It wasn’t supposed to be this way. The Global Harmonized System was supposed to be just that – a seamless harmonized set of classification and communication standards as applied to hazardous chemical products worldwide. Safety Data Sheets (nee MSDS) and labels would, in meeting the standards of one country – necessarily meet them all. At least between United States and Canada, no?

Variances Between HCS 2012 and HPR

With the introduction of GHS, both Canada’s Hazardous Products Regulations (HPR) and the United States Hazard Communication Standard (HCS) 2012 underwent a re-write to build GHS into their respective provisions. Much was no doubt achieved in permitting the cross-border flows of hazardous products with shared classifications and hazard communications – without the need for US-Canada country-specific packaging/labelling (and the French language requirements could always be managed.)

But the GHS-compliant HCS 2012 isn’t identical to the GHS-compliant HPR and Health Canada, to their credit, has acknowledged this but assures us that the variances between the two can be met with a single label and SDS in respect of each variance. The problem is that Health Canada won’t say how this is done.

But Doesn’t Over-Inclusion Create an “Erroneous Impression” as to What’s Required?

The obvious approach in managing the variance is to do both: meet the requirements of the both HCS 2012 and HPR on the same label and SDS and claim the lawyers made me do it. But will this work?

Section 14.2 of the Hazardous Products Act (under which the HPR are created) prohibits packaging or SDS which contains:

information about the hazardous product that is false, misleading or likely to create an erroneous impression, with respect to the information that is required to be included in a label or safety data sheet for that hazardous product in order for the supplier to comply with the requirements [of the HPR].

It would be doubtful that additional labelling/SDS content to meet HCS 2012 would, in itself, be “false or misleading”. But what about “creating an erroneous impression” as to the HPR requirements? Doesn’t adding HCS 2012-required (but not mandated by HPR) create the impression that the HCS-2012-required content is, in fact, mandated by HPR? What does the label and/or SDS need to say to dispel this erroneous impression? Does the origin of the product contribute to the “impression” as to which legal compliance is being sought?

Doesn’t the HCS 2012 Also Prohibit Over-inclusion?

Paragraph C.3.1 of the HCS 2012 prohibits information which “casts doubt” that the information provided is “standardized”:

To ensure that non-standardized information does not lead to unnecessarily wide variation or undermine the required information, supplementary information on the label is limited to when it provides further detail and does not contradict or cast doubt on the validity of the standardized hazard information.

Doesn’t “standardized” mean in accordance with the standards of HCS 2012? If the intention was to allow for an compliance with an edition of GHS other than its adoption under HCS 2012, won’t this have been made clear? In other words, couldn’t the HCS 2012 and the HPR merely stated that compliance with any GHS edition requirement (or perhaps the local statutory adoption of same) was permissible if this was the intention?

More Variance to Come?

With the rejection of the Trans Pacific Partnership and uncertainty around NAFTA and the seamless flow of goods across the parties’ borders, we may well find that international standards such as GHS are more localized within the US (perhaps with repercussions in Canada and Mexico), making this ambiguity in both the HCS 2012 and the HPR and need for clearly considered variance-management strategies more important in the years to come.

Jonathan Cocker heads the Firm’s Environment & Environmental Markets Practice Group in Toronto, where he also serves as chair of the Pro Bono Committee. He authored the Global Climate Change Law Guide, and has worked with the Management Board Secretariat of the Government of Ontario. Mr. Cocker has represented a wide range of clients before various administrative boards, the Superior Court of Justice and the Federal Court of Canada, among others.