Businesses who manufacture, distribute, supply, or import hazardous products for use in a workplace in Canada must be compliant with WHMIS 2015. The last date a controlled product with a WHMIS 1988 MSDS/SDS label can be sold by a distributor was August 31, 2018. This means if your business needs to be in compliance with safety regulations for Canada, you must adhere to the new and complete WHMIS 2015 regulation, which has adopted the United Nation’s Globally Harmonized System (GHS) standards.
Canada’s GHS transition took place over a series of incremental phases which were designed to help industry comply more easily with WHMIS 2015. The final phase (phase 3) was completed on December 1, 2018. Now, all manufacturers, importers, and distributors requiring MSDSs/SDSs and labels must be compliant to WHMIS 2015.
Many businesses still have questions about complying with WHMIS 2015. In order to make things a little simpler to understand, ERA Environmental has written up this short article about the frequently misunderstood points of WHMIS 2015 compliance.
Define Your Means of Operation Under The Hazardous Products Act (HPA):
Operators and Responsibilities Under the Hazardous Products Act
Manufacturers: A supplier who, in the course of business in Canada, manufactures, produces, processes, packages or labels a hazardous product and sells it. (Subsection 1(1) of the HPR)
Suppliers: A person who, in the course of business, sells, or imports a hazardous product. Manufacturers, importers, and distributors (of a hazardous product) are considered as “suppliers” under the HPA.
- Importers: An importer is a supplier who brings a hazardous product into Canada but does not sell the product. If an importer does modify a hazardous product that they imported (for example, by repackaging or relabeling it) and subsequently sells the modified hazardous product, then the importer meets the definition of a “manufacturer” under the HPR. (Subsection 1(1) of the HPR)
- Distributors: A Canadian supplier to whom a hazardous product was sold, who resells the hazardous product without modifying it in any way.If a distributor does modify a hazardous product that they purchased (for example, by repackaging or relabeling it) and subsequently sells it, then the distributor meets the definition of a “manufacturer” under the HPR. (Subsection 1(1) of the HPR)
Employers: Ensure that hazardous products are identified (subsection 37(1), OSHA); Obtain or prepare current SDSs for hazardous products and make those SDSs available to various parties (subsection 37(1) and section 38, OSHA and sections 8-14, WHMIS Reg.); Ensure that a worker who is exposed or likely to be exposed to a hazardous product receives instruction and training subsection 42(1), OSHA); and, assess all biological and chemical agents that the employer produces for its own use to determine if they are hazardous products (subsection 39(1), OSHA, section 3, WHMIS Reg.)
More Information for Distributors about WHMIS 2015
The HPA considers Canadian distributors who buy hazardous products, re-labels the hazardous products, and then sell them to be the initial supplier of the hazardous product. In this situation, the Canadian distributor is required to provide his name, address, and telephone number on the label and SDS to be WHMIS 2015 compliant.
Also, prescribed concentration ranges are only to be used to protect the actual concentration or actual concentration range that is considered Confidential Business Information (CBI), and require a statement disclosing the actual concentration (range) has been withheld as a trade secret. Actual concentration ranges can be used and do not require a disclosure statement.
WHMIS Compliance FAQ: Supplier Concerns
If a Canadian Distributor cannot obtain a WHMIS SDS from their Vendor/Supplier, can they use an OSHA GHS SDS in its place or must they re-author?
No, the Canadian distributor must re-author a WHMIS SDS.
If the Supplier’s SDS is an OSHA GHS and the Distributor must re-author, does the Distributor add their name as Supplier or simply as Distributor?
A Canadian distributor who buys a hazardous product, re-labels the hazardous product, and then sells it is the initial supplier of the hazardous product. In this situation, the Canadian distributor must provide their name, address, and telephone number on the label and SDS.
Violations of WHMIS 2015
The full implementation of WHMIS 2015 is required by December 1, 2018 under the HPA and HPR. Violations of the WHMIS standard can result in fines of up to $1,000,000 and two years imprisonment. Similar fines and prison terms may also be handed out at the provincial level and can even lead to seizure of products and stop work orders.
Resources for WHMIS 2015 and SDS Requirements
It’s always helpful to go back to the source material when it comes to regulatory compliance. We hope the above information has been helpful in giving you a clearer picture of what Canada’s adoption of the Globally Harmonized System. If you have further questions, we recommend referring to some of these useful links:
Distributor’s Guide to Transitions to WHMIS: http://whmis.org/documents/Distributors%20Transitioning%20to%20WHMIS%202015_EN.pdf
Hazardous Products Regulations (HPR): http://laws-lois.justice.gc.ca/eng/regulations/SOR-2015-17/FullText.html
Amendment to Section 4.4 & 4.5 of the Hazardous Products Regulations:
This amendment allows the use of prescribed concentration ranges to protect ingredient concentrations and concentration ranges that are CBI without submitting claims for exemption under the HMIRA. These prescribed concentration ranges are spelled out directly in the HPR. The concentrations and concentration ranges of ingredients in the product that present a health hazard could be disclosed on the SDS as either the actual concentration/actual concentration range or one of the prescribed concentration ranges in the amended HPR at http://www.gazette.gc.ca/rp-pr/p1/2017/2017-10-21/html/reg2-eng.html#footnote.54172.
August 29, 2018