Or: “When I use a word,” Humpty Dumpty said, … “it means just what I choose it to mean …”
Lewis Carrol “Through the Looking Glass” in Bartleby’s “A Dictionary of Quotations”:
Health Canada provided an FAQ presentation at a recent CIC (Current Issues Committee) meeting that may provide a useful lead in to the more detailed Guidance document published in December 2016.
The latter, “Technical Guidance on the Requirements of the Hazardous Products Act & Hazardous Products Regulations – WHMIS 2015 Supplier Requirements”, provides (at 540 pages) a detailed review of the content of the law and various aspects of guidance/interpretation. This document is available for download at:
The length of the document may be daunting to the casual user, so the FAQ presentation attempts to present Health Canada’s position on items that are of current concern.
The CIC is a multi-representative committee that meets several times a year to review, as it’s name implies, issues that can be improved to increase the effectiveness of WHMIS in helping to protect workers. Currently there are representatives from various government levels (Federal/Provincial/Territorial), Health & Safety organizations (e.g. CCOHS), industry organizations (e.g. RDC, CIAC, etc.) and Labour (CLC, Unifor, etc.).
One of the current issues being addressed is to form sub-committees that may streamline the effectiveness of the committee in considering jurisdictional issues; in addition to establishing a working group to look at aspects of products currently exempted from the Hazardous Products Act/Regulations.
An item that continues to cause concern is the necessity of distributing (Supplier) importers to ensure containers are labelled in a compliant fashion when they arrive at a customer’s site. WHMIS 1988 (Controlled Products Regulations, s.14.(2)(a)(ii)) allowed delivery to the customer without compliant WHMIS labels as long as the customer agreed in writing to apply the required labels. WHMIS 2015 does not include an equivalent provision. Thus, unless the customer can be designated as the importer, distributors cannot send labels to be applied on receipt of the product.
Provision of SDS- “Provide”?:
Health Canada maintains that the interpretation of “provide” for enforcement purposes requires the supplier to send an actual copy (e.g. electronic or paper) of the document, not just a link to an electronic source of the document (see last FAQ in the presentation).
It is unfortunate that Health Canada did not continue the wording from WHMIS 1988 (“…the supplier transmits…”- pre-2015 HPA s, 13(a)), with the associated definition (pre-2015 HPA s.11(1)):
“transmit” means to send or convey by any physical, electronic, optical or other means; [1999, c. 31, s. 127(E)]
The term “provides”, used in s. 13(1)(a.1) of the current HPA, is not defined within either the Act or Regulation.
What’s in a Word?
Early mentors of mine in the regulatory field (some of them lawyers) advised that words not defined within the text of an Act or Regulation are typically interpreted according to the common understanding as defined in a dictionary, such as the Oxford English Dictionary (OED).
The definition of transmit, and the cited alternates in the pre-2015 HPA definition referenced above, are all pretty clear in the intent to have something positively moved from one place to another.
“Provide”, however, is defined in the OED as (to) “Make available for use or supply…”.
Similarly, “Supply” is to “Make…available…; provide.”
Neither of these appear to mandate the interpretation given in the FAQ/Guidance.
Ain’t regulations grand?!
I suppose in the end, if Suppliers wish to make things passively available, they may have to rely on a Judge’s interpretation.
In the meantime, the presentation, available at the link below, covered 11 selected questions on: transition periods, exclusions, SDS, labels and consumer products (although CBI/Concentration ranges were listed as a topic of interest, no FAQ were included in this presentation- more news on this topic is expected later this year).
Additional FAQ are also available on the Health Canada website: