What recourse does a supplier have if the supplier considers an ingredient that is subject to disclosure to constitute proprietary information under WHMIS?

                                                                                         

Under WHMIS legislature the ingredient disclosure is subject to the provisions of the Hazardous Materials Information Review Act (HMIRA). This Act is put into law to protect workers in Canada from the hazardous chemical products they come into contact daily. In Canada all manufacturers and distributors of controlled products under the Hazardous Products Act (HPA) and Canada Labour Code (LCL) must give chemical identities and other informationin regards to the chemical. This information is written in a material safety data sheet (MSDS) and needs to include the possible health and safety risks from using the product, along with instructions for safe-handling, storage, transportation, disposal, and first-aid treatment.

However sometimes a chemical company does not want to disclose certain information in regards to the chemical composition. The HMIRA states that these chemical companies have the right to keep confidential information private from the public and their competitors. This means if the company has a chemical with proprietary ingredients they do not have to disclose it on a MSDS under WHMIS criteria. This exemption is called the WHMIS trade secret mechanism and is administered by the Hazardous Materials Information Review Commission (MHIRC).

The type of information that can be claimed as a trade secret is stated in the HMIRA under section 11:

1. A supplier may file a claim for exemption from disclosing:

2. The chemical identity or concentration of any ingredient of a controlled product, or

The name of any toxicological study that identifies any ingredient of a controlled product.

The HMIRC has certain criteria that assess the need for the trade secret claim. They are as follows:

1. Information must be known only to designated persons

2. The claimant must have taken reasonable care to maintain confidentiality of information

3. The information must have economic value to the claimant or competitors

4. The information must represent a significant development cost

Section 16 of the HPA states when a supplier has been exempt from disclosing a chemical identity "the supplier shall disclose on the MSDS or label the generic chemical identity of the controlled product or ingredient with as much precision as is consistent with the exemption."

Section 27 of the Controlled Products Regulations (CPR) sets out the information to be disclosed on the MSDS upon being exempt:

1. A statement that an exemption has been granted

2. The date of the decision granting the exemption

3. The registry number

4. The generic chemical identity

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