OHS Code Explanation Guide

Published Date: July 01, 2009
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Part 29 Workplace Hazardous Materials Information System (WHMIS)

Section 395 Application

Subsections 395(1) and 395(2)

No explanation required.

Subsection 395(3)

Products that are completely exempt from the requirements of WHMIS are:
(a) wood or products made of wood,
(b) tobacco or a tobacco product,
(c) a hazardous waste, or
(d) a manufactured article.

Subsection 395(3)(a)

This exemption is meant to refer to a structural item composed entirely or in large measure of wood, but does not consist of products derived from wood such as turpentine, paper, wood pulp and wood dust. Examples of products to which this exemption applies include lumber of all sizes, laminated beams, plywood, chipboard, particleboard, wood chips, sawdust and products that have been coated with paints or preservatives. At facilities where specialized products made of wood are manufactured, additives such as adhesives, paints and preservatives are subject to all applicable WHMIS information provisions prior to being added to the finished product.

Wood dust that is sold or imported for use at Canadian workplaces and meets the criteria for a controlled product is not exempt from WHMIS.

Subsection 395(3)(b)

The federal Tobacco Act defines a tobacco product as “a product composed in whole or in part of tobacco leaves and any extract or tobacco leaves. It includes cigarette papers, tubes and filters but does not include any food, drug or device that contains nicotine to which the Food and Drugs Act applies”. While products made of tobacco (including cigarettes, cigars, chewing tobacco and snuff) are exempt from the WHMIS provisions, products derived from tobacco, such as nicotine, are not.

Subsection 395(3)(c)

Examples of hazardous waste include solid and liquid materials such as waste insulation in asbestos removal projects, contents of tailing ponds or sewage systems and products for recycling such as engine oil. A by-product of a production process that is recycled or otherwise used on-site is not a hazardous waste e.g. black liquor in the pulping process. A by-product supplied to a party off-site for use as is (is not subjected to a conversion process such as recycling or recovery) is also not a hazardous waste. The definition of hazardous waste implies an intent to manage or handle the product.

Subsection 395(3)(d)

A manufactured article is an article that meets three conditions:
(1) it is formed to a specific shape or design during manufacture;
(2) its intended use when in that form depends in whole or in part on its shape or design as manufactured; and
(3) under normal conditions of use, it will not release or otherwise cause a person to be exposed to a controlled product.

Other relevant points related to the manufactured article exemption are:

(a) If a product does not contain a controlled product when it is sold or imported, it is not subject to the federal aspects of WHMIS under the Hazardous Products Act, even if a controlled product is formed and released when the article is used.

(b) Normal conditions of use exclude releases of a controlled product that occur during installation, maintenance or occur if the article is abused. For example, normal conditions of use for a carpet or pipe are to be walked on or to carry fluid, respectively. Releases of controlled products from a carpet that occur during installation or from a pipe when it is welded or cut do not preclude these items from being included in the exemption.

(c) The release of trace amounts of controlled product from manufactured articles does not preclude the articles from being included in this exemption.

(d) If a controlled product is a manufactured article but not exempt because it releases, under normal conditions of use, a controlled product, the supplier must provide hazard information and ingredient identity and concentration information related only to those ingredients that are controlled products and are released under normal conditions. Hazardous decomposition products and hazardous combustion products of which the supplier is aware, or ought reasonably to be aware, that are released during normal use of articles that are controlled products must be identified on the MSDS. The supplier is not expected to give toxicological data on probable releases that are not ingredients of the product.

(e) If a product releases hazardous chemicals under normal conditions of use, and the supplier is uncertain about which chemicals they are, the supplier must provide general warnings about possible toxic releases on the MSDS. Any other hazard information that the supplier is aware of, or ought reasonably to be aware of, must also appear in the MSDS.

The following are examples of how the manufactured article exclusion is applied:

  • Welding rods are not a manufactured article because they release, during normal use, controlled products that they previously contained (metal fume).
  • Precut threaded piping is a manufactured article because it does not release contaminants during its intended use of conveying fluids.
  • Specific friction products that contain asbestos are manufactured articles e.g. brake shoes fitted with pre-arced linings. While workers may be exposed to asbestos fibres while installing or maintaining these articles, exposure is not likely during their use for the purpose of braking. However, sheets of friction materials such as gaskets which contain asbestos and are made with the intent of later being cut or shaped to form specific products, are not manufactured articles.
  • A cylinder produced to contain acetylene is a manufactured article. Once it is filled with acetylene, it becomes a container for a controlled product and when sold as such, must be provided with a WHMIS label and MSDS. A refrigerator is a manufactured article consisting of various components, including a system containing compressed gases. However, unlike the compressed gas cylinder, the refrigerator is not considered to be a container of a controlled product.

Subsection 395(4)

The Alberta Dangerous Goods Transportation and Handling Act deals with the shipping of hazardous products in the province. The Alberta Dangerous Goods Transportation and Handling Regulations made under the Act adopt, with some modifications, the federal Transportation of Dangerous Goods Regulations (TDGR) with respect to the classification and labelling of products being transported or offered for transport. TDGR and WHMIS are complementary systems. TDGR covers information requirements when products are shipped to or from workplaces, while WHMIS applies to products at the workplace. No overlap is intended; one system takes over where the other leaves off. Although WHMIS labels and MSDSs may be provided with shipments, the WHMIS requirements only apply at the point of sale and at the workplace after the controlled product is received.

Dangerous goods include a product, substance or organism listed in Schedule II of the TDGR or substances that are otherwise classified as dangerous goods through application of criteria described in the TDGR. The TDGR does not apply to the transport of oil or gas in a pipeline where this is governed by federal or provincial legislation.

“Handling and offering for transport” refers to activities such as assembling, packaging, storing, loading and unloading for transport. For example, WHMIS does not apply to products while in temporary storage in a distribution warehouse.

“Storing for transport” is storage where goods will not be handled any further at the workplace other than to load them directly onto a transport vehicle for the purpose of removal from the workplace.

“Transportation” means to and from workplaces. WHMIS applies to all circumstances where goods are transported from one point to another within a workplace, except for radioactive substances and explosives, in which case TDGR applies.

“Warehousing” means where a controlled product is stored prior to transport. WHMIS would apply in a warehouse where the products are handled, repackaged, used, processed or sold.

The exemption for products being transported is because training requirements for workers transporting dangerous goods are already covered in TDGR. However, drivers are often exposed to the controlled product by being actively involved in its loading or unloading. MSDSs must be readily available to the driver, and other transportation workers, who may be exposed to a controlled product.

Subsection 395(5)

Ten types of products are partially excluded from the WHMIS information requirements, even if the products meet the criteria for inclusion within one or more of the WHMIS classes. Products exempt from the requirements related to labelling and MSDSs include:
(a) explosives within the meaning of the Explosives Act;
(b) cosmetics, drugs, foods or devices within the meaning of the Food and Drugs Act;
(c) control products within the meaning of the Pest Control Products Act;
(d) nuclear substances within the meaning of the Nuclear Safety and Control Act; and
(e) restricted products (products, materials or substances included in Part II of Schedule I of the Hazardous Products Act) when packaged as consumer products in accordance with the federal Consumer Chemical Containers Regulations.

Subsection 395(5)(a)

The Explosives Act (Canada) defines an explosive as “any thing that is made, manufactured or used to produce an explosion or a detonation or pyrotechnic effect, and includes any thing prescribed to be an explosive by the regulations, but does not include gases, organic peroxides or any thing prescribed not to be an explosive by the regulations”. In the Explosives Regulations, the definition includes “gunpowder, propellant powders, blasting agents, dynamite, detonating cord, lead azide, detonators, ammunition of all descriptions, rockets, fireworks, fireworks compositions, safety flares and other signals”.

The Explosives Act, which is administered by Natural Resources Canada, controls the manufacture, testing, sale, storage and importation of explosives. Explosives are distinct from substances such as ethers or furans which may form explosive peroxides, and picric acid which may become explosive when dry. These products are considered to be controlled products belonging in Class F, Dangerously Reactive Material.

Subsection 395(5)(b)

The federal Food and Drugs Act, administered by Health Canada, defines cosmetics, drugs, foods and devices. The Act controls the sale, advertisement, manufacture, packaging and labelling of these products from the viewpoint of preventing economic fraud and health and safety hazards. Of the four types of products legislated by the Act, drugs are the most likely to contain controlled products.

“Cosmetic” includes any substance or mixture of substances manufactured, sold or represented for use in cleansing, improving or altering the complexion, skin, hair or teeth, and includes deodorants, perfumes, soaps, tattoo inks and products used to groom animals.

“Drug” includes any substance or mixture of substances manufactured, sold or represented for use in
(a) the diagnosis, treatment, mitigation or prevention of a disease, disorder, abnormal physical state or the symptoms thereof, in man or animal,
(b) restoring, correcting or modifying organic function in man or animal, or
(c) disinfection in premises in which food is manufactured, prepared or kept.

A “drug” as defined in the Act includes any raw material that is itself a drug or is used to manufacture a drug in dosage form. Therefore, raw materials that are drugs or are used in the manufacture of drugs are also excluded from the labelling and MSDS requirements of WHMIS. All drugs are issued a Drug Identification Number (DIN) which must appear on the label.

Cosmetics and drugs are defined in terms of being sold or represented for specific purposes. A controlled product sold as a drug or cosmetic would be subject to WHMIS requirements if it were sold for another use. For example, the chemical 2,4-diaminoanisole is excluded from WHMIS supplier requirements when sold in hair dye mixtures, but is included when used as a fur dye. Cosmetics and drugs are usually products that are applied on or taken into the body. A hair dye is a cosmetic, but the formaldehyde solution used to disinfect a hairbrush is not.

“Food” includes any article manufactured, sold or represented for use as food or drink for man, chewing gum and any ingredient that may be mixed with food for any purpose whatever.

Note that when a product normally considered a food has a non-food use at the workplace, it is not excluded from WHMIS. For example, flour, which is a respiratory tract sensitizer, falls within WHMIS Class D if sold and used as an additive or an industrial filler.

“Device” means any article, instrument, apparatus or contrivance, including any component, part or accessory thereof, manufactured, sold or represented for use in
(a) the diagnosis, treatment, mitigation or prevention of a disease, disorder or abnormal physical state, or the symptoms thereof, in man or animal,
(b) restoring, correcting or modifying a body function or the body structure of man or animal,
(c) the diagnosis of pregnancy in humans or animals, or
(d) the care of humans or animals during pregnancy and at and after birth of the offspring, including care of the offspring, and includes a contraceptive device but does not include a drug.

Subsection 395(5)(c)

The Pest Control Products Act (Canada) defines a control product as “any product, device, organism, substance or thing that is manufactured, represented, sold or used as a means for directly or indirectly controlling, preventing, destroying, mitigating, attracting or repelling any pest, and includes
(a) any compound or substance that enhances or modifies or is intended to enhance or modify the physical or chemical characteristics of a control product to which it is added, and
(b) any active ingredient used for the manufacture of a control product.”

A “control product” under the Pest Control Products Act is not to be confused with a “controlled product” under the Hazardous Products Act.

Examples of pest control products include insecticides, fungicides, algaecides, herbicides, rodenticides, insect repellents, pet repellents, insect attractants, plant growth regulants, microbial control agents, disinfectant type products and devices for pest control. The product is also classified as a pest control product if a claim is made that it disinfects or controls bacteria. For example, bleach that contains sodium hypochlorite is considered to be a pest control product if the manufacturer claims it is a disinfectant. Pest control products are labelled with pest control product numbers that indicate the product is registered under the Pest Control Products Act. There are exceptions to this where the product is used for research and for seed treatment or cleaning.

Like cosmetics and drugs, pest control products are defined in terms of intent for use. Any controlled product used in a pesticide, but manufactured and intended for another use is subject to WHMIS requirements. For example, Stoddard solvent is used as a herbicide, but has a variety of other industrial applications as a solvent and cleaning agent.

Subsection 395(5)(d)

The Nuclear Safety and Control Act (Canada), administered by the Canadian Nuclear Safety Commission, defines a nuclear substance as:
(a) deuterium, thorium, uranium or an element with an atomic number greater than 92;
(b) a derivative or compound of deuterium, thorium, uranium or of an element with an atomic number greater than 92;
(c) a radioactive nuclide;
(d) a substance that is prescribed as being capable of releasing nuclear energy or as being required for the production or use of nuclear energy;
(e) a radioactive by-product of the development, production or use of nuclear energy; and
(f) a radioactive substance or radioactive thing that was used for the development or production, or in connection with the use of nuclear energy.

The overall objective of the Nuclear Safety and Control Act is the control and supervision of the development, application and use of atomic energy.

Subsection 395(5)(e)

A product, material or substance included in Part II of Schedule I to the Hazardous Products Act is a “restricted product” and cannot be sold unless it meets the requirements of the applicable regulations. In the case of chemical products, the applicable regulations are the Consumer Chemicals and Containers Regulations (CCCR). To be packaged as a consumer product, the product must be
(a) packaged for the consumer (it is in a size of container or package in which it is sold and normally displayed to the consuming public), and
(b) available to the general public through retail systems either at outlets or on a door-to-door basis.

Quantities available to the consuming public vary from product to product. For example, paint may be available in containers in sizes up to 20 litres. Whether or not a product is a consumer product does not depend on how many containers are purchased at one time.

While these products are exempt from the WHMIS supplier information requirements, the employer must still provide work site labelling on containers into which the products are decanted and workers must be instructed in the hazards of the products and proper procedures for handling them.