Reread the Label? Industrial Products Entering the Consumer Space Can Cause Chorus of Confusion
June 7th, 2018
If there is one thing I’ve learned in life, it is that nothing is ever simple … especially when you are dealing with regulations.
I’ve recently been spending time working on consumer and industrial labels, and it has been interesting to compare the two. Both are meant to keep users safe, but they take much different approaches to achieve that goal.
The consumer regulations take a risk-based approach while the U.S. Occupational Safety and Health Administration (OSHA) with its Hazard Communication Standard (HCS) 2012 as well as the Globally Harmonized System of Classification and Labelling of Chemicals (GHS) in general, take a hazard-based approach.
So, what is the difference?
Namely that the risk-based approach takes exposure into account. A material could have a high hazard, but if it is in a very small amount where there is little chance of exposure, the risk is low. The consumer-based approach requires that the person labeling the material take both the hazard and the exposure into account and then communicate how to mitigate the risk to consumers. HCS 2012 does not consider the exposure, it only communicates the hazards. Determining overall exposure, and therefore risk, is the responsibility of the site safety person in an industrial setting.
I suppose this makes sense. We don’t have people in our homes telling us to open a window or turn on a fan to reduce exposure to a chemical, so the responsibility for providing information on safety falls to the supplier. They must anticipate the conditions under which consumers might use the product and communicate warnings/advice on how to use it.
It’s different in an industrial setting. While the hazard communication is hazard-based, OSHA also requires employers to develop a hazard communication program to identify the hazards of the chemicals being used and to train employees on safe use. Since the employer has a full view of the materials used on site, they are in a good position to help mitigate risk and keep their workers safe.
So, when is a product considered consumer instead of industrial? I was recently in a training course on consumer labeling at the spring Society for Chemical Hazard Communication (SCHC) conference, and this was one of the hot topics. With the popularity of internet shopping where scores of “industrial” products are readily available, the line between what is a consumer and what is an industrial product has become blurred. Many products intended for industrial use are finding their way into the hands of the consumer. These include things like solvents, adhesives, strippers and coatings. Even when consumers buy industrial products, the supplier is still responsible for the appropriate labeling of their materials. So what is a supplier to do?
In the class, several strategies were discussed. These included:
- Labeling for the consumer only.
- Labeling with both consumer and OSHA requirements.
- Putting notes on the packaging stating that the product is for industrial/professional use.
- Controlling the supply chain so that an industrial product cannot be sold to consumers.
There didn’t seem to be a consensus on which method to use, but it piqued my curiosity nonetheless.
To start, we need to look at what a consumer product is. In jumping into whether your “industrial product” should be considered a “consumer product,” we can look to the Federal Hazardous Substance Act (FHSA). This is the act that “requires certain hazardous household products to have warning labels.” At the end of 16 C.F.R. § 1500.3(c)(10)(i), it states:
[T]he test shall be whether under any reasonably foreseeable condition of purchase, storage, or use the article may be found in or around a dwelling.
It doesn’t seem that a manufacturer’s intent on who should use a chemical comes into play, but it is focused more on where the chemical might end up. In the discussions at SCHC, one of the potential solutions discussed was tightly controlling the supply chain if you do not want to sell the item to consumers. This would likely work better if you are selling products not likely to be used by consumers, such as sanitizing medical equipment. For other products where there might be a household application, it will require monitoring whom you are selling to and instituting controls so that the product does not get resold for a consumer application. As with all things regulatory, make sure you are documenting everything and verifying that your controls are working. This could include auditing your supply chain to ensure that your products are only being sold to industrial users and, if you find that they are being sold to consumers, discontinuing relationships with suppliers who aren’t complying with your requirements.
Another idea presented was to label it “for industrial/professional use only.” However, unless you are also diligently controlling your supply chain, this is unlikely to protect you if someone gets hurt using your product. In the New Jersey Superior Court case, Canty v. Ever-Last Supply Co., it was found that this statement is essentially meaningless if the product could be easily purchased by a consumer. The court cited the FHSA definition given above and noted that the real test in whether it is a consumer product is where the product could be purchased.
The easiest route might be to consider anything that might fall into the hands of a consumer as a consumer product and use those labeling requirements. OSHA has defined an exemption for consumer products, and this was emphasized in a letter of interpretation from June 29, 2015. It states that:
OSHA exempts products from HCS labeling when they are subject to a consumer product safety standard or labeling requirements of the Consumer Product Safety Act and the Federal Hazardous Substances Act. See 29 CFR 1910.1200(b)(5)(v). Generally, if a label meets the exemptions described in this paragraph of the HCS, then the employer must follow CPSC’s label requirements.
However, there seems to be some discomfort in this approach as there are companies that would also like to have both consumer and workplace labels placed on their products. It is important to remember that these two labeling methods may not be consistent with one another and could cause confusion. This is something that OSHA addresses in HCS 2012:
C.3.1 To ensure that non-standardized information does not lead to unnecessarily wide variation or undermine the required information, supplementary information on the label is limited to when it provides further detail and does not contradict or cast doubt on the validity of the standardized hazard information.
OSHA issued a letter of interpretation on this on May 12, 2014:
Response: Manufacturers are permitted to include supplemental information on HCS labels under Appendix C.3, Supplementary Hazard Information. Chapter C.3.1 requires that supplementary information be limited to situations where it would not contradict or cast doubt on the validity of the standardized hazard information. Chapter C.3.2 requires that the placement of the supplemental information must not impede indication of the information required to be on the label under HCS 2012 . OSHA may consider the CPSC or any other agency-required information as supplemental information. This letter provides clarification on how manufacturers, importers or distributors can incorporate supplemental information into their labels that provides further detail, does not contradict or cast doubt on the validity of the standardized hazard information, and does not impede the identification of the required HCS information.
Response: No. The information in your example would cast doubt on the validity of OSHA‘s required information in violation of § 1910.1200(f)(2) and Appendix C.3.1. HCS 2012 classifies a chemical as flammable based on its flash point, and in some situations, its initial boiling point. See chapter B.6.2 of Appendix B, Physical Hazard Criteria. The HCS 2012 requirements for Category 3 and Category 4 flammable liquids have different flashpoints than the CPSC‘s flammable/combustible cut-off limits. Under HCS 2012 , a Category 3 flammable liquid has a required signal word “Warning” and hazard statement “flammable liquid and vapor,” and a Category 4 flammable liquid has the required signal word of “Warning” and hazard statement of “combustible liquid.” Thus, the use of the CPSC “Warning: combustible liquid” casts doubt on the Category 3 flammable liquid classification and may cause an employer or employee to think that the chemical is less hazardous than it is.
OSHA does not say that you can’t label for both per se, and to avoid confusion others have recommended placing the information in separate locations on the container (front label for CPSC, back label HCS 2012) and clearly marking which regulation it is in accordance with. I have not yet heard of a case where this has been tested from an enforcement perspective, but it would be interesting to see how it might be viewed.
It’s important to remember that you are the best source to say who might end up using your products. Take a good look at your products and how you sell them through your supply chain. That should give you the best idea of who might end up using them. In looking at these options, I think that if you have materials that could end up in the hands of a consumer, your best bet is labeling it that way.