Canada Amends Hazardous Products Regulations to Align with GHS Revs 7 and 8

On January 4, 2023, the Department of Health in Canada published in the Canada Gazette, Part II the revisions to the Hazardous Products Regulations (HPR). The HPR is the federal level legislation that sets forth the classification, labeling, and Safety Data Sheet (SDS) requirements for hazardous products intended to be used, handled, or stored in workplaces in Canada. The current HPR is based on the fifth revised edition (Rev 5) of the United Nations (UN) Globally Harmonized System of Classification and Labelling of Chemicals (GHS). The changes include updating the HPR to align with the seventh revised edition (Rev 7) of GHS, and include elements from the eighth revised edition (Rev 8). The transition period is three years.

Background

On February 11, 2015, the HPR was published in the Canada Gazette, Part II. The HPR revised and amended the previous Hazardous Products Act substantially, as it introduced the GHS concepts into the regulatory framework. In addition, it modified the Workplace Hazardous Materials Information System (WHMIS), which had not been updated since it first became law in 1988. The new system is referred to as WHMIS 2015. At the time of publication, the HPR was based on Rev 5 GHS. The UN updates and revises the GHS model on a bi-annual basis, and at this time, the most current version is Rev 9, with the expectation that Rev 10 will be published in 2023. Canada’s update aligns the HPR with Rev 7, adds specific physical hazard elements from Rev 8, and includes other points of clarification and revision.

Revisions to the HPR

Highlights of the major changes include the following:

• Updates and amendments to terminology to align with Rev 7. This includes updates to several health and physical hazard class definitions;
   
• Revisions and amendments to the HPR Subpart that includes Flammable Gases. These changes include revised definitions and the incorporation of pyrophoric gases;
   
• Revisions and amendments to the HPR Subpart that address aerosols. These changes include adding non-flammable aerosols, revising the definitions, and renaming the Subpart from Flammable Aerosols to Aerosols;
   
• Clarifications on approaches to classification for Aerosols versus Gases Under Pressure;
   
• Adoption of Chemicals Under Pressure from Rev 8 to align with the United States proposed changes to the Occupational Safety and Health Administration (OSHA) updates to the current Hazard Communication Standard (HCS 2012);
   
• Expansion of the criteria and methods for the HPR Subpart for Oxidizing Solids;
   
• Revisions to Section 9 Physical and chemical properties content of the SDS;
   
• Changes to Section 14 Transport information on the SDS; and
   
• Amendments to allow for additional hazard statements for Combustible Dusts.​

A more detailed discussion on a few of the more significant changes follows.

The largest impact to the changes to HPR Subparts are within the physical hazard classes. Certain changes are specific to the alignment with Rev 7 and Rev 8. These include significant, but necessary changes to Flammable Gases, Aerosols, and the inclusion of Chemicals Under Pressure. The revisions include the incorporation of pyrophoric gases into the Flammable Gases Subpart. Currently, pyrophoric gases are addressed in a separate HPR Subpart, as this physical hazard was not part of Rev 5 but was added to the UN GHS model in a later revision. In addition, the intention originally to include pyrophoric gases as a separate Subpart helped to align the HPR with the additional labeling elements OSHA included in HCS 2012. The revisions to the Flammable Aerosols Subpart to rename to Aerosols and add non-flammable aerosols is necessary to align with Rev 7. As noted, the addition of Rev 8 Chemicals Under Pressure is to align with the proposed changes to OSHA HCS 2012.

The changes to terminology have a broader impact, and as noted in the Gazette, Part II, include amendments to several health hazard classes, acute toxicity, skin corrosion/irritation, serious eye damage/irritation, respiratory and skin sensitization, and reproductive toxicity. In addition, new definitions are noted for germ cell mutagenicity and carcinogenicity.

The changes to the SDS in Schedule I of the HPR are specific to Section 9 and Section 14 and are meant to address those noted in Rev 7. Health Canada revises Section 9 as noted in the table below.

The revisions to Section 14 remove paragraph 14(f) completely from the Section. Paragraph 14(f) currently is “transport in bulk (according to Annex II of the International Convention for the Prevention of Pollution From Ships, 1973, as modified by the Protocol of 1978 (MARPOL 73/78), and the International Code for the Construction and Equipment of Ships carrying Dangerous Chemicals in Bulk (IBC Code)).” Annex 4 of Rev 7 of GHS includes details on shipping cargoes in bulk according to the International Maritime Organization instruments. The Annex also notes that cargoes are subdivided by physical state (i.e., liquid, solid, or liquefied gas). These changes are not being incorporated into the HPR; Health Canada is instead proposing repealing this item completely as it states, “the updated wording does not clearly specify which International Maritime Organization instruments must be complied with, and information relating to transport in bulk is optional information.”

Health Canada is allowing the option of two hazard statements for addressing combustible dusts. The amendment includes the original, “May form combustible dust concentrations in air,” or the new statement “May form explosible dust-air mixture.” This change is “…to better align with the U.S. Occupational Safety and Health Administration’s proposed amendments to their Hazard Communication Standard.”

Commentary

The proposed changes to the HPR published in the Canada Gazette, Part II are nearly identical to the December 19, 2020, changes published in Canada Gazette Part I. Health Canada previously stated its intent to align the HPR with more recent revisions of GHS. The timing of the notice is also not unexpected. Many will note that Health Canada, while intending to align with OSHA, is issuing its revisions in advance of any update from the United States. According to the fall 2022 Regulatory Agenda, released on January 4, 2023, OSHA intends to publish its final rule in March 2023. OSHA had implied it was close to completing the final rule but has yet to publish it in the Federal Register. If OSHA were to publish the final rule this year, it is highly unlikely the timing will be synchronized, as the legislative processes are inherently different. Readers may recall that the initial GHS adaptations between the United States and Canada occurred several years apart. The two systems, WHMIS 2015 and HCS 2012, do remain closely aligned at this time; the revisions to the HPR to Rev 7 and Rev 8 will create misalignment.

Health Canada did include an additional year for implementation. The original publication in Canada Gazette Part I indicated a two-year transition, but the publication now indicates three years. The transitionary period allows for a supplier to “…(a) sell or import a hazardous product in accordance with the former Regulations; and (b) classify a product, mixture, material or substance in accordance with the former Regulations if they do so using a category or subcategory of a hazard class listed in Schedule 2 to the Hazardous Products Act as it read immediately before that day on which these Regulations come into force.” The option to use the former regulation ceases on “the third anniversary of the day on which these Regulations come into force.”

The benefits of the revisions to the HPR are clear and necessary to align with GHS. As the UN model is updated bi-annually, the update of the HPR to Rev 7 and certain aspects of Rev 8 will still lag with the current UN GHS Rev 9, and expected publication of UN GHS Rev 10 this year. It is difficult to imagine how both the United States and Canada will continue to align with the latest revisions of GHS within the burdensome regulatory processes that currently exist.