The Government's Response to the Standing Committee's Recommendations on the WHMIS Exclusions

May 12, 1993

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On May 12, 1993, the federal government responded to the report of the Standing Committee on Consumer and Corporate Affairs and Government Operations on the exclusions from the WHMIS.

The Standing Committee reviewed the recommendations contained in the report of tripartite sectoral committees and heard testimony from various stakeholders. The Standing Committee subsequently tabled its report of recommendations in the House of Commons on April 27, 1992.

The Government has examined the report of the Standing Committee and is supportive of its recommendations. In some areas where consensus has not yet been achieved by the stakeholders, the Government's response is that they be given sufficient additional time to reach agreement. The text of the Government's response follows.

I. Overview

The Workplace Hazardous Materials Information System (WHMIS) is a national system whose prime purpose is to protect the safety and health of the Canadian worker. The System ensures that employers have adequate information about hazardous materials being used in the workplace so that they can meet their legal obligations under occupational safety and health legislation to provide a safe workplace. WHMIS addresses workers' right-to-know the hazards of workplace chemicals and provides workers with access to the hazard information they need to protect themselves.

Reducing the number of accidents and illnesses in Canadian workplaces has a commensurate effect on social costs by decreasing injuries, illnesses and disabilities. In addition, WHMIS results in a reduction of property damage and production losses.

WHMIS is an example of co-operative federalism. It is a unified national approach which addresses an area of concern to all Canadians and has been developed on a consensus basis involving industry, labour and federal, provincial and territorial governments.

When Parliament passed the WHMIS legislation in 1987, it did so with the understanding that the consensus approach would be maintained when deciding which changes should be made to the System through regulation. Regulations under the Hazardous Products Act concerning WHMIS may only be made on the recommendation of the Minister of Consumer and Corporate Affairs after consultation by the Minister with the government of each province and territory, as well as with organizations representative of workers, suppliers and employers. This consultation is realized through the WHMIS Current Issues Committee which provides the forum for ongoing tripartite consultation in WHMIS with the WHMIS stakeholders, i.e., representatives from labour, industry and federal, provincial and territorial governments.

To prevent a delay in implementing the System, certain products were initially excluded from WHMIS because in many cases, significant safety information was already being provided to workers under provisions of current legislation.

The federal legislation which established WHMIS required that these product exclusions be reviewed by a Committee of Parliament with respect to the need for their continuance. The Ministers responsible for the legislation covering the excluded products were proactive and established tripartite sectoral committees to examine the exclusions in anticipation of the Standing Committee review. The consensus approach, which characterized the development of WHMIS, involving industry, labour and federal, provincial and territorial governments, has thus been reinforced through the sectoral committees which reviewed the exclusions from WHMIS. The sectoral committees achieved significant consensus and their reports were submitted to the Standing Committee on Consumer and Corporate Affairs and Government Operations. The Standing Committee reviewed the recommendations contained in the report of the sectoral committees and made its own recommendations.

Through its recommendations, the Standing Committee has recognized the value of both the consensus process and the ongoing use of the Current Issues Committee as a consultative forum. The Standing Committee not only endorsed the sectoral committee consensus recommendations, but also recommended that in those areas where consensus was not reached, all stakeholders should continue to work toward achieving consensus solutions.

The government strongly supports the consensus process in WHMIS and recognizes the value of the Current Issues Committee as an ongoing forum for consultation and consensus. In order for the consensus approach to function effectively, all stakeholders must continue to be supportive of and committed to the consensus approach. The government is committed to making all necessary legislative and regulatory changes.

II. Response To Specific Recommendations

Recommendation 1: That the federal government accept and implement the consensus recommendations with respect to food, flavours and fragrances, pest control products, radioactive materials, wood or products made of wood, tobacco or products made of tobacco and manufactured articles, reported by the sectoral committees that reviewed the exclusions to the Workplace Hazardous Materials Information System (WHMIS).

The government accepts the Standing Committee recommendation and agrees with all the sectoral committee recommendations for these products. Consensus was achieved between industry, labour and representatives from federal, provincial and territorial governments on the sectoral committees' recommendations submitted and agreed to by the Standing Committee.

Food: The tripartite sectoral committee report includes these consensus recommendations: foods intended for consumer use should continue to be exempt from the provisions of Part II of the Hazardous Products Act; and food ingredients, including food additives and foods which are physical mixtures, intended for use in the workplace, should be made subject to the provisions of the Hazardous Products Act;

Flavours and Fragrances: The consensus recommendation of the tripartite sectoral committee includes that the provisions of the Hazardous Products Act relating to the disclosure of chemical identities of flavours and fragrances be maintained but the generic chemical identities of the ingredients be listed with greater precision;

Pest Control Products: The consensus of the sectoral committee was that the exclusion for pest control products be retained and that WHMIS requirements be established under the Pest Control Products Act. The classification system under the two areas of legislation will be harmonized in their application to pest control products to ensure maximum safety and conformity of labelling.

Radioactive Materials: The sectoral committee involving industry, labour and the occupational safety and health regulators agreed that the exclusion should be maintained and that regulatory change be implemented by the Atomic Energy Control Board to provide WHMIS-equivalent requirements. Generally, worker safety and health are protected to a greater extent through the provisions of the Atomic Energy Control Act and Regulations as they are more stringent than the WHMIS requirements. In certain low-risk areas where WHMIS requirements exceed existing Atomic Energy Control Board requirements, hazard information and training will be implemented to ensure that WHMIS-equivalent requirements are met. Regulations to the Hazardous Products Act will be amended to include special rules for the non-radiological component of mixtures.

Wood: The sectoral committee recommended that the exclusion should be removed for wood or products made of wood, except for logs. While WHMIS labelling will not be required for most wood products, material safety data sheets with additional safety and health information to protect workers will be provided where necessary.

It is understood that to assist all Canadian producers, industry associations will develop material safety data sheets for Canadian wood, as necessary. This will enable suppliers to more easily meet the requirement that material safety data sheets be provided since it is generally more efficient for the wood product supplier to provide a material safety data sheet than for the employer.

Tobacco: In supporting the sectoral committee recommendation, the Standing Committee recommended that the current exclusion for tobacco or products made of tobacco be removed. Scientific judgement indicates that handling of tobacco, or products made of tobacco, in the workplace will not pose a threat to workers' safety and health. Therefore, no additional WHMIS requirements will result.

Manufactured Articles: This recommendation endorses the sectoral committee consensus that the exclusion for manufactured articles should be maintained but that the scope of the exclusion should be narrowed. This will provide workers with additional hazard information.

Recommendation 2: That WHMIS-type labelling and material safety data sheets be instituted for explosives.

This recommendation ensures that WHMIS-type information in the form of material safety data sheets and labelling will get to workers handling or using explosives. However, partly because of existing internationally recognized labelling for transport, only the intent of WHMIS and not the existing formats can be adopted.

Recommendation 3: That explosives continue to be excluded from the provisions of Part II of the Hazardous Products Act and that the recommendations of the sectoral committee on explosives be implemented under the Explosives Act and Regulations.

Recommendation 4: That substances and articles that are explosives within the meaning of the Explosives Act not be classified as waste.

The government accepts these recommendations. The sectoral committee recommendations ensure that the explosives industry will be in full compliance with the principles of WHMIS. In addition, the government will establish a tripartite working group with representation from industry, labour and occupational safety and health regulators to assist the government in implementing the recommendations of the sectoral committee. To minimize differences and maintain consistency, where appropriate, the hazard criteria and requirements for material safety data sheets from the Hazardous Products Act will be incorporated.

Recommendation 5: That medical devices intended for use in the workplace continue to be excluded from the provisions of Part II of the Hazardous Products Act for a period of one year, during which time representatives of labour, industry and government should continue discussions with a view to reaching a consensus on the application of the Workplace Hazardous Materials Information System, or a modified version thereof, to such devices.

The government accepts this recommendation which will provide all stakeholders with the opportunity to reach consensus regarding this issue.

Recommendation 6: That medical devices intended for consumer use continue to be excluded from the provisions of Part II of the Hazardous Products Act.

The government accepts this recommendation which represents the consensus reached at the tripartite sectoral committee.

Recommendation 7: That the federal government accept and implement the recommendations with respect to drugs, reported by the Food, Drug, Cosmetic, Device Sectoral Committee.

The government accepts this recommendation. The tripartite consensus recommendations were made to ensure the safety of workers and as a result, most packaged drugs sold by the manufacturer, which are intended for consumer use, will continue to be exempt from the provisions of Part II of the Hazardous Products Act. Raw materials used in the manufacture of drugs will be subject to the provisions of the Hazardous Products Act. Disinfectants, other than those applied by topical application, compressed gases that are drugs and cytotoxins will be subject to the requirements for material safety data sheets under the Hazardous Products Act.

Recommendation 8: That cosmetics containing controlled products and used in the beauty industry workplace continue to be excluded from the provisions of Part II of the Hazardous Products Act for a period of one year, during which time representatives of labour, industry and government should enter into discussions with a view to reaching a consensus on the application of the Workplace Hazardous Materials Information System, or a modified version thereof, to the beauty industry workplace.

Recommendation 9: That cosmetics containing controlled products and used in the beauty industry workplace be subject to the provisions of Part II of the Hazardous Products Act if, after one year, the parties have not reached an agreement as to the application of WHMIS to the beauty industry workplace.

The government accepts these recommendations. These recommendations will provide all stakeholders with an opportunity to reach consensus concerning the application of WHMIS to cosmetics containing controlled products and used in the beauty industry workplace.

Recommendation 10: That the federal government accept and implement the recommendations with respect to cosmetics, reported by the Food, Drug, Cosmetic, Device Sectoral Committee.

The government accepts this recommendation. The tripartite sectoral committee recommended that cosmetics intended for consumer use continue to be exempt from the provisions of Part II of the Hazardous Products Act and that raw materials used in the manufacture of cosmetics, and unpackaged volumes of finished products should be subject to the requirements for labelling and material safety data sheets under the Hazardous Products Act.

Recommendation 11: That the exclusion for products, materials or substances included in Part II of Schedule I and packaged as consumer products (consumer-restricted products) be removed from section 12 of the Hazardous Products Act.

Recommendation 12: That the federal government accept and implement the consensus recommendations with respect to consumer-restricted products packaged as consumer products, reported by the General Exclusions Sectoral Committee and in correspondence (March 1992) received by the Standing Committee of Consumer and Corporate Affairs and Government Operations from the Minister of Consumer and Corporate Affairs.

The federal government accepts these recommendations which reflect the agreement between suppliers, retailers, some employers, workers and representatives from federal, provincial and territorial governments. These recommendations will ensure that hazardous consumer products are not subject to dual hazard labelling requirements under the Consumer Chemicals and Containers Regulations and WHMIS, but that hazard information is provided for consumer products used in the workplace.

Recommendation 13: That the application of the Workplace Hazardous Materials Information System to consumer-restricted products stored in warehouses and storerooms be deferred for a period of one year in order to give labour, industry and government an opportunity to reach an agreement on the amount of hazard information to which workers in warehouses and storerooms should have access and the manner in which this information could be made available to them.

The government agrees that workers in warehouses and storerooms of retail outlets should have access to adequate hazard information for consumer products to protect themselves in the event of leaks or spills. The tripartite Current Issues Committee is at present working to reach an agreement on the extent of hazard information necessary for such products. The federal government will ensure that consultation will continue in order to reach agreement on this issue.

Recommendation 14: That the exclusion for hazardous waste be removed from section 12 of the Hazardous Products Act.

Recommendation 15: That the federal government accept and implement the recommendations with respect to hazardous waste, reported by the General Exclusions Sectoral Committee.

Recommendation 16: That the full participation of all stakeholders be obtained in reaching a solution to the application of the Workplace Hazardous Materials Information System to biohazardous/biomedical waste.

The federal government accepts all of the above recommendations. The recommendations of the Standing Committee reflect the efforts of the consensus process involving industry, labour and representatives from federal, provincial and territorial governments.

All members of the tripartite sectoral committee supported the removal of the waste exclusion and the application of WHMIS to all waste except waste destined for municipal landfill, sewage and scrap metal.

All stakeholders will be afforded the opportunity to achieve consensus to reach a solution to the application of WHMIS to biohazardous/biomedical waste. The government believes that the Current Issues Committee should continue their efforts regarding this issue.