Trade secrets in material safety data sheets

December 10, 1985

Mr. Ron Roberson
Corporate Industrial Hygienist
Sensidyne Inc.
Gas and Particulate Detection Systems
[Recipient address omitted]
Dear Mr. Roberson:

This is in response to your letter of August 27, requesting an interpretation of the Hazard Communication Standard 29 CFR 1910.1200. Please accept our apology for the delay in responding.

You requested guidance on how to prepare a Material Safety Data Sheet (MSDS) under the trade secret provisions of the standard. Paragraph 29 CFR 1910.1200(c)(2) identifies the specific items which must be included on the material safety data sheet under the trade secrets provision of the standard. Only the specific chemical identity, including the specific chemical name and other specific identification of a hazardous chemical may be withheld from the MSDS, provided that the trade secret can be supported and that the MSDS indicates that the specific chemical identity is being withheld as a trade secret.

You requested clarification in several areas as noted below:

1. Is it acceptable to state "proprietary component A" or must you state "proprietary sulfur compound"?

It would be acceptable to refer to the trade secret chemical either as "Component A" or as "proprietary sulfur compound".

2. How does one state a Threshold Limit Value (TLV) for a proprietary compound? Can this be omitted or can several TLV's be stated if all are appropriate?

If there is an OSHA permissible exposure limit and a TLV for the proprietary component A, then that value would need to be reflected on the MSDS. If there is a PEL and TLV for the proprietary component A it cannot be withheld from the MSDS.

3. Can volume percentages be omitted for proprietary components?

The standard does not require the release of any volume percentages of any chemicals on the MSDS.

4. Under Health Hazard is it acceptable to refer to components as "Component A" or as "one component"? Can overexposure symptoms be discussed without divulging chemical families?

It would be acceptable to reference the health hazards associated with one chemical to that particular constituent; Ex. Health Hazards of Component A are....The health hazard information must include the signs and symptoms of exposure.

Finally, it should be noted that in a recent Third Circuit Court of Appeals decision on the Hazard Communication Standard the court found that the definition of a trade secret in the standard was too broad. The court ordered OSHA to redefine a trade secret to include those chemicals that would not be easily identified through reverse engineering.

The Agency in the near future will be going through the rulemaking process to change the definition of a trade secret in the Hazard Communication Standard. Any changes or proposed changes to the standard will be published in the Federal Register. You may wish to periodically review the Federal Register in order to keep apprised of any changes.

If I may be of further assistance on this matter please let me know.

Sincerely,
John B. Miles, Jr., Director
Directorate of Field Operations

[Requester letter reproduced on OSHA page; omitted here.]