UPDATE – The Government of Canada’s Approach to Promote Transparency in Chemicals Management

16 Dec 2019

Can I Now Share Your Secret?

So much has been happening in Canada on the topic of transparency and the release of Confidential Business Information (CBI) since our original blog was published.

The first 3 stages to release the masked name of the 23 identified substances of the pilot project have been concluded, notably:

Stage 1:	Communicate with persons that have submitted confidentiality claims more than 10 years ago or that have submitted confidentiality claims that will soon reach the 10‑year expiry date;
Stage 2:	Analyze the responses (or no responses) and prepare a Notice of Intent (NOI) that will be published; and
Stage 3:	Publish the NOI to amend the Domestic Substances List (DSL) to disclose the identity of certain substances currently identified by a masked name [gazette.gc.ca]on November 30, 2019 in the Canada Gazette, Part I.

If the Government of Canada does not receive acceptable justification to keep the substances on the confidential portion of the DSL, they will move to Stage 4 and will remove the substances from the DSL and add them to the public section of the DSL in the Canada Gazette, Part II.

What, if anything, should I do right now?

You need to review the list of substances published and determine whether you are importing or manufacturing any of the identified substances.  If you are, you should determine whether maintaining the confidentiality of your substance is still important to your business.  If your company wants to retain confidentiality, you will have to submit a request to the Government no later than December 30, 2019.

Can I request an extension to the December 30th date?

Extensions are always possible with a justification.  Please note that these extensions are given on a case-by-case basis and should be requested at least 7 days before the deadline (December 23, 2019).

How do I claim confidentiality?

As discussed in the previous blog, you should only claim confidentiality when the information is truly confidential, such as when it is a trade secret or where its disclosure could negatively impact your competitive or financial position in Canada.  If you are requesting that the substance remain on the confidential potion of the DSL, you will have to provide a rationale, such as:

• It is a trade secret;
• It is information of a financial, commercial, scientific, or technical nature that is treated consistently in a confidential manner;
• Its disclosure could reasonably be expected to result in material financial loss to the submitter or gain to competitors, or could reasonably be expected to prejudice the competitive position of the submitter; or
• Its disclosure could reasonably be expected to interfere with contractual or other negotiations of the submitter.

What if my company submitted the original information but the person who made the submission is no longer with the company?

The Government will accept information and work with someone else as long as they are employed by the company.  However, the critical danger is that the Government of Canada's notification letter may not reach the appropriate person or department and may get lost in the process.  As discussed in our previous blog , it is important to advise the Government whenever there is a change in contact information (e.g., person's name, email address, street address, etc.). The Government will only communicate with the person identified on the notification or nomination documents.  We suggest that you complete the form included in the advisory note (https://www.canada.ca/en/environment-climate-change/services/managing-pollution/evaluating-new-substances/biotechnology-living-organisms/advisory-notes/march-1996.html).

I heard the Government wants us to update the Masked Name supplied originally?

That is correct, the Government wants to ensure that the rules from the Masked Name Regulations are followed.  I invite you to review and ensure compliance with the New Substances: advisory note of January 2015 (Masking substance names for New Chemicals and Polymers under the Canadian Environmental Protection Act, 1999, when the substance identity is claimed as confidential) https://www.canada.ca/en/environment-climate-change/services/managing-pollution/evaluating-new-substances/biotechnology-living-organisms/advisory-notes/january-2015.html.  If you meet the masking as described in the advisory note, you do not have to update the name and can inform the Government that your masked name follows the instruction from the advisory note.

Conclusion

It is important to understand this new initiative, as this notice is just the first of many as the Government of Canada works to review the Confidential DSL in its entirety and listings reach their sunset dates in the future.  Do you have questions about this topic, the changes being made to the duration of substance identity CBI claims, the Chemicals Management Plan (CMP), or a related topic?  Do you need support with preparing a confidentiality justification or revising a masked name to meet the existing Masked Name Regulations?  Contact our experts at Intertek.  We're here to help! 

References:

The Canadian Environmental Protection Act, 1999
https://laws-lois.justice.gc.ca/eng/acts/C-15.31/index.html

2018 Approach to disclose confidential information and promote transparency in chemicals management
https://www.canada.ca/en/environment-climate-change/services/evaluating-existing-substances/proposed-approachpromote-transparency-in-chemicals-management-plan-risk-assessment-activities.html

Notice of Intent to amend the Domestic Substances List to disclose the identity of certain substances currently identified by a masked name
http://www.gazette.gc.ca/rp-pr/p1/2019/2019-11-30/html/notice-avis-eng.html#nH1

Interpretation of "Person" Advisory Note
https://www.canada.ca/en/environment-climate-change/services/managing-pollution/evaluating-new-substances/biotechnology-living-organisms/advisory-notes/march-1996.html

Masked Name Regulations
https://laws-lois.justice.gc.ca/eng/regulations/sor-94-261/index.html

New substances: advisory note January 2015 - Masking substance names for New Chemicals and Polymers under the Canadian Environmental Protection Act, 1999, when the substance identity is claimed as confidential
https://www.canada.ca/en/environment-climate-change/services/managing-pollution/evaluating-new-substances/biotechnology-living-organisms/advisory-notes/january-2015.html