August 31, 1994

Ms. Ellen Bernard Regulatory Affairs DIFCO Laboratories Post Office Box 331058 Detroit, Michigan 48232-7058

Dear Ms. Bernard:

Thank you for your letter of February 2, concerning the Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard (HCS), 29 CFR 1910.1200. Please accept my regret for the long delay in responding to your inquiry.

You request clarification on the acceptability of your "FAX-on-demand" system for providing copies of material safety data sheets (MSDS). As you may be aware, OSHA amended the hazard communication standard on February 9. The changes to the standard, published in the Federal Register, generally do not affect the substantive requirements of the standard, but they do provide additional clarification. A copy is enclosed for your information.

The "FAX on Demand" system described in your letter would not meet the requirements of the regulation as stated in 1910.1200(g)(6)(i). That paragraph states that:

"Chemical manufactures or importers shall ensure that distributors and employers are provided an appropriate material safety data sheet with their initial shipment, and with the first shipment after a material safety data sheet is updated."

The standard requires the MSDS to be provided to the downstream user(s) by the chemical manufacturer or importer. Your system requires the MSDS to be sought out by the downstream user(s). This responsibility under the standard cannot be transferred to the downstream user(s).

Your system also relies on the downstream user(s) having a fax machine. While faxes have become prevalent, they are not universal.

You state that one problem you have encountered in providing MSDSs is that you "use distributors and we do not know when a first shipment to a customer has occurred." OSHA recognizes this difficulty, and has never required manufacturers to automatically provide copies of MSDSs to the end use customer, as the manufacturer may have no way of knowing who these customers are. The requirements of the standard are based upon a downstream flow of information from chemical manufacturers to distributors and/or employers and ultimately, to affected employees.

Your primary obligation in supplying MSDSs is to your direct customers, that is, your distributors. You must provide a copy of the MSDS with the first shipment to each of your direct customers, and, if the MSDS for one of your products is updated, you must send the updated MSDS with the next shipment of the product to that direct customer. Your distributors are, in turn, responsible for supplying a copy of the MSDS with the first shipment to each of their direct customers, and so on. Therefore, it is not necessary for you to include " a miniature version of the MSDS... inside every package."

However, because this chain of information transmission through the distributor can sometimes be broken, OSHA has added the requirement that manufacturers must provide a copy of the MSDS to other "downstream" employers upon request. Your "FAX-on-demand" system can be used to fulfill this requirement. Please refer to revised language in paragraphs (g)(6) and (g)(7) of the standard for additional clarification on requirements for providing MSDSs.

Further, we wish to respond to your statements regarding your use of the label and MSDS formats in standards put forth by the American National Standards Institute (ANSI). The warning statement in your letter "warning causes irritation" would not meet the requirements of the HCS. OSHA requires labels for containers leaving the workplace to contain appropriate hazard warnings (including target organ effects), and that these hazard warnings be based on the inherent hazards of the product.

We hope this information is helpful. If you have any further questions please contact us at (202) 219-8036.

Sincerely,

Ruth E. McCully, Director Office of Health Compliance Assistance

Enclosures: Copy of new hazcom rulemaking