Confidential business information
Confidential business information (CBI) generally refers to technical information on a product or its manufacturing process that has economic value and that is usually known only to the producer. CBI is protected under WHMIS. Both suppliers and employers can file a claim to be exempted from disclosing information normally required on a label or SDS for a hazardous product if that information is considered to be CBI. A claim for exemption must be filed with Health Canada, which assesses its validity and ensures that the label and SDS for a product comply with all requirements for health and safety information. This process balances the worker’s right to know about hazardous materials with industry’s right to protect CBI.
Several acts and regulations have provisions related to the protection of CBI. Relevant federal legislation includes the Hazardous Products Act (HPA), the Hazardous Products Regulations (HPR), the Hazardous Materials Information Review Act (HMIRA), the Hazardous Materials Information Review Regulations (HMIRR) and the Hazardous Materials Information Review Act Appeal Board Procedures Regulations.
In Ontario, the Occupational Health and Safety Act and the WHMIS Regulation also include provisions governing the protection of CBI. The OHSA provides:
- that an employer may file a claim for exemption from disclosing information normally required on a label or SDS (section 40);
- that an employer’s claim for exemption is to be determined according to processes set out in the federal HMIRA (subsection 40(3));
- for an employer, worker, or trade union to appeal a determination made under the HMIRA (subsection 40(4));
- an exemption from disclosure while the claim is being determined and a three-year exemption from disclosure if a claim is found to be valid (subsection 40(6)); and,
- for the protection of CBI obtained by a Ministry of Labour employee or other person in specific circumstances (section 40.1).
The WHMIS Regulation prescribes:
- the types of information for which an employer may file a claim for exemption; and,
- specific information that must be disclosed on the label and SDS of a hazardous product that is the subject of an employer’s claim for exemption.
This section of the guide is an overview of provisions in the OHSA and WHMIS Regulation governing CBI. An employer wishing to file a claim for exemption should contact Health Canada for detailed technical guidance on:
- obtaining, completing and submitting a claim form;
- information required to support the claim;
- fees payable for filing a claim or an appeal;
- preparing a compliant label and SDS; and
- appealing a determination related to a claim.
Employer’s claim for exemption
What types of information can an employer claim as CBI?
An employer may file a claim for exemption from disclosing the following types of information on either a label or SDS (subsection 19(1), WHMIS Reg.):
- In the case of a material or substance that is a hazardous product:
- the chemical name of the material or substance,
- the Chemical Abstracts Service (CAS) registry number, or any other unique identifier of the material or substance, and
- the chemical name of any impurity, stabilizing solvent or stabilizing additive in the material or substance that:
- is classified in a category or subcategory of a hazard class under the Hazardous Products Act, and
- contributes to the classification of the material or substance in the hazard class;
- In the case of an ingredient that is in a mixture that is a hazardous product:
- the chemical name of the ingredient,
- the CAS registry number or any other unique identifier of the ingredient, and
- the concentration or concentration range of the ingredient;
- For a hazardous product that is either a material, substance or mixture, the name of any toxicological study that identifies either the material or substance, or any ingredient in the mixture;
- The product identifier of a hazardous product (i.e. its chemical name, common name, generic name, trade name or brand name);
- Information about a hazardous product, other than the product identifier, that could be used to identify it; and,
- Information that could be used to identify a supplier of a hazardous product.
Note: Under federal law, a supplier may file a claim for exemption from disclosing the information described in 1-3 above (subsection 11(1), HMIRA).
Health and safety information about a hazardous product can never be withheld from disclosure on a label or SDS (subsection 19(2), WHMIS Reg.).
If a claim is filed
An employer who has filed a claim with Health Canada may use the product for which the claim has been filed and may withhold the information that is the subject of the claim pending a final determination, but the SDS and, if applicable, the label or container of the product must show:
- the date the claim for exemption was filed, and
- the registry number assigned to the claim by Health Canada under the HMIRA (subsection 20(1), WHMIS Reg.).
The filing date and registry number must remain on the SDS or label:
- for 30 days after the claim is finally determined; or,
- if an order is issued under the HMIRA in relation to the claim, until the end of the period specified in the order (subsection 20(2), WHMIS Reg.).
If a claim is granted
If a claim or a portion of a claim for exemption is determined to be valid, the employer must disclose on the SDS and, if applicable, on the label or container of the hazardous product:
- a statement that an exemption has been granted;
- the date of the decision granting the exemption; and
- the registry number assigned to the claim by Health Canada under the HMIRA (subsection 23(1), WHMIS Reg.).
The employer must disclose this information beginning not more than 30 days after the final determination of the claim and ending on the last day of the exemption period (subsection 23(2), WHMIS Reg.). Under the OHSA, if a claim is granted, CBI is exempt from disclosure from the time a claim is filed until it is finally determined and for three years after that (subsection 40(6), OHSA).
Health Canada maintains a list of active claims on its website.
If a claim is rejected
If a claim for exemption is rejected in whole or in part, the employer has three options:
- Accept the decision and revise the SDS, and where applicable the label, to include the CBI that was the subject of the claim;
- Appeal the decision; or
- Withdraw the product from the workplace without revealing the information considered to be confidential.
Special SDS requirements
If an employer produces a hazardous product for use in its own workplace, and files a claim for exemption from disclosing CBI, the employer may be required to disclose prescribed information on the SDS in place of the information that is the subject of the claim. The following rules apply with respect to the SDS (section 21, WHMIS Reg.):
- If the hazardous product is a material or substance and the employer wishes to withhold:
- the chemical name of the material,
- its CAS registry number or other unique identifier, and
- the chemical name of any corresponding impurity, stabilizing solvent or stabilizing additive,
- If the hazardous product is a mixture and the employer wishes to protect information that would identify its ingredients — i.e. the chemical name of any ingredient and the CAS registry number or other unique identifier of any ingredient — the employer’s SDS must include the generic chemical name of each ingredient that is the subject of the claim that:
- individually is classified in a category or subcategory of a hazard class listed in the HPA, and that is present above the designated concentration for that category or subcategory; or
- is present at a concentration that results in the mixture being classified in a category or subcategory of a hazard class (subparagraph 1.ii. of section 21, WHMIS Reg.).
- If the product identifier (i.e. chemical name, common name, generic name, trade name or brand name) is the subject of the claim, the SDS must include the code name or code number of the hazardous product in place of the product identifier (paragraph 2 of section 21, WHMIS Reg.).
Disclosure of CBI in a medical emergency
In a medical emergency, an employer must provide information about a hazardous product, including CBI, to a medical professional who asks for it in order to make a diagnosis or give treatment (section 24, WHMIS Reg. and clause 25(2)(b), OHSA).
Disclosure of CBI to government officials
The federal HMIRA permits CBI obtained from a supplier or employer to be disclosed to certain government officials for the purpose of administering or enforcing prescribed legislation. Specifically, CBI may be given to a provincial government official for the purpose of enforcing occupational health and safety laws if, under the laws of that province, the CBI is protected (clause 46(2)(e), HMIRA).
In a workplace in Ontario where a chemical is used whose identity has been withheld from labels and safety data sheets because it is the subject of a claim for exemption and Regulation 833, Control of Exposure to Biological or Chemical Agents, sets a limit for exposure to that chemical, a Ministry of Labour inspector would need to know the identity of the chemical to ensure worker exposure to it is properly controlled. The inspector could obtain the identity of the chemical from a person acting under the authority of the HMIRA.
Under the OHSA, a Ministry of Labour employee who obtains CBI from a person acting under the authority of the HMIRA is prohibited from disclosing that information, except to another MOL employee, for the purpose of enforcing the OHSA; or, to a medical professional who asks for the information to make a diagnosis or provide treatment in an emergency (section 40.1, OHSA).
The OHSA provides for an employer, any worker of the employer, or a trade union representing the employer’s workers to appeal a determination made under the federal HMIRA in relation to a claim for exemption. The appeal must be filed and determined in accordance with processes set out under the HMIRA (subsection 40(4), OHSA). An appeal can relate to a decision or order on the validity of a claim for exemption, or to a decision, order or undertaking related to the compliance of a label or SDS associated with a claim.