Hiding exact chemical percentages as trade secrets

August 3, 2017

Mr. Robert Colau

North American Regulatory Manager, SAP

[Recipient address omitted]

Dear Mr. Colau:

Thank you for your letter to the Occupational Safety and Health Administration’s (OSHA) Directorate of Enforcement Programs. You requested clarification on the use of ingredient percentage and “trade secret” on safety data sheets (SDS) under OSHA’s Hazard Communication Standard (HCS), 29 CFR 1910.1200. This letter constitutes OSHA’s interpretation only of the requirements herein, and may not be applicable to any questions not delineated within your original correspondence.

Background: In earlier communications through OSHA’s e-correspondence system you had questions related to the use of concentration ranges for ingredients in a mixture and the claim for “trade secret.” You now request further clarifications on the use of the trade secret claim when a mixture contains an exact percentage, a range of concentrations (i.e., batch-to-batch variability), or a set formula.

Because your questions are similar, we have combined and paraphrased them into a single question below, followed by our response.

Question: If a mixture contains an exact percentage of a substance, or is a defined (true) range of concentrations (i.e., batch to batch variability), or has a set formula for an ingredient (but the final product allows for a deviation in weight of the ingredient (e.g., 1%)), are any of these examples allowed to be claimed a trade secret by: 1) suppressing the output of the exact concentration on the SDS; or 2) disclosure of a wider range that masks the exact (true) concentration, so long as this range is narrow enough to correspond accurately to the product classification based on the exact value? For any of these examples, is a statement needed on the SDS indicating that the missing value or the range represents a trade secret?

Response: It is not appropriate to leave the concentration percentage (or the identity of the ingredient(s)) blank on the SDS. The HCS allows a manufacturer or importer to indicate on the SDS that the specific chemical identity and/or the percentage of composition of a hazardous ingredient is being withheld as a trade secret. A manufacturer or importer may not claim trade secret status for a concentration range and is prohibited from masking the true range by use of a wider range. If a concentration range is used on the SDS, it must be limited in terms of the percentage concentration variation (i.e., the narrowest range possible), and the variation in concentration must have no effect on the hazard of the mixture.

For a mixture with a set formula or “exact percentage” (i.e., the amount of a substance in the mixture is relatively consistent from batch-to-batch), where there are some very small variances that have no impact on the hazard of the overall mixture, and assuming the high end of the variation does not change the hazard classification, the manufacturer or importer may choose to use either the exact concentration set in the formula or the concentration range anticipated between the batches.

To help illustrate when trade secret must be indicated in Section 3 of the SDS, below are examples when “trade secret” is required to be used and when it is not allowed.

Example Trade Secret Indications in Section 3 of the SDS for mixtures

Does the Mfg/Imp consider the specific chemical identity

a trade secret?

Is the Mfg/Imp using an exact percentage or percentage range to identify the ingredient?

Can the percentage be claimed as a

trade secret?

Trade secret indication

Yes

Exact percentage

Yes

SDS indicates the ingredient name and/or exact percentage is being withheld as a trade secret.

No

Exact percentage

Yes

SDS indicates the exact percentage is being withheld as a trade secret but not the ingredient name.

Yes

Percentage range

No

SDS indicates the ingredient name is being withheld as a trade secret but not the percentage range.

No

Percentage range

No

SDS may not indicate either the ingredient name or percentage range as a trade secret.

For additional information, you may find useful a Frequently Asked Question developed by OSHA regarding the use of concentration ranges, and the applicability to trade secrets. The FAQ can be found on OSHA’s web site at https://www.osha.gov/dsg/hazcom/hazcom-faq.html#collapse33.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA’s requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA’s interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To ensure that you are using the correct information and guidance, please consult OSHA’s website at https://www.osha.gov; If you have further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

Amanda Edens, Acting Director

Directorate of Enforcement Programs