By Kristen Brewer & Fergus McDonnell, Fasken Martineau DuMoulin LLP
Canada’s workplace hazardous chemicals communication system is changing in 2015. The existing scheme, involving the Workplace Hazardous Materials Information System which has been in place since 1988 (“WHMIS 1988”), is being modified to conform to the Globally Harmonized System for the Classification and Labelling of Chemicals (GHS).
Effective February 11, 2015, amendments to the Hazardous Products Act (HPA)1 made in June 2014 and the new Hazardous Products Regulations (HPR) are in force, and the old Controlled Products Regulations (CPR) and Ingredient Disclosure List are repealed.2 The new system, referred to as “WHIMIS 2015,” will result in changes to the classification of hazardous products, the classification of physical and health hazards, and hazard communication and labelling requirements.
In order to ensure that suppliers, employers, and workers have time to adapt to the new system, the changes will take place over a multi-year transition period, concluding on December 1, 2018, when full compliance with the HPR will be required.
Rationale for Change
The rationale behind the WHMIS 2015 changes is to align the Canadian system with that of the United States and other trading partners. GHS was developed in 1992 by the United Nations as an international system for identifying workplace hazardous chemicals. A major drawback of WHMIS 1988 was that it was not used by Canada’s trading partners, and new products and hazards had developed since the system was established. Implementation of GHS is expected to increase the competitiveness of Canadian suppliers of workplace chemicals and also enhance worker safety.
The Canadian government expects the changes to yield net benefits of almost $400 million. The Regulatory Impact Analysis Statement for WHMIS 2015 sets out the various costs of implementation. The analysis suggests the greatest costs will be those associated with retraining production workers, as well as the costs of reclassifying products and introducing the regulatory scheme. The bulk of the benefits are expected to come through long-term productivity gains because of reduced costs of reclassification and relabeling, reduced injuries, and reduced barriers to trade.
Transition Period
Because the regulation of hazardous chemicals spans federal and provincial jurisdiction, some components of WHMIS 2015 may come into force at different times across the country. Federal legislation establishes which products are controlled under WHMIS, and deals with the importation, production, and sale of such materials. Provincial legislation addresses the use of hazardous materials in the workplace and identifies employers’ and workers’ responsibilities. As a result, aspects of the revised system subject to provincial or territorial jurisdiction will come into force as provinces and territories update their occupational health and safety legislation to reflect WHMIS 2015.
The initial phase of the transition period will last from February 11, 2015, to May 31, 2017. During this time, suppliers must comply with the requirements of either WHMIS 1988 (the old HPA and repealed CPR) or WHMIS 2015 (the amended HPA and new HPR). Classification, labelling, and communication about hazardous products must be in full compliance with the chosen standard, not a combination of the systems. If a party chooses to comply with WHMIS 1988 and is found to be not in compliance with the CPR during the transition period, the hazardous product must voluntarily be brought into compliance with CPR, or the supplier will be required to comply with the HPR, regardless of which transitional phase applies at the time.
Effective June 1, 2017, manufacturers and importers will be required to comply with WHMIS 2015. Distributors will have an additional year of transition, and must be fully compliant with WHMIS 2015 by May 31, 2018.
Employers will have an additional six months to make the transition to WHMIS 2015, and are required to comply with WHMIS 2015 by November 30, 2018, subject to provincial or territorial legislative requirements.
WHMIS 2015: What’s New?
The two major elements of GHS are the classification of hazardous products and the communication of these hazards.
Classification
GHS classifies hazardous products into three major hazard groups: health, physical, and environment. WHMIS 2015 applies to health and physical hazards only; however, including information about environmental hazards on labels and communications is allowed by WHMIS 2015.
Physical hazards are identified based on the physical or chemical properties of the product, such as flammability, reactivity, or corrosivity to metals. Health hazards are based on the ability of the product to cause a health effect, such as eye irritation, respiratory problems, or cancer.
Within each hazard group there are classes, and for each class there are hazard categories based on severity. For instance, flammable gasses are a class of hazard in the physical hazards group, while acute toxicity is a hazard class in the health hazards group. Hazard categories are assigned numbers, with 1 being the most hazardous. In some cases, categories are further broken down into types, designated by a letter. For each category of a class, a standardized “hazard statement” describes the nature of the hazard. For instance, in the class of pyrophoric gases, the hazard statement for category 1 is “Catches fire spontaneously if exposed to air.”
WHMIS 2015 includes a number of physical and health hazards that are contained in GHS but were not covered by WHMIS 1988. So as to avoid any reduction of worker protection, WHMIS 2015 also includes some hazard classes that were covered by WHMIS 1988 but are not included in the GHS hazard classes. Suppliers should therefore review the classification scheme in detail to understand how WHMIS 2015 applies to their chemical products.
Communication
Under WHMIS 2015, a label must include a product identifier and initial supplier identifier, as well as standardized pictograms, a signal word (“Danger” and/or “Warning”), a hazard statement, precautionary statements, and, if applicable, additional label elements for specific classes of hazardous products. Labelling components are established through the classification system. The labelling requirements of WHMIS 2015 are aligned with the GHS labelling requirements, and the Hazard Communication Standard 2012 (HCS 2012), which is the applicable legislation in the United States. This means that WHMIS 2015-compliant labels will also be compliant with U.S. requirements. However, WHMIS 2015 contains additional labelling requirements that do not align with HCS 2012, in the carcinogenicity, PHNOC, HHNOC, and biohazardous infectious materials hazard classes. This is because HCS 2012 offers a lower standard of protection for workers than was provided for under WHMIS 1988.
WHMIS 2015 requires the use of newly designed Safety Data Sheets (SDSs) in place of the MSDSs used under WHMIS 1988. This also aligns with HCS 2012. SDSs have a format of 16 standardised GHS headings, with an adapted SDS for products classified as biohazardous infectious materials (this class is not regulated under HCS 2012). Key differences from MSDSs are that the SDSs must provide classification of the hazardous product as well as information about any reaction product produced as a result of following instructions for use provided with the product. In addition, supplier and product identifiers on an SDS must be the same as those appearing on the label. Canadian suppliers will be required to provide SDSs in both English and French, which is not a requirement under HCS 2012.
Practicalities of Transitioning to WHMIS 2015
With the introduction of WHMIS 2015, the fundamental roles and responsibilities in relation to hazardous chemicals will not change, and nor will the broader purpose of protecting workers’ health while allowing suppliers to maintain control of their intellectual property. Suppliers, including manufacturers, importers, and distributors, will continue to be responsible for identifying whether their products are hazardous products, and for preparing labels and SDSs to provide to purchasers of hazardous products intended for use in a workplace. Similarly, employers will continue to be responsible for education and training of workers, ensuring that hazardous products are properly labelled, and preparing workplace labels and SDSs as necessary.
Despite this, the transition to WHMIS 2015 will require a number of practical changes that suppliers and employers should turn their attention to.
Suppliers with exemptions under WHMIS 1988 should be aware that while some exemptions will continue, others will continue with modification and some will be removed. Exemptions for flavours and fragrances will not be retained, while exemptions for complex mixtures and confidential business information will be retained with minimal changes from the CPR. Suppliers undertaking a review of the GHS criteria to determine the proper classification of their products should take care to ensure an evidence-based approach is used, and that the approach is documented for future reference in case issues arise.
Employers at workplaces that deal with hazardous chemicals and currently use WHMIS 1988 should begin modifying education and training programs to adapt to WHMIS 2015. During the transition period, employers will need to educate workers about both systems. As different products arrive, employers will also need to manage MSDSs and SDSs to ensure compliance and adjust education and training programs and policies. Businesses that have a long turnover cycle of chemical inventories should take particular care to address how to update labels and SDSs without forgetting older substances, and ensure that their inventory of hazardous products is up to date.
While the introduction of WHMIS 2015 will create some confusion and duplication during the transition period, efficiency gains for manufacturers or distributors who import or export chemicals are likely to be seen even in the short term.
In the longer term, GHS is expected to be implemented by other regulatory agencies, including Transport Canada for the transportation of dangerous goods, and Health Canada for use with consumer products and pest control products. The standardized classification and communication requirements are therefore likely to be seen increasingly across a number of sectors.
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1.RSC, 1985, c H-3.
2.Consequential amendments have also been made to a number of other federal statutes and regulations, including regulations under the Canadian Environmental Protection Act, 1999, the Hazardous Materials Information Review Act, the Food and Drugs Regulations, and the Canada Consumer Product Safety Act.
STP has recently published an update to its publication Canadian Environmental Law Guide and also publishes the following related guides:
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International Audit Protocols - Canada: British Columbia (Abridged)
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[U.S.] Environmental Compliance: A Simplified National Guide
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[U.S.] OSHA Auditing - Federal Compliance Guide: Facilities: The Complete Safety & Health Audit Checklist
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[U.S.] Environmental Auditing: Federal Air Quality MACT Standards for Site Remediation
About the Authors
Kristen Brewer is an associate with Fasken Martineau DuMoulin LLP, and Contributing Editor of the Canadian Environmental Law Guide. Kristen practices in the areas of energy, environmental, and Aboriginal law, and regularly advises clients on environmental permitting and due diligence in transactions and operational decision making.
Fergus McDonnell obtained a Juris Doctor degree from the University of British Columbia in 2014 and is an articled student with Fasken Martineau DuMoulin LLP.