Multiple departments and pieces of legislation are involved and apply to the labelling of hazardous chemicals in South Africa. The departments of Trade and Industry, Environmental Affairs, Transport, Labour Dept and the South African Bureau of Standards interact in the administration of chemical management, but Labour is leading the legislative reform that is required to comply with international labelling standards.
Compliance and cooperation within the international community began in the wake of the 2002 Treaty of Rio and led to the formulation of the Globally Harmonized System of Classification and Labelling of Chemicals (GHS).
The European Union has begun requiring compliance with GHS for chemical labelling since June 2015. South Africa provided commitments to compliance with GHS and participated in the capacity building projects of the UNITAR/ILO Global GHS Capacity Building Programme.
It was initially committed to compliance within 3 years (2012) for substances and 7 years (2016) for mixtures, there has however only been compliance in the field of transport and waste management. The SABS has adopted and updated SANS 10234 which incorporates the GHS classification but its enforcement is not compulsory with regard to labelling of consumer sized containers of hazardous products.
Multiple pieces of legislation have been passed that address hazardous chemicals, such as: the Hazardous Chemical Substances Regulations (1995) in the Occupational Health and Safety (OHS) Act No.55 of 1993 and the National Environmental Management Act No. 10 of 1998. Transport of Hazardous Substances is regulated in terms of the National Road Traffic Act No. 93 of 1996, the rights of consumers are addressed in the Consumer Protection Act No. 68 of 2008 (CPA) and SANS 10234 is referenced in the National Environmental Management Act no. 107 of 1998, which defines dangerous goods in section 1.
It is not yet compulsory to comply with the GHS and SANS 10234 in South Africa. At present only SANS 0228 and 0229 are enforced through older legislation such as the Road Traffic Act and the OHS.
The most onerous duties for manufacturers and suppliers of chemicals are contained in the regulations to the OHS Act, namely the Hazardous Chemical Substances Regulations of 1995. Regulation 9A provides the detail that must be contained in a material safety data sheet by suppliers. This is therefore not a labelling requirement but an information requirement for safety purposes.
The introduction of specific reference to compliance has only occurred in the Waste Classification and Management Regulations (Government Gazette No. 36784) that were published in GNR.634 of 23 August 2013 in terms of NEMWA. In these regulations “dangerous goods” were defined as goods containing any of the substances as contemplated in South African National Standard No. 10234, supplement 2008 1.00.
The CPA specifically requires that product labels have to clearly show their contents and trade details as well as describe any hazards. For instance if there is a risk that the product has an unusual characteristic or danger that an ordinary consumer wouldn’t be expected to know about, the supplier is compelled to bring these warnings and instructions to the customers attention in plain and understandable language.
From the above it is clear that legislation is lagging behind both commitment and international standards (although South Africa is not alone in this regard). It is presently only required that you label hazardous substances in terms of risk in terms of the CPA and no cases have dealt with complaints to the national consumer tribunal and the quantification of damages.
However, consumers may have noticed that some products are already labelled differently (with the introduction of red hazard symbols instead of yellow).
The phasing in of the GHS will affect, amongst others, technical experts responsible for chemical classification, labelling, compiling safety data sheets and registration of certain hazardous and toxic products as well as occupational health officers and officials responsible for risk assessment and communication.