We’re often asked if there are products that are exempt from OSHA’s Hazard Communication Standard – most recently electronic cigarettes and vaping device companies as new, burgeoning industries – and the answer is ‘maybe.’ It is also important to note that even if a product is exempt under the HazCom Standard, other OSHA regulations and/or those of other agencies like the DOT, EPA or FDA may still apply.
According to OSHA, SDSs are only required for materials that meet OSHA’s definition of hazardous and are ‘known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency.’
So, for example, what does that mean for electronic cigarette and vaping device companies and their products?
New Industries, Same Safety Regulations
Workplace safety standards have been law since 1970, and while cannabis is still illegal at the federal level, cannabis businesses are subject to workplace safety regulations just like any other industry in the U.S. In fact, in reviewing 10 OSHA citations of cannabis dispensaries from 2016 and 2017, all citations were violations of hazard communication and employee exposure to hazardous materials.
So as a quick guide, we’ve created a ‘cheat sheet’ of those items which are exempt according to the Hazard Communication Standard. It’s important to note, however, that if a material is not explicitly listed below, then it should be assumed that it requires an SDS. It is also critical to pay attention to the specific circumstances below under which the listed items are exempt. Exemptions do not apply in all situations and all use cases.
HazCom Standard Exempt Items
Articles
An exempt article is a manufactured item other than a fluid or particle which:
- Is formed to a specific shape or design during manufacture;
- Has end-use function(s) dependent in whole or in part upon its shape or design during end use;
- Does not release more than very small quantities – minute or trace amounts of a hazardous chemical – under normal conditions of use; and
- Does not pose a physical hazard or health risk to employees.
Additives & Alcoholic Beverages
Food or alcoholic beverages which are sold, used, or prepared in a retail establishment, such as a grocery store, restaurant, or drinking place, and foods intended for personal consumption by employees while in the workplace are exempt.
Cosmetics
Cosmetics which are packaged for sale to consumers in a retail establishment, and cosmetics intended for personal consumption by employees while in the workplace are exempt.
Drugs & Pharmaceuticals
Any drug, as defined in the Federal Food, Drug, and Cosmetic Act, when it is in solid, final form for direct administration to the patient, such as tablets or pills, drugs which are packaged by the chemical manufacturer for sale to consumers in a retail establishment, such as over-the-counter drugs, and drugs intended for personal consumption by employees while in the workplace, such as first aid supplies, are exempt.
Hazardous Wastes & Remediation
Any hazardous substance as defined by the Comprehensive Environmental Response, Compensation, and Liability Act when the hazardous substance is the focus of remedial or removal action being conducted under CERCLA in accordance with Environmental Protection Agency regulations is exempt.
Tobacco & Tobacco Product
HazCom does not apply to tobacco and tobacco products.
Wood & Lumber
Wood or wood products, including lumber which will not be processed, where the chemical manufacturer or importer can establish that the only hazard they pose to employees is the potential for flammability or combustibility are exempt.
Consumer Products
Any consumer product or hazardous substance, as those terms are defined in the Consumer Product Safety Act and Federal Hazardous Substances Act, where the employer can show that it is used in the workplace for the purpose intended by the chemical manufacturer or importer of the product, and the use results in a duration and frequency of exposure which is not greater than the range of exposures that could reasonably be experienced by consumers when used for the purpose intended are exempt. See also the article SDS Obligations for Household Consumer Products.
Nuisance Particulates & Dusts
Nuisance particulates where the chemical manufacturer or importer can establish that they do not pose any physical or health hazard are exempt.
Ionizing & Non-ionizing Radiation
Ionizing and nonionizing radiation materials are exempt if the only hazard they pose is radiological but if the material also possesses a physical or health hazard, then an SDS is required.
Biological Hazards
Biological hazards are exempt but if the material also possesses a physical or health hazard, then an SDS is required. Examples of biohazards include microbes, anthrax, vaccines, and cell cultures.
Office & School Supplies
OSHA does not require that SDSs be provided to purchasers of household consumer products when the products are used in the workplace in the same manner that a consumer would use them, such as where the duration, frequency of use and exposure is not greater than what the typical consumer would experience.
How To Prove Exemption
As could be expected, it is possible someone will ask for an SDS when one is not required. In such instances, OSHA recommends providing a written statement such as, ‘This product is not considered to be or to contain hazardous chemicals based on evaluations made by our company under the OSHA Hazard Communication Standard.’
And should that item be specifically exempted, be sure to include that verbiage in your statement, as well as the specific paragraph(s) of the standard which applies.
While your goal as a business owner is to keep employees healthy, your products safe and comply with regulations, it’s not your core business – it’s ours. At GSM, we’re leading the compliance industry with peerless expertise and mission-critical technologies that make your life easier and your business more effective. Contact us today to learn how!
