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

HPA Sections 13 and 14 - Prohibitions

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Prohibitions

13. Subject to the Hazardous Materials Information Review Act, no supplier shall sell to any person a controlled product intended for use in a work place in Canada unless

1. on the sale of the controlled product, the supplier transmits to that person a material safety data sheet with respect to the controlled product that discloses the following information, namely,
   1. where the controlled product is a pure substance, the chemical identity of the controlled product and, where the controlled product is not a pure substance, the chemical identity of any ingredient thereof that is a controlled product and the concentration of that ingredient,
   2. where the controlled product contains an ingredient that is included in the Ingredient Disclosure List and the ingredient is in a concentration that is equal to or greater than the concentration specified in the Ingredient Disclosure List for that ingredient, the chemical identity and concentration of that ingredient,
   3. the chemical identity of any ingredient thereof that the supplier has reasonable grounds to believe may be harmful to any person and the concentration of that ingredient,
   4. the chemical identity of any ingredient thereof the toxicological properties of which are not known to the supplier and the concentration of that ingredient, and
   5. such other information with respect to the controlled product as may be prescribed; and
2. the controlled product or container in which the controlled product is packaged has applied to it a label that discloses prescribed information and has displayed on it all applicable prescribed hazard symbols.

14. Subject to the Hazardous Materials Information Review Act, no supplier shall import a controlled product intended for use in a work place in Canada unless

1. the supplier obtains or prepares, on the importation of the controlled product, a material safety data sheet with respect to the controlled product that discloses the information referred to in subparagraphs 13(a)(i) to (v) and keeps the material safety data sheet available for such purposes as may be prescribed; and
2. the controlled product or container in which the controlled product is packaged has applied to it a label that discloses prescribed information and has displayed on it all applicable prescribed hazard symbols.

Interpretation / Discussion of Sections 13 and 14

Controlled Product: Whether a product, material or substance is or is not a controlled product is determined by assessing the product against the criteria specified in Part IV of the Controlled Products Regulations (CPR). Part IV of the CPR describes products, materials or substances that are included in the classes set out in Schedule II of the HPA. If a product, material or substance meets any of the criteria in Part IV, it is a controlled product within the terms of the HPA and, subject to exemptions, cannot be sold in or imported into Canada unless the supplier meets the requirements for MSDSs, labels and information disclosure.

Intended Use (of the Controlled Product): "Intended for use in a work place" refers to the intention of the supplier. A supplier who sells a controlled product to a retail outlet for use by consumers is not subject to the WHMIS supplier MSDS and label requirements of Part II of the HPA even if an employer, in turn, buys the product from the retail outlet for use in the employer's work place. If, however, a controlled product is sold to a work place for the purpose of being packaged or repackaged for subsequent sale including sale to consumers, this operation does constitute intended use. Use includes any situation where a worker may potentially be exposed to a substance in a work place and includes a repackaging operation, {ref.: PIS No.2}.

Employer obligations: WHMIS employer requirements place a general duty on the employer to train "a worker who works with a controlled product or in proximity to a controlled product." The general policy document of the WHMIS employer requirements makes a distinction between storage, handling, use and disposal. This policy document states the following:

1. a worker who works with a controlled product is any worker who stores, handles, uses or disposes of a controlled product, or who supervises another worker performing these activities;
2. "in proximity" is the area in which worker health and safety could be at risk during:
   • storage, handling use or disposal of the product;
   • maintenance operations; or
   • emergencies, such as an accidental leak or spill.

Charging Fees for Provision of MSDSs: As Section 13 of the HPA requires that a supplier provide a MSDS as a condition of sale of a controlled product, the supplier cannot charge a separate fee, above or beyond the price of the product itself, in connection with the provision of the MSDS. The withholding of a MSDS by a supplier because of non-payment of a MSDS fee by the purchaser of the controlled product would constitute a serious violation of the HPA. A request for payment for MSDSs in respect of non controlled products, or requests from individuals wishing to acquire a supplier's MSDS who have not purchased the supplier's product, is outside of the scope of the HPA.

Internet, use of to transmit MSDSs in repsect of sale: As section 13 of the HPA requires a positive action by the transmitter to convey the transmitted document to the recipient, making a MSDS available on the Internet without ensuring that the purchaser is able to access this information does not absolve a supplier of the legal requirement to transmit a MSDS as a condition of sale.

The use of the Internet to transmit an MSDS would be acceptable {PIS No. 80} if the supplier is able to demonstrate the following:

1. the purchaser has downloaded the complete and correct MSDS, i.e., one that contains all of the required information;
2. the downloading is done "at the time of the sale of the controlled product" as required under section 24 of the CPR; and
3. the downloaded file is readable

Satisfaction, on the part of the supplier, may be provided through written confirmation, provided to the supplier from the purchaser, specifying that the above conditions have been met.

A more passive approach to the section 13 obligation, ie., where the supplier would simply post an MSDS on its Web site, would need to be reflected in the legislation.

With the consent of both parties, transmission of a MSDS by e-mail by a supplier to a customer via the Internet is an acceptable means of transmitting a MSDS.

The United States Occupational Safety and Health Administration has also communicated the conditions for the acceptability of the use of the Internet to provide MSDSs:

1. OSHA Standards Interpretation and Compliance Letters; "Manufacturers' use of the Internet for distribution of MSDSs to downstream users"; February 20, 1997 letter from Stephen Mallinger, Acting Director Office of Health Compliance Assistance to Kevin Johnson, CIH, CSP Corporate EH&S Manager, Chiron Diagnostics Corporation;

   http://www.osha.gov/pls/oshaweb/owadisp.show_document?
   p_table=INTERPRETATIONS&p_id=22353&p_text_version=FALSE

2. OSHA Standards Interpretation and Compliance Letters; " Internet use for posting MSDSs"; June 16, 1997 letter from Greg Watchman Acting Assistant Secretary to Honorable Jay W. Johnson U.S. House of Representative;

   http://www.osha.gov/pls/oshaweb/owadisp.show_document?
   p_table=INTERPRETATIONS&p_id=22427&p_text_version=FALSE

Internet, use of to "obtain" or "prepare" a MSDS in respect of importation: Section 14 of the HPA places a legal requirement on the Canadian importer of a controlled product to obtain or prepare a MSDS as a condition of importation. Regulatory agencies have agreed to accept the use of the Internet to fulfill the requirement to "obtain" a MSDS on the condition that the Canadian importer is able to generate and provide a hard copy of the MSDS disclosing the prescribed information to an inspector if requested to do so.

Legibility of MSDSs: As required by paragraph 13 (a), the supplier must "transmit a MSDS...". The term "transmit" is defined in section 11 of the HPA and includes transmittal by electronic and optical means. Sometimes, as a result of electronic or optical transmittal, the quality of the print may vary. In contrast to the explicit requirement that labels be "easily legible" (see section 21 of the CPR), there is no analogous requirement regarding the legibility of MSDSs. MSDSs which are not legible, however, are not considered to be in compliance with the HPA requirement to transmit a MSDS.

Transmission of MSDSs: The term "transmit" is defined in section 11 of the HPA (English version only). The MSDS must accompany, or be provided before, the sale of the controlled product. As provided for by section 6 of the CPR, a supplier need not send a MSDS in respect of subsequent sales of the same product if the MSDS provided with the original sale is not more than three years old. Refer to Section 29 of the CPR for requirements regarding updating MSDSs.

Gasoline and Propane, Sale of ~: Retail sales of gasoline or propane from a service station are exempted from WHMIS requirements as the sale of the product is intended for consumer use. Consideration will be given to amending the CPR to exclude the requirements for an MSDS on non-retail sales of gasoline, propane, etc., into a vehicle storage tank directly connected to an internal combustion engine or gas turbine engine. Until such time, it is the administrative policy to treat such non-retail sales as exempt. However, where fuel is being sold and delivered to a workplace (e.g., schools, businesses, industrial plants etc.), the WHMIS obligations arise because the product is being sold for use in a workplace. Since the product is transported in bulk, the MSDS and label information may be transmitted to the purchaser on or before the delivery of the product (such as at the time the contract is established); {ref.: PIS No. 37}.

"Unknown" Ingredients: When the chemical identity of an ingredient of a controlled product is unknown" but the precursor constituents of the ingredient are known, a question arises as to what should be disclosed on the MSDS. In this case, the MSDS for a controlled product that contains an unknown "reaction product" for which the chemical identity is required to be disclosed should indicate:

• the best available chemical characterization of the reaction product, and only if that does not adequately describe the nature of the product;
  
• the chemical identity of precursor constituents that react to produce the product .

There are situations in which two or more known chemicals ("precursor constituents") react to produce an unknown ingredient ("reaction product"). The chemical identity of this "reaction product" will be required to be disclosed on the MSDS of a controlled product if it meets any of the three categories of ingredients required to be disclosed under paragraphs 13(a)(i), (iii) or (iv) of the HPA; {ref.: PIS No. 70}.

Testing: A supplier is not required to undertake "state-of-the art" testing to determine ingredients. Testing, however, would normally be necessary to determine ingredients where they are unknown, {ref.: PIS No.17}. If foreign suppliers of ingredients refuse to give ingredient disclosure information, a number of products will be excluded from use by Canadian industries. A controlled product cannot be sold or imported into Canada unless the ingredient disclosure requirements of the HPA are met. The importer retains the legal responsibility for ingredient disclosure or lack thereof in respect of the importation of a controlled product; {ref.: PIS No. 27}; i.e., it is incumbent on the Canadian supplier / Canadian importer to undertake whatever testing is necessary to meet the ingredient disclosure requirements of the HPA.

Biohazardous Infectious Materials - chemical identity of ~: In the case of a biologically infectious material (Division 3 of Class D - Poisonous and Infectious Materials), "chemical identity" refers to the infectious organism itself and not its chemical makeup;a {ref.: PIS No. 23}.

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Section 13:

Section 13 of the HPA sets out the ingredients which, subject to trade secret provisions and specified conditions such as the cut-offs established in section 4 of the CPR, must be disclosed on the MSDS. It is not appropriate to use qualifiers such as "may contain" in relation to MSDS ingredient disclosure. Subparagraphs 13(a)(i) to (iv) describe the four categories of ingredients of a controlled product whose chemical identity and concentration must be disclosed on an MSDS. (Where ingredients present below their cut-off may have an additive or synergistic effect, suppliers are encouraged to disclose the identity and concentration of those ingredients):

Subparagraph 13(a)(i):

Where the controlled product is a pure substance, disclosure of the concentration of the pure substance is not required.

Subparagraph 13(a)(ii):

The chemical identity and concentration of an ingredient of a controlled product found in a concentration equal to or greater than the concentration specified in the Ingredient Disclosure List (IDL) must be disclosed on the MSDS. The IDL does not play a part in determining whether a product is a controlled product under the HPA.

Ingredients included on the IDL are one of the four categories of ingredients whose identity and concentration must be disclosed on the MSDS if present in a controlled product. An ingredient may be listed on the IDL and yet may not fall within any of the prescribed hazard criteria of the PR. Also, the IDL is not a complete listing of ingredients that fall within the prescribed hazard criteria of the CPR. Therefore, the IDL cannot be used as a basis to determine whether a product is a controlled product. The IDL can be used to determine whether an ingredient contained in a controlled product must be disclosed on the MSDS. Where an ingredient does not appear on the IDL, disclosure of the chemical identity of that ingredient may still be required by subparagraphs 13(a)(i), (iii) or (iv).

Where the concentration cut off for an ingredient in a mixture established under paragraph 4(a) of the CPR is lower than the cut off established in the IDL, the lower cut off takes precedence, {ref.: PIS No. 59} (Refer to the interpretation of section 17 of the HPA for additional information on the IDL).

Subparagraph 13(a)(iii):

This paragraph requires the disclosure of ingredients that "...may be harmful to any person...". This is meant to include all ingredients that the supplier has reasonable grounds to believe may have an adverse effect on workers. As a working definition, adverse effect may be taken to mean:

• injury to humans which is primarily caused by occupational exposure and which results in any reversible or irreversible material impairment to health or irreversible diminished functional capacity, or
• injury to mammals when validly tested in accordance with established scientific principles which results in any reversible or irreversible material impairment to health or irreversible diminished functional capacity.

This includes ingredients which, in a published article referred to in public scientific sources, indicate an adverse effect on man or mammals as well as through in vitro tests. Therefore, any ingredients in a controlled product which meet this criterion must be disclosed on the MSDS.

Subparagraph 13(a)(iv):

Subparagraph 13(a)(iv) is meant to refer to ingredients for which the supplier has no information about any of its toxicological properties. It was agreed that "the result of any one short-term bioassay or a repetition of that bioassay (e.g. a single Ames Test, positive or negative) shall not be considered in deciding whether anything is known about the toxicological properties of the material".¹

Subparagraph 13(a)(v):

Section 12 of the CPR prescribes the additional information that must be disclosed on a MSDS. Refer to all of Part I, sections 4 to 13, of the CPR for complete information on the material safety data sheet.

Paragraph 13(b):

Section 19 of the CPR prescribes the information that must be disclosed on the label of a controlled product or container in which the controlled product is packaged. Paragraph 19(1)(d) prescribes the hazard symbols that must be displayed on the label. Section 22 of the CPR provides information on the reproduction of the hazard symbols which are depicted in Schedule II of the CPR. Refer to all of Part II, sections 14 to 22, of the CPR for complete labelling requirements.

Section 14:

Section 2 of the HPA defines the term "import" as to "import into Canada". Based on the definitions provided in general dictionaries, importing into Canada means bringing goods from anywhere outside of Canada into Canada. In 1983, J. Dickson of the Supreme Court of Canada, in the matter of Bell vs. the Queen, (1983) 8 CCC (#d) 97, speaking for the majority, stated that "to actually commit" importing, an accused must bring in, or cause to be brought in, to Canada, goods from a foreign country. As such, any person who brings in, or causes to be brought in, to Canada, goods from a foreign country, can be considered an importer. Consequently, retailers and distributors can be said to be importers within the meaning of the HPA.

Moreover, when a sales representative takes an order and arranges the delivery of products from a foreign country or a customs bonded warehouse to a client in Canada, he/she is causing goods from a foreign country to be brought into Canada. Therefore, according to the Supreme Court of Canada's definition of importing, sales representatives "import" within the meaning of the HPA, even if the products imported never come into their possession.

According to paragraph 17(1)(b) of the Customs Bonded Warehouses Regulations:

"17(1) Goods shall not be manipulated, altered or combined with other goods while in a bonded warehouse except for the purpose of or in the course of...

(b) complying with any applicable law of Canada or of a province."

Consequently, the HPA does apply to products contained in warehouses located in Canada even in cases where the operator of the warehouse is not Canadian.

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¹ This quotation is from recommendation 33(2) of the original WHMIS Steering Committee Report and was reiterated in PIS No. 22.