations (SJCSR). The amendment to paragraph 26(2)(b) clarifies that the time period for making an "appeal" on a decision in respect of a trade secret claim also includes the time period for the making of an application for judicial review under the Federal Court Act. The amendment to the French version of Schedule I.1, "Physical Containment Requirements for Low Individual or Community Risk Agents", clarifies that the definition in section 1 is not exhaustive; i.e., it is not limited to microogranisms, bacteria, fungui, viruses and parasites.

Ingredients Disclosure List - amendment history:

Following publication in the Canada Gazette Part II on January 20, 1988, and registered as SOR/88-64, the IDL has not been amended and, as of May 2007, no amendments are being contemplated.

Summary of Amendments to the CPR

The following are the amendments to the CPR as summarized in the "Consolidated Index of Statutory Instruments, January 1, 1955 to September 30, 2001", Canada Gazette, Part II, September 30, 2001

Summary of Amendments to the CPR

Section of CPR	Registration	Section of amendment
s. 2, "mixture"	SOR/97-543	s.13(E)
s. 5.1	added, SOR/89-150	s.1
s. 8.1	added, SOR/88-555 repealed, SOR/97-543	s.1 s.14
s. 8.2	added, SOR/88-555	s.1
s. 9	SOR/2001-254	s.1(F)
s. 10.1	added. SOR/2001-254	s.2
s. 11	SOR/2001-254	s.3
s. 12	SOR/97-543 SOR/2001-254	s. 15 s. 4
s. 14	SOR/88-555 SOR/2001-254	s. 2 s. 5
s. 15.1	added, SOR/88-555 repealed, SOR/97-543	s. 3 s. 16
s. 17.1	added, SOR/2001-254	s. 6
s. 19	SOR/2001-254	s. 7
s. 20	SOR/88-555	s. 4
s. 25	SOR/97-543	s. 17
par. 26(2)(b)	SOR/2004-317	s. 1
s. 26	SOR/2001-253	s. 8
s. 27	SOR/88-555 SOR/97-543	s. 5 s. 18
s. 32, "IARC"	SOR/97-543	s. 19(E)
s. 32, "respiratory tract sensitization"	SOR/2001-254	s. 9
s. 32, "skin sensitization"	SOR/2001-254	s. 9
s. 33	SOR/97-543	s. 20(E)
s. 34	SOR/97-543	s. 21
s. 39	SOR/97-543	s. 22(F)
s. 57	SOR/97-543	s. 23(F)
s. 60	SOR/97-543	s. 24(F)
s. 62	SOR/97-543	s. 25
Schedule I	SOR/97-543	s. 26 and 27
Schedule I.1	added, SOR/2001-254	s. 10
Schedule I.1	SOR/2004-317	s. 2(F)
Schedule IV	SOR/97-543	s. 28
Schedule V	SOR/97-543	s. 29 and 30