Substance Identity Masking

What's Your Name?

14 June 2019

Frequently, I receive questions about how to keep certain information, like the name of a substance, confidential from competitors in order to keep the commercial competitiveness alive in Canada.

Masking a notified substance name under the new substances' regime is regulated under section 313 of the Canadian Environmental Protection Act, 1999 (the Act). The Act basically states that "any person (now note that a person is an individual or a corporation), who provides information to the Government of Canada may submit a written request to treat the information they are providing as confidential". This nifty little feature ensures that Confidential Business Information (CBI) will be protected from public disclosure.

Nonetheless, when you want to keep the identity of your substance confidential, you must follow the procedures for generating such a "masked name". These procedures are found in the the Masked Name Regulations and, for those of us that need a little more than legalese, these procedures are also found in subsection 7.2.2.1 in the Guidelines for the Notification and Testing of New Substances (Chemicals and Polymers).

Proposing a Masked Name

Creating a masked name that meets the regulatory requirements is quite straightforward, but there is some technical thinking that must take place. You just can't call your substance "Bob's snake oil". Masking can only be accomplished by disguising structurally distinctive elements of the name presented in Box A. 20 of the New Substances Reporting Form, and that name must follow current nomenclature rules.  Please note, the Chemical Abstract Services (CAS for short) nomenclature is any CAS approved name (e.g., CA Index Name or CAS Synonym or any Inventory name).

Creating a masked name that robustly conceals your substance identity from your competitors, who are extremely well versed in the nuances and patterns of current nomenclature rules, can be far more challenging, often requiring multiple masking steps.  Masking is only allowed to the extent necessary to maintain your competitive edge, and any proposal beyond a simple single masking must be justified on a scientific/technical basis.

Is there a fee for masking the substance identity?

Yes, there is a fee associated with masking under the New Substances Fees Regulations of about $600 CAD.  Reduced fees may apply for small/medium companies.  

Is there a time limit for these claims?

This is a tricky question. Presently, substances published with a masked name claim do not have a "determinate" period, meaning that once published it is good for ever. However, here's the complicated part, the Government of Canada, in an effort to increase awareness of the substances in the Canadian market , is now recommending a 10-year cap for masked names. Having said this, please do not worry, before this 10-year period expires, Environment and Climate Change Canada will make every reasonable attempt to contact the submitters and request that they update and justify their claim. If accepted, an additional 10-year period will be granted.

Do you have any questions about this topic, the Chemicals Management Plan (CMP) or any other related topic? Contact our experts at Intertek (chemicals.sci-reg@intertek.com), we're here to help! 

References:

Masked Name Regulations – https://laws-lois.justice.gc.ca/eng/regulations/SOR-94-261/

The Guidelines for the Notification and Testing of New Substances (Chemicals and Polymers) –  http://publications.gc.ca/collections/Collection/En84-25-2005E.pdf

The New Substances Reporting Form – https://www.ec.gc.ca/subsnouvelles-newsubs/B6779D37-505D-44D8-AA98-DE78372DD309/NSN%20Form%20for%20C%26P%20-%20EN.pdf

The New Substances Fees Regulations – https://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-374/page-3.html

 

Dan Bastien
Associate Director - Chemicals Group,
Health, Environmental & Regulatory Services (HERS)

Today's expert blogger is Dan Bastien. Dan is the Associate Director of the Intertek Chemicals Group and is well known for his ability to effectively characterize and communicate the impacts of the regulatory environment on the chemical Industry. Dan is a subject matter expert in Canada with specific experience in the Chemical Management Plan (CMP), which includes Canada's New Substances Notification Program and the Assessment of Existing Substances. He has presented on these topics at numerous conferences around the world, held training sessions for the chemical industry, and co-authored guidance documents and other types of publications in Canada. Prior to joining Intertek, Dan managed, for over 20 years, the Client Services Unit of the New Substances and the evaluation of Existing Substance programs under the CMP. This makes Mr. Bastien uniquely qualified to provide practical, best-in-class service to help meet and understand Global Chemicals Management requirements.