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ERA's Environmental Compliance Management Blog

Protect Trade Secret Ingredients in Chemical Products: HPR Amendment

Posted by Cindy Ranganathan

What is HPR (Hazardous Product Act)?

Chemist working with hazardous chemical productsHPR is the shorthand reference for the Hazardous Products Act. As shown in the Canada Gazette Part II of February 11th, 2015, the Government of Canada published the HPR, bringing WHMIS 2015 (Workplace Hazardous Materials Information System) into force. WHMIS 2015 implements the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The new HPR replaces the older CPR, which had listed the requirements for WHMIS 1988 compliance.

For any business that manufactures chemical products in Canada, as well as any business that exports to Canada, WHMIS 2015 and the Hazardous Products Act (HPR) will have major ripples across North American chemical standards.

How to Protect Trade Secret Ingredients

Rising concerns regarding the protection of “trade secret” ingredients has been addressed within the new Hazardous Products Act (HPR), which comes into force June 1st, 2018. An amendment to the HPR has recently been finalized by Health Canada. This will grant suppliers, distributors, employers and importers an option to protect “trade secret” ingredients on Safety Data Sheets (SDS). This decision will aid in aligning more accurately with the OSHA Hazard Communication 2012 (HCS 2012), while maintaining an available option from the repealed Controlled Products Regulations (CPR).

In the CPR, 11 prescribed ranges were laid-out which were used to practice confidentiality.

In the initial publication of the HPR, Health Canada did not retain these prescribed concentration ranges for protection. Instead, if a chemical contributed to a health hazard, the actual concentration or the actual concentration range was mandated to be listed in Section 3 of the Safety Data Sheets (SDSs).

In fact, to protect the actual concentration or actual concentration ranges, a claim was required to be filed for CBI (Confidential Business Information) protection under the Hazardous Materials Information Review Act (HMIRA). The CBI protection needed to be used for any of the following with respect to Section 3:

  • Mask the CAS registry number.
  • Mask the chemical identity.
  • Mask the chemical’s actual concentration or actual concentration range.

Once a CBI claim is validated, a HMIRA registry number (RN) is provided which needs to be displayed along with the granted or filed date.

HMIRA Registry Number example on a hazardous chemical product

When is the HPR Deadline?

Currently, there is a transition period before the full-force of the HPR takes effect. Until May 31st, suppliers and manufacturers can choose to comply with either the CPR or the HPR. After June 1st, 2018, manufacturers and importers are obliged to comply solely with the HPR, with both suppliers and employers gradually joining until the final December 1st deadline, as referenced in the table below:

Hazardous Products Act deadlines table

As shown in the Canada Gazette Part I of October 21st, 2017, the Government of Canada published various addressed issues, which included several regarding the display of CBI unless filed with HMIRA. The proposed amendment to the HPR would indicate the allowance of prescribed concentration ranges to protect the actual concentration and actual concentration ranges without requiring filing with HMIRA.

Later, in the Canada Gazette Part II of April 18th, 2018, HPR amendments were finalized, reinforcing the prescribed concentration ranges from the repealed CPR.

What are the HPR Concentration Ranges?

The following 13 prescribed concentration ranges have been defined and can be used for the purposes of protecting “trade secret” ingredients:

  • (a) 0.1 to 1%
  • (b) 0.5 to 1.5%
  • (c) 1 to 5%
  • (d) 3 to 7%
  • (e) 5 to 10%
  • (f) 7 to 13%
  • (g) 10 to 30%
  • (h) 15 to 40%
  • (i) 30 to 60%
  • (j) 45 to 70%
  • (k) 60 to 80%
  • (l) 65 to 85%
  • (m) 80 to 100%

How to Use HPR Concentration Ranges

Below is a list of different scenarios that may be applicable to the use of prescribed concentration ranges on a Safety Data Sheet:

Scenario 1 – Using the Prescribed Concentration Ranges for the Actual Concentration of an Ingredient

If the actual concentration of an ingredient falls under more than one of the previously listed prescribed concentration ranges, then the selection of the range is at the discretion of the supplier or manufacturer.

Example for scenario 1:

Trade Secret Ingredient Range for Chemical Products

Scenario 2 – Using the Prescribed Concentration Ranges for the Actual Concentration Range of an ingredient

If the actual concentration range of an ingredient does not fall under one of the previously listed prescribed concentration ranges and it falls below 30%, then a customized combination of two consecutive ranges is allowed.

Example for scenario 2:

Merging HPR Chemical concentration ranges for trade secret ingredients

How does HPR Affect my Business?

This HPR amendment only applies towards the protection of the actual concentration and actual concentration ranges for trade secret ingredients. If a prescribed concentration range is used, a statement is required that identifies it is protecting a trade secret ingredient. This needs to appear immediately following the use of a prescribed concentration range or at the end of the list of ingredients (in the latter scenario, Health Canada explained that an asterisk or footnote can used to reference the ranges it is applicable for).

If there is a need to mask the CAS registry number and/or the identification of a trade secret ingredient, the filing of a claim under HMIRA would still be necessary. Likewise, if there is a need to display a range outside of the prescribed concentration range, this would also need to still be filed under HMIRA.

Watch a Free WHMIS 2015 Webinar Video

The Globally Harmonized System (GHS) specialists at ERA hosted a live WHMIS 2015 webinar, and we recorded it so that you can now watch it on demand. The free webinar goes into more depth about how to use the chemical concentration ranges for HPR compliance, in addition to examining the Confidential Business Information (CBI) process under WHMIS in greater detail.

We invite you to watch the webinar online by clicking the button below.

WHMIS Webinar Download Button displaying a keyboard and coffee

Topics: GHS, SDS Authoring, SDS