OHS Code Explanation Guide

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

Section 408 Claim for disclosure exemption

There may be situations where the release of certain information regarding a controlled product may result in financial loss to the supplier or employer relative to its competitors. Such information is termed confidential business information and is generally considered to be technical information about a product or its manufacturing process that has economic value or advantage and is known only to the producer or supplier. WHMIS provides a mechanism that allows employers to withhold genuine confidential information under certain circumstances.

An employer may obtain an exemption from disclosing
(a) the chemical identity or concentration of an ingredient in a controlled product,
(b) the name of a toxicological study that identifies the ingredient of a controlled product,
(c) the identity (chemical name, common name, generic name, trade name or brand name) of a controlled product, or
(d) information that could be used to identify the supplier of a controlled product.

Note that the exemption does not apply to other types of information required on the MSDS such as hazard information.

When a claim is filed with the Hazardous Materials Information Review Commission (HMIRC), four criteria are considered when determining whether a claim of confidential business information is valid:

(1) The information must be known only to designated persons. Information about the product must be known only to certain designated persons who have been employed by or are in a business relationship with the employer, government officials to whom the information has been disclosed in compliance with regulatory reporting requirements, and medical professionals to whom the information has been disclosed for the purpose of medical diagnosis or treatment.

(2) The employer must have taken reasonable care to maintain confidentiality of information. This includes alerting workers and business associates who are aware of the information that it must be considered confidential.

(3) The information must have economic value to the employer or competitors since it is not generally known and because disclosure would result in material financial loss to the employer or material financial gain to competitors.

(4) The information must represent a significant development cost to the firm. The money spent and business resources used to develop the information must be substantial and consistent with the cost and resources to develop similar information in the same industry.

If an employer files a claim for exemption to disclose confidential business information, the employer is permitted to delete the information from the MSDS or label, as applicable, on three conditions:

(1) The deleted information must be of the type permitted. Information, such as physical data, hazard information, preventative measures and first aid information may not be claimed as confidential.

(2) Where the subject of the claim is the chemical identity of a controlled product or any ingredient of a controlled product, the employer must disclose the generic chemical identity of the product or ingredient with as much precision as is consistent with the exemptions (Hazardous Products Act, Section 16). “Generic chemical identity” is the generic chemical class or category that is no broader than necessary to protect the specific chemical identity from disclosure and which is structurally descriptive of the chemical claimed as confidential business information. The functional identity of a product is not adequate. For example, an appropriate generic chemical identity for hydrochloric acid is “inorganic acid”.

Where several ingredients are exempt from disclosure and can be described with one generic chemical identity, the employer may use the one identity as long as it describes each of the ingredients with as much precision as is consistent with the exemption. For example, if disclosure exemptions were provided for the ingredients hexane, heptane and octane in a controlled product, the employer could use, in place of three generic chemical identities, the identifier “saturated aliphatic hydrocarbons”. The identity of the product may be provided as a code name or code number. The concentration or concentration range (as specified by Section 11 of the Controlled Products Regulations) must still be provided for the ingredient.

(3) The employer must include additional claim information on the MSDS and/or labels, where applicable.