Reference Manual for the WHMIS Requirements of the Hazardous Products Act and Controlled Products Regulations

CPR Section 25 - [general]; Manner Of Disclosing Information - "Disclaimers"

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Manner Of Disclosing Information

25. The Information Required To Be Disclosed On A Material Safety Data Sheet, On A Label Of A Controlled Product Or On A Container In Which A Controlled Product Is Packaged Shall Not Be Disclaimed Or Contradicted By Information In Respect Of The Controlled Product That Is

1. not Required Under The Act; And
2. disclosed On The Material Safety Data Sheet, The Label, The Controlled Product Or The Container. [sor/97-543; S. 17]
   

Interpretation / Discussion of Section 25

The prohibition of disclaimers and contradictory statements has been included to ensure that information on containers and MSDSs will not send conflicting messages to users of the product that would lead to confusion about the hazards posed by the product. The prohibition of disclaimer statements was meant to refer to information that directly or indirectly refuted information required on the MSDS. Statements which qualify toxicological test results are allowed under the conditions specified in section13 of the CPR.

The following example of a disclaiming statement is clearly unacceptable:

"Although this product meets the carcinogenicity criteria there is no substantial proof that it causes cancer."

The following are examples of disclaiming statements that are not prohibited under this section:

"The information contained herein is based on data considered accurate. However, no warranty is expressed or implied regarding the accuracy of these data or the results obtained from the use thereof;" and

"This company assumes no responsibility for personal injury or property damage to vendees, users or third parties caused by the material. Such vendees or users assume all risks associated with the use of the material." The fact that the above disclaiming statements are not prohibited under Section 25 is based on an opinion of the status of these statements and not their desirability. (It should be borne in mind that such civil liability disclaimers do not operate to limit or reduce supplier/employer liabilities arising from the HPA statute); {ref.: PIS No.16}. These disclaiming statements, however, do not diminish in any way the responsibility of a supplier under the HPA to provide accurate information.

Qualifying" of risk phrases: The term "risk phrase" is defined in section 2 of the CPR. The following question has been raised: to what extent, if any, can a supplier of a WHMIS controlled product qualify the hazard associated with the controlled product on the label of a controlled product? Subparagraph 19(1)(e)(i) of the CPR requires only that the supplier state risk phrases that identify "a hazard that may arise from the nature of the controlled product" and that are "appropriate to the controlled product".

What is "appropriate" is a question of fact for each product. Therefore, a label that identifies a reasonably foreseeable hazard as determined from the suppliers knowledge of the particular controlled product in question will comply with the requirements of subparagraph 19(1)(e)(i). Additional qualifiers that explain the hazard and indicate the nature and circumstances of the risk that may result from that hazard are not prohibited.

The obligation under subparagraph 19(e)(i) of the CPR to report a hazard is qualified in the definition of "risk phrase" to those hazards that "may arise from the nature of the controlled product". "May" is an auxiliary verb that qualifies the meaning of the verb "arise" by expression ability, competency, possibility, probability or contingency; (ref.: Black's Law Dictionary). Therefore, a supplier would not appear to be obliged to report improbable or impossible hazards or hazards that wold require improbable interventions before they could occur.

Subparagraph 19(e)(i) requires that suppliers disclose risk phrases that are "appropriate to the controlled product" or, in the French version, "qui conviennent au produit contrôlé". Neither "appropriate" nor "convenir à" are defined in the Act or the CPR. "Appropriate" is defined in Webster's New World Dictionary as "right for the purpose; suitable; fit; proper" and has been judicially considered to embrace "a concept of suitableness, proper, and fitting to the particular situation.: Kodellas v. Saskatchewan (Human Rights Commission) (1989) 60 D.L.R. (4^th) 143 (Sask. C.A.) The word "appropriate as used in the phrase "appropriate advice" was construed in Levitt v. Carr [1992] 4 W.W.R. 160; 8 C.P.C. (3d) 101 (B.C.C.A.) to:

"Refer to the nature of the inquiry to be made as revealed by the facts within the means of the plaintiff's knowledge. In this sense, "appropriate" means suitable in the circumstances of those facts."

Similarly, "convenir à" is defined in Le Robert et Collins Senior as "être appropriée à; être utile à; être agréable à". In Kodellas v. Saskatchewan (Human Rights Commission), supra, the adjective "convenable" was defined as "appropri" and found to convey the meaning of being "appropriate in the circumstances."

The use of the adjective "appropriate" and the adjectival clause "qui convienent au" implies, therefore, that the risk phrase should fulfil the purpose of describing with some accuracy the actual hazards that may foreseeably arise from the nature of that particular controlled product. The work "appropriate" conveys the idea that the risk phrase should reflect the knowledge of the supplier about the product and the circumstances in which the product is to be used and stored. The risk phrase, therefore, should reflect hazards that are reasonable foreseeable in the circumstances in which the controlled product may be expected to be used or stored.

Further, the use of the definite article "the" in the phrase "to the controlled product" also implies that the risk phrase should be determined by the supplier on a case by case basis; that is, the risk phrase must be appropriate to the particular product that is being labelled. Tailoring the risk phrase to the particular product, therefore, would accord with the wording of subparagraph 19(e) (i). The inclusion of qualifying language like "prolonged overexposure" or "when used in a respirable form" in a risk phrase, therefore, would conform with both the letter and the spirit of section 19 of the CPR.