Partially successful exempt information application example
This is a hypothetical example of an application where only some of the information applied for was granted exemption from publication.
The information provided in this example should not be taken to mean that all applications which disclose similar information or provide similar examples will have the same outcome.
An application for an assessment certificate under the Limited category is accompanied by an application for exempt information.
Data items requested to be treated as exempt information were:
- the chemical identity details including the chemical name, CAS number, structural formula and molecular weight, and
- use details, specifically the exact concentration of the notified chemical in end-use formulations.
As well as information in the application, a web search on the chemical’s International Nomenclature of Cosmetic Ingredients (INCI) name (how the chemical is known to the public and which is included on product labels, considered as basic information) reveals a number of sites in which the CAS number, and therefore the chemical identity, was disclosed.
Findings of fact
We made the following findings of fact based on the information submitted by the applicant and the information established during our assessment process:
- The chemical is used as a cosmetics ingredient.
- The notifier asserts that revealing the chemical identity in the NICNAS report would be detrimental as it is “CBI (confidential business information) and thus should be protected”.
- The notifier indicates that publishing the exact concentration (of the chemical in end-use products) in the public report could reveal important formulation details to their competitors. The applicant then quantified the money spent on developing the formulation.
- The notifier provided a non-confidential value (for example, < 10%) for the concentration of the notified chemical in end-use formulations for use in the public report. The non-confidential value was higher than the exact value.
Reasons for granting and denying exemption from publication
The following matters were considered when making the decision:
- The applicant did not establish a relevant commercial interest for all details requested:
- The applicant did establish a commercial interest in protecting the use details as they developed the end-use formulation and have kept the exact use concentrations confidential.
- The applicant did not establish a relevant commercial interest in protection of the chemical identity:
- The identity of the chemical was already in the public domain and connected to the INCI name (recorded on consumer product labels).
- The application for these data items was rejected. No further consideration regarding chemical identity was required.
- The applicant demonstrated that the publication of some or all of the chemical’s particulars could reasonably be expected to substantially prejudice the commercial interests of the applicant:
- The applicant demonstrated that the publication of the exact concentration of the notified chemical in end use formulations could cause substantial prejudice by describing the link between the publication of the information and use by competitors.
- The applicant estimated the amount spent on developing the formulation that would be lost if competitors were able to reproduce the formulation without having to incur the same research and development costs.
- The applicant demonstrated that the prejudice to their commercial interest outweighs the public interest in disclosure of the chemical’s particulars:
- The applicant provided a non-confidential value to be used in the published risk assessment that revealed the maximum concentration of the chemical in end-use formulations. Therefore, the public interest in disclosure of the exact concentration in the formulation is diminished.
Last update 29 July 2018