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

HPA Section 2 - Definitions

2. In this Act,

"advertise", in relation to a prohibited product or restricted product, includes any representation by any means whatever for the purpose of promoting directly or indirectly the sale or other disposition of the product;

"analyst" means any person designated as an analyst under the Food and Drugs Act or pursuant to subsection 21(1);

"controlled product" means any product material or substance specified by the regulations made pursuant to paragraph 15(1)(a) to be included in any of the classes listed in Schedule II;

"hazardous product" means any prohibited product, restricted product or controlled product;

"import" means to import into Canada;

"inspector" means any person designated as an inspector pursuant to subsection 21(1);

"Minister" means the Minister of Health; [1996, c. 8, s. 25]>

"prohibited product" means any product, material or substance included in Part I of Schedule I;

"restricted product" means any product material or substance included in Part II of Schedule I;

"sell" includes offer for sale, expose for sale and distribute.

Interpretation / Discussion of Section 2

Note: Responsibility for the Hazardous Products Act was transferred to the Minister ofNational Health and Welfare on June 25, 1993 by P.C. 1993-1491, published as SI/93-145,dated July 14, 1993; ["Minister of Health" as of May 29, 1996].

The definitions in section 2 apply to Parts I, II and III of the Hazardous Products Act (HPA). Section 11 of the HPA also has definitions that apply specifically to the WHMIS requirements of Part II of the Act. The words defined in an Act of Parliament always have the same meaning in the regulations made under the Act. Any word that is not specifically defined in an Act should be given its ordinary meaning after considering the context in which it appears and the purpose of the Act.

Advertise: The word "advertise" appears only in section 4 of the Act which sets out the prohibitions on prohibited products and restricted products. The prohibitions on controlled products, set out in sections 13 and 14 of the Act, refer only to the sale and importation of such products.

The use of the verb "includes" means that the definition is not complete; that is, the meaning of the word "advertise" in all its grammatical forms is not restricted only to the particular meaning set out in the definition. Under the HPA, therefore, to "advertise" a product, a statement would have to be aimed at "promoting" the sale or other disposition of the product. "Other disposition" includes giving the product away or leasing or renting it.

A distinction is made between "advertising" and "publishing an advertisement". The violation of section 4 of the HPA is committed by the person who places the illegal advertisement; that is, the person selling the product who pays for the advertisement. The person or firm that publishes the advertisement, or the radio or television station that broadcasts it, is usually not in a position to know that the product violates the Act or its regulations. Accordingly, it is the advertiser that is charged, not the owner of the medium in which the advertising appears.

A statement that is purely informational, as opposed to promotional, is not considered to be advertising for the purposes of the HPA. For example, instructions for the use of a product are not generally considered to be a form of advertising. Accordingly, instructions that include a recommendation of a hazardous product do not constitute an advertising violation, unless the hazardous product is being promoted and is made available for sale at the same time.

Controlled product: A "controlled product" is any product, material or substance that meets any of the criteria listed in Part IV of the Controlled Products Regulations.

Hazardous product: A "hazardous product" means a prohibited product (a product listed in Part I of Schedule I) to the HPA, a restricted product (a product listed in Part II of Schedule I) to the HPA or a controlled product (a product that is included in any of the classes listed in Schedule II) to the HPA. Restricted products and prohibited products are covered in Part I of the HPA (sections 3 to 10); controlled products are covered in Part II of the Act (sections 11 to 20). If a product is not listed in Schedule I or included in the classes of products in Schedule II, enforcement action under the HPA cannot be taken regardless of how hazardous it is or appears to be.

Minister: Throughout this document, "Minister", unless otherwise noted, should be understood to mean the Minister of Health Canada.

Sell: The Oxford Dictionary defines the meaning of the word "sell" as "to give up or hand over (something) to another person for money (or something that is reckoned as money)". Under the HPA, the term "sell" also includes "offer for sale", "expose for sale" and "distribute". Thus, the actual sale of a hazardous product does not have to be established since the offence is committed when the hazardous product is offered or exposed (i.e. displayed) for sale. A distribution or give-away of the product as a prize or a "free" item is, therefore, included in the definition of "sell" where the distribution may be characterized as a promotion of the product.

The HPA applies to both consumer sales and non-consumer sales (e.g. a sale between companies, institutions, etc.).

For the HPA to apply, the product must have been advertised or sold in Canada or imported into Canada. It is sometimes difficult to determine whether "sale" occurred in Canada in fact or in law. Where a sale is wholly negotiated and concluded outside Canada and the product enters Canada in the possession of the person who will use it, then, in both fact and law, the sale will probably not have occurred in Canada. However, if the negotiations and agreement for the sale take place in Canada, the sale may, in law, have occurred in Canada. Laws regarding sales and the location of sales transactions are within provincial jurisdiction. Nevertheless the requirements of the HPA governing importation would apply.

The word "distribute" does not include internal distribution of a product within an organization but does include transfers of a product between independent organizations as well as between separate subsidiaries of a parent corporation.

The objective of WHMIS is to ensure that a person using a hazardous product, material or substance in the work place will receive information on its hazards as well as its ingredients. Where a controlled product, such as a laboratory sample, is supplied to a work place by the same entity that operates the workplace, the supply of that hazardous product is not governed by Part II of the HPA. Conversely, where a controlled product is supplied to a work place by a different entity than the operator of the work place, then the supplier is "distributing" the controlled product within the meaning of the HPA. The supplier, in the latter case, is required to comply with the requirements of the HPA and the Controlled Products Regulations.

Second-hand Products: The requirements of the HPA apply to the advertising, sale and importation of second-hand products such as used cribs.