Proposed Amendments to Canada’s HPR

WHMIS 2015 LogoCanada initially adopted UN GHS with the publication of the Hazardous Products Act (HPA) and Hazardous Products Regulations (HPR) in 2015. Under the previous, Controlled Products Regulations (CPR) there was a provision that allowed concentration ranges to be used on MSDSs however this was not retained in the HPR. Since the concentration associated to ingredients that have health hazards and contribute to the classification of the material must be disclosed on the SDS this presents a challenge to suppliers who wish to protect the concentrations of the ingredients in their materials as confidential business information (CBI). The steps required to legally protect the concentration of the ingredients on an SDS in Canada include applying for permission to do so with Health Canada under the provisions of Hazardous Materials Information Review Act (HMIRA) and also payment of associated fees. Industry has provided feedback that this will be expensive, the number of HMIRA claims will increase substantially and this is also different than the CPR requirements. Industry has proposed that the prescribed concentration ranges be permitted in the HPR so that HMIRA was not the only mechanism to protect CBI. Health Canada indicates that allowing prescribed concentration ranges means closer alignment with the US requirements for ingredient disclosure, and also the same level of protection as was available under the CPR and still reduces the burden on all parties. Let’s have a look at what the proposed amendment specifically includes:

There are provisions for two scenarios:

Concentration rangematerial or substance always present at the same concentration – in this scenario either the actual concentration OR one of the concentration ranges provided can be provided.

Concentration rangematerial or substance not always present at the same concentration – in this scenario one of the following must be provided - the actual concentration range, one of the concentration ranges provided in the HPR or in the event that the actual concentration range of the ingredient spans several of the concentrations provided in the HPR.

In all scenarios where a concentration range other than the actual concentration is provided on the SDS it must be indicated with a statement that the actual concentration range is withheld as a trade secret immediately following the range.

Here is a side by side comparison of the proposed amendment and the current regulations:

Proposed HPR Amendments

Regulations Amending the Hazardous Products Regulations (Proposed)

1 Section 4.5 of the Hazardous Products Regulations (see footnote 3) is replaced by the following:

Concentration range — material or substance always present at the same concentration

4.4.1 (1) If the concentration of a material or substance in a hazardous product is required to be provided on a safety data sheet and the material or substance is always present at the same concentration, the safety data sheet must provide:

(a) the actual concentration of the material or substance in the hazardous product; or

(b) one of the concentration ranges set out in subsection (3) within which the actual concentration of the material or substance in the hazardous product falls.

Actual concentration within more than one concentration range

(2) For the purpose of paragraph (1)(b), if the actual concentration of a material or substance in a hazardous product falls within more than one of the concentration ranges set out in subsection (3), any one of those ranges may be provided on the safety data sheet.

Concentration ranges

(3) For the purposes of paragraph (1)(b) and subsection (2), the concentration ranges are the following:

(a) from 0.1 to 1%;
(b) from 0.5 to 1.5%;
(c) from 1 to 5%;
(d) from 3 to 7%;
(e) from 5 to 10%;
(f) from 7 to 13%;
(g) from 10 to 30%;
(h) from 15 to 40%;
(i) from 30 to 60%;
(j) from 45 to 70%;
(k) from 60 to 80%;
(l) from 65 to 85%; and
(m) from 80 to 100%.

Statement — trade secret

(4) If the safety data sheet provides a concentration range further to paragraph (1)(b), it must also provide, immediately following the concentration range, a statement to the effect that the actual concentration is withheld as a trade secret.

Concentration range — material or substance not always present at the same concentration

4.5 (1) If the concentration of a material or substance in a hazardous product is required to be provided on a safety data sheet and the material or substance is not always present at the same concentration, the safety data sheet must provide

(a) the actual concentration range of the material or substance in the hazardous product;

(b) one of the concentration ranges set out in subsection (3) within which the actual concentration range of the material or substance in the hazardous product falls entirely; or

(c) if the actual concentration range of the material or substance in the hazardous product is equal to or greater than 0.1% but less than or equal to 30%, and the actual concentration range does not fall entirely within any of the concentration ranges set out in subsection (3), a concentration range that is created by combining up to three consecutive ranges from those set out in paragraphs (3)(a) to (g), provided that the combined concentration range does not include any range that falls entirely outside the actual concentration range in which the material or substance is present in the hazardous product.

Actual concentration range within more than one concentration range

(2) For the purposes of paragraph (1)(b), if the actual concentration range of a material or substance in a hazardous product falls entirely within more than one of the concentration ranges set out in subsection (3), any one of those ranges may be provided on the safety data sheet.

Concentration ranges

(3) For the purposes of paragraphs (1)(b) and (c) and subsection (2), the concentration ranges are the following:

(a) from 0.1 to 1%;
(b) from 0.5 to 1.5%;
(c) from 1 to 5%;
(d) from 3 to 7%;
(e) from 5 to 10%;
(f) from 7 to 13%;
(g) from 10 to 30%;
(h) from 15 to 40%;
(i) from 30 to 60%;
(j) from 45 to 70%;
(k) from 60 to 80%;
(l) from 65 to 85%; and
(m) from 80 to 100%.

Statement — trade secret

(4) If the safety data sheet provides a concentration range further to paragraph (1)(b) or (c), it must also provide, immediately following that concentration range, a statement to the effect that the actual concentration range is withheld as a trade secret.

Coming into Force

2 These Regulations come into force on the day on which they are registered.

[42-1-o]

  • Footnote 1
    Order Amending the Order Fixing the Day for the Purposes of Sections 130, 133 and 135 of the Economic Action Plan 2014 Act, No. 1: http://gazette.gc.ca/rp-pr/p2/2017/2017-05-31/html/sor-dors92-eng.php.
  • Footnote 2
    The average cost to process a claim is calculated by dividing the cost (salaries and operational costs) to run the operational program required by the HMIRA by the number of decisions on claims that were issued in one year.
  • Footnote 3
    SOR/2015-17
  • Footnote a
    C. 2016, c. 9, s. 13
  • Footnote b
    S., c. H-3

Hazardous Products Regulations (Current)

Concentration ranges

4.5 If the concentration of a material or substance in a hazardous product is required to be provided on a safety data sheet and the material or substance is not always present at the same concentration, the safety data sheet must provide, in lieu of the concentration of the material or substance, the actual concentration range of the material or substance in the hazardous product.

In case you are familiar with the ranges provided in the CPR, the HPR’s proposed concentration ranges are a little different than what was in the CPR. The HPR includes three additional ranges not found in the CPR – 45-70%, 60-80% and 65-85%. Here is a side by side comparison:

Proposed HPR amendment Concentration Ranges:

(a) from 0.1 to 1%;
(b) from 0.5 to 1.5%;
(c) from 1 to 5%;
(d) from 3 to 7%;
(e) from 5 to 10%;
(f) from 7 to 13%;
(g) from 10 to 30%;
(h) from 15 to 40%;
(i) from 30 to 60%;
(j) from 45 to 70%;
(k) from 60 to 80%;
(l) from 65 to 85%; and
(m) from 80 to 100%.

CPR Range of Concentration

(a) from 0.1 to 1 per cent;
(b) from 0.5 to 1.5 per cent;
(c) from 1 to 5 per cent;
(d) from 3 to 7 per cent;
(e) from 5 to 10 per cent;
(f) from 7 to 13 per cent;
(g) from 10 to 30 per cent;
(h) from 15 to 40 per cent;
(i) from 30 to 60 per cent;
(j) from 40 to 70 per cent; and
(k) from 60 to 100 per cent.

For companies that complied with the CPR, the concentration ranges is nothing new, although there are some new ranges available to be considered if your material had ingredients that fell into the CPR’s 60-100% concentration range.

What will be new in terms of compliance for SDSs is the statement that must be provided immediately following the concentration range. With some authoring systems needing configured or worse than that, not being flexible enough to add a statement with the concentration this could present a bit of a challenge and is definitely something to plan for and watch.

For further information consult the Canada Gazette.