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

HPA Section 3 - Application

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Application

3. (1) This Part does not apply in respect of the advertising, sale or importation of any

(a) explosive within the meaning of the Explosives Act;
(b) cosmetic, device, drug or food within the meaning of the Food and Drugs Act;
(c) control product within the meaning of the Pest Control Products Act; or
(d) nuclear substance within the meaning of the Nuclear Safety and Control Act, that is radioactive.

(2) This Part does not apply in respect of the advertising, sale or importation of any tobacco product within the meaning of the Tobacco Products Control Act.

Interpretation / Discussion of Section 3

Restricted or prohibited products which fall within the jurisdiction of the Acts listed in subsections 3(1) and (2) are excluded from the operation of the Hazardous Products Act (HPA). However, a product that contains one of the excluded products may be subject to the HPA where the excluded product forms only a small part of the product. In such cases, the product is in pith and substance a restricted or prohibited product and the excluded part will not be sufficient to oust the jurisdiction of the HPA.

Explosives:

Section 2 of the Explosives Act defines an explosive as

"any thing that is made, manufactured or used to produce an explosion or a detonation or pyrotechnic effect, and includes any thing prescribed to be an explosive by the regulations, but does not include gases, organic peroxides or any thing prescribed not to be an explosive by the regulations".

The Explosives Act, administered by Natural Resources Canada, controls the manufacture, testing, sale, storage, importation and transportation of explosives and the use of fireworks.

Cosmetics, Devices, Drugs and Food:

The Food and Drugs Act, administered by Health Canada, defines "cosmetics", "devices", "drugs" and "food" as follows:

"cosmetic" includes any substance or mixture of substances manufactured, sold or represented for use in cleansing, improving or altering the complexion, skin, hair or teeth, and includes deodorants and perfumes;

"device" means any article, instrument, apparatus or contrivance, including any component, part or accessory thereof, manufactured, sold or represented for use in

(a) the diagnosis, treatment, mitigation or prevention of a disease, disorder or abnormal physical state, or its symptoms, in human beings or animals,
(b) restoring, correcting or modifying a body function or the body structure of human beings or animals,
(c) the diagnosis of pregnancy in human beings or animals, or
(d) the care of human beings or animals during pregnancy and at and after birth of the offspring, including care of the offspring,

and includes a contraceptive device but does not include a drug;

"drug" includes any substance or mixture of substances manufactured, sold or represented for use in

(a) the diagnosis, treatment, mitigation or prevention of a disease, disorder or abnormal physical state, or its symptoms, in human beings or animals,
(b) restoring, correcting or modifying organic functions in human beings or animals, or
(c) disinfection in premises in which food is manufactured, prepared or kept.

A "drug", as defined in the Food and Drugs Act, includes any raw material that is itself a drug or is used to manufacture a drug in dosage form. Therefore, raw materials that are drugs or are used in the manufacture of drugs are also excluded from the application of the WHMIS requirements of Part II of the HPA by virtue of paragraph 12(b) of the Act.

Veterinary biologics including veterinary vaccines are primarily dealt with under the Health of Animals Act administered by the Canadian Food Inspection Agency. Because these products are also 'drug[s] within the meaning of the Food and Drugs Act, they are exempt from both Part I and the WHMIS supplier labelling and MSDS requirements set out in Part II of the HPA.

"food" includes any article manufactured, sold or represented for use as food or drink for human beings, chewing gum, and any ingredient that may be mixed with food for any purpose whatever.

The Food and Drugs Act controls the sale, advertisement, manufacture, packaging and labelling of the above products from the viewpoint of preventing both economic fraud and health and safety hazards.

Pesticides, Insecticides and Disinfectants:

The Pest Control Products Act, administered by the Pest Management Regulatory Agency, of Health Canada, defines a control product as any product, organism, device, substance or thing that may be used directly or indirectly to control, prevent, destroy, mitigate, attract or repel pests. This includes any compound or substance that enhances or modifies the physical or chemical characteristics of a control product to which it is added and any active ingredient used to manufacture control products. A "control product" under the Pest Control Products Act is not to be confused with a "controlled product" under the HPA.

Examples of pest control products are insecticides, fungicides, algaecides, herbicides, rodenticides, insect repellents, animal repellents, pet repellents, insect attractants, plant growth regulants, microbial control agents (slimicides, bacteriostatic agents, sanitizers), disinfectant-type products (sterilizers, germicides, bactericides, sporocides, viricides, fungicides), and devices for pest control.

A product is also classified as a pest control product if a claim is made that the product disinfects or controls bacteria. For example, a bleach containing sodium hypochlorite would be considered a "pest control product" if the manufacturer claims it is a disinfectant. Therefore, it would not fall under the HPA. However, if no such claim was made, the bleach would be subject to the HPA. Pest control products are labelled with a pest control product number which indicates that the product is registered under the Pest Control Products Act.

Nuclear Substance:

The Nuclear Safety and Control Act, [assented to March 20, 1997], administered by the Canadian Nuclear Safety Commission, defines "nuclear substance" as

(a) deuterium, thorium, uranium or an element with an atomic number greater than 92;
(b) a derivative or compound of deuterium, thorium, uranium or of an element with an atomic number greater than 92;
(c) a radioactive nuclide;
(d) a substance that is prescribed as being capable of releasing nuclear energy or as being required for the production or use of nuclear energy;
(e) a radioactive substance or radioactive thin that was used for the development or production, or in connection with the use, of nuclear energy.

The overall objective of the Nuclear Safety Control Act is the control and supervision of the development, application and use of nuclear energy.

A product containing a "nuclear substance" may come under the HPA when the Nuclear Safety and Control Act fails to control some aspect of the product not related to the prescribed substance. For example, some fire warning devices contain "nuclear substances" and are thus subject to the Nuclear Safety and Control Act. However, the performance of such devices from a fire safety viewpoint is not governed by the Nuclear Safety and Control Act. Thus, the performance of fire warning devices can be controlled under the Hazardous Products Act.

Tobacco Product:

The Hazardous Products Act was amended in 1989 by Bill C-27, adding Subsection 3(2).

The Tobacco Products Control Act, administered by Health Canada, prohibits the advertising and promotion of tobacco products and specifies the labelling of tobacco products. Tobacco products are defined under this Act as any product manufactured from tobacco and intended for use by smoking, inhalation or mastication, and includes nasal and oral snuff.

The Tobacco Products Control Act was recently found to be in pith and substance an attempt to control the publicity of a legal product and as such was ruled unconstitutional as an intrusion into the powers given the provinces in the Constitution Act, 1867: RJR Macdonald Ltd v. Attorney General of Canada et al. and Imperial Tobacco Ltd. v. Attorney General of Canada et al, unreported, Cour Supérieure du Québec, July 26, 1991. This case was appealed, unsuccessfully, by the Crown.