Trade Secrets

• WHMIS Trade Secret Mechanism - Overview
• What can be claimed
• Criteria for assessing validity of claim
• Duration of exemption
• MSDS and label requirements
• Filing a trade secret claim
• Regulatory framework (with links)

Whmis Trade Secret Mechanism - Overview:

WHMIS includes a mechanism for ruling on claims for exemption from disclosure of confidential business information on labels and MSDSs as well as appeals to these rulings. Balancing workers' right-to-know with suppliers' need to protect genuine confidential business information was a fundamental consideration during the development of WHMIS.

Chemical identities and other information required by the Hazardous Products Act (HPA) and Canada Labour Code (CLC) can be claimed as a trade secret under the Hazardous Materials Information Review Act (HMIRA). The HPA is administered by Health Canada and the CLC is administered by Labour Canada. The trade secret mechanism is administered by the Hazardous Materials Information Review Commission.

What Can Be Claimed:

What can be claimed as a trade secret is specified in section 11 of the Hazardous Materials Information Review Act (HMIRA):

Suppliers - A supplier may file a claim for exemption from disclosing:

(a) the chemical identity or concentration of any ingredient of a controlled product, or
(b) the name of any toxicological study that identifies any ingredient of a controlled product.

Employers - An employer may file a claim for exemption from disclosing:

1. the chemical identity or concentration of any ingredient of a controlled product,
2. the name of any toxicological study that identifies any ingredient of a controlled product,
3. the chemical name, common name, generic name, trade name or brand name of a controlled product, or
4. information that could be used to identify a supplier of a controlled product.

Criteria For Assessing Validity Of Claim:

The Hazardous Materials Information Review Regulations specify the four criterion against which the validity of a trade secret claim is assessed:

1. information must be known only to designated persons;
2. the claimant must have taken reasonable care to maintain confidentiality of information;
3. the information must have economic value to the claimant or competitors; and
4. the information must represent a significant development cost
   
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Duration Of Exemption:

The exemption periods are as follows:

1. Filing of a claim - for the period from the date the claim is filed to the final disposition of proceeding on the claim;
2. Ruling on claim - where the claim is determined to be valid, for a period of three years following the date at which proceedings in relation to the claim were complete.

MSDS And Label Requirements (for Products Which Are The Subject Of A Trade Secret Claim):

Generic in lieu of specific chemical identity - As specified in section 16 of the Hazardous Products Act, where a supplier is exempt from disclosing a specific chemical identity, "the supplier shall disclose on the MSDS or label the generic chemical identity of the controlled product or ingredient with as much precision as is consistent with the exemption."

Secondary supplier exemptions - Section 8.2 of the Controlled Products Regulations (CPR) sets out the obligations of a secondary supplier where the primary supplier has filed a claim for exemption or is exempted from disclosing information under the Hazardous Materials Information Review Act (HMIRA).

Information upon filing - Section 26 of the CPR sets out the requirement to disclose on the MSDS and, where applicable, the label, upon filing:

1. the date that the claim for exemption was filed; and
2. the registry number assigned to the claim by the Hazardous Materials Information Review Commission.

Information upon notice of decision - Section 27 of the CPR sets out the information to be disclosed upon notice of a decision:

1. a statement that an exemption has been granted;
2. the date of the decision granting the exemption;
3. the registry number
4. the generic chemical identity

Filing A Trade Secret Claim:

The Hazardous Materials Information Review Act (HMIRA) establishes a Commission to rule on claims for exemption; assess the MSDS or label to which a claim relates; and administer an appeal process to these rulings. The Hazardous Materials Information Review Commission is an independent, quasi-judicial body whose President reports to Parliament through the Minister of Health Canada.

Specifically, under the authority of the HMIRA and the provincial and territorial occupational safety and health acts, the HMIRC is an administrative agency charged with carrying out the following mandate:

• register claims for trade secret exemptions under WHMIS (for which registry numbers are issued);
• issue decisions on the validity of claims for exemption using prescribed regulatory criteria;
• make decisions on the compliance of MSDSs and labels, for products subject to trade secret exemption requests, within WHMIS requirements as set out in the Hazardous Products Act and Controlled Products Regulations and various provincial and territorial occupational safety and health acts; and
• convene independent, tripartite boards to hear appeals from claimants or affected parties on decisions and orders issued by the Commission; website: http://www.hmirc-ccrmd.gc.ca/

Hazardous Materials Information Review Commission
427 Laurier Avenue West, 7th floor
Ottawa, Ontario
K1A 1M3
Tel: (613) 993-4331 Fax: (613) 993-4686
Email: hmirc-ccrmd@hc-sc.gc.ca

Regulatory Framework:

Hazardous Materials Information Review Act (HMIRA): specifies the information which may be the subject of a trade secret claim. The HMIRA also establishes a Commission to rule on claims for exemption, assess the MSDS or label to which a claim relates and to administer an appeal process to these rulings;
http://canada.justice.gc.ca/en/laws/H-2.7/index.html

Hazardous Materials Information Review Regulations: specify the criteria used to assess the validity of a trade secret claim and set out the filing fees for claims and appeals;
http://canada.justice.gc.ca/en/laws/H-2.7/SOR-88-456/index.html

Hazardous Materials Information Review Act Appeal Board Procedures Regulations:
http://canada.justice.gc.ca/en/laws/H-2.7/SOR-91-86/index.html

Hazardous Products Act: where a supplier is exempt from disclosing a specific chemical identity, the HPA requires the disclosure of the generic chemical identity;
http://canada.justice.gc.ca/en/laws/H-3/index.html

Controlled Products Regulations (CPR): specify the information which must be disclosed on the supplier MSDS and label which are the subject of a trade secret claim (a) upon the filing of the claim and (b) subsequent to the ruling on the claim;
http://canada.justice.gc.ca/en/laws/H-3/SOR-88-66/fulltoc.html

Occupational safety and health (OSH) acts: in each of the OSH jurisdictions, specify requirements to which an employer must adhere analogous to the supplier requirements specified under the CPR.