Hello rockymountainguy,
First of all, MSDS sheets are regulated by OSHA, the U.S. Occupational
Health and Safety Administration. All information on them and their
various regulations can be found at:
http://www.osha.gov/
Second of all, states may have different regulations, but they are
mostly required to have exact or similar regulations as OSHA.
http://www.ilpi.com/msds/faq/partb.html
"Section 18 of the Occupational Safety and Health Act of 1970 (the
Act) permits States to assume responsibility for their own
occupational safety and health programs under State plans approved and
monitored by Federal OSHA...States with approved plans must adopt
standards identical or comparable to Federal standards [to get federal
safety and health funding]."
You can find the states that have approved OSHA plans on this page:
http://www.osha-slc.gov/fso/osp/
This provides more detail on each state's plans:
http://www.osha-slc.gov/fso/osp/faq.html
With this in mind:
You are only required to give your MSDS sheets out to employees and
emergency responders in the case of a spillage. You are not even
required to give them to all employees, but only to those who are
exposed to the hazard while at work or handle the chemicals for
storage purposes.
http://www.ilpi.com/msds/faq/parta.html
"MSDS's are meant for:
1. Employees who may be occupationally exposed to a hazard at work.
2. Employers who need to know the proper methods for storage etc.
3. Emergency responders such as fire fighters, hazardous material
crews, emergency medical technicians, and emergency room personnel.
MSDS's are not meant for consumers. An MSDS reflects the hazards of
working with the material in an occupational fashion. For example, an
MSDS for paint is not highly pertinent to someone who uses a can of
paint once a year, but is extremely important to someone who does this
in a confined space 40 hours a week."
As far as giving the MSDS sheets out to consumers, you are under no
obligation to do so. Here is a page dealing with this topic:
http://www.ilpi.com/msds/faq/partb.html#myrights
"What Are My Rights To An MSDS?"
"As stated previously, many manufacturers or distributors are happy to
give an MSDS to anyone who asks but they are under no OSHA obligation
to distribute these to consumers."
A letter from OSHA states:
http://www.ilpi.com/msds/osha/I19900516A.html
"Under the current rule, distributors of hazardous chemicals must
provide material safety data sheets (MSDS) and updated information,
per paragraph (g)(7) of the HCS, to other distributors and employers.
OSHA has no authority, under the Occupational Safety and Health Act of
1970 (OSH Act), to prescribe or enforce regulations that affect
situations outside the Agency's jurisdiction, e.g., OSHA cannot
require distributors to provide a MSDS in a non employer-employee
situation."
"Question 2: Aside from the fact that you have no jurisdiction on
consumers, there appears to be a "stronger than normal" emphasis on
eliminating them from the ruling. Why?
The reason, again, that the HCS does not apply to consumers is
that OSHA has no statutory authority to regulate safety and health
situations outside the workplace."
--------------------------
Can you black out certain elements of the MSDS sheet as trade secrets?
I believe that you can provide the MSDS to consumers while blocking
out your "trade secrets." First of all, you are not required to even
give your customers the MSDS in any form, so there are no regulations
on how you can/cannot give it to them. You could either do this or, as
you suggested, provide them with an alternate sheet describing the
chemical without naming it.
http://www.ilpi.com/msds/faq/partc.html#secret
"Can the identity of a chemical be withheld on an MSDS as a trade secret?
Yes, but the criteria are very demanding and there are certain
responsibilities that come with such a claim."
http://www.ilpi.com/msds/ref/tradesecret.html
"A trade secret is any formula, pattern, device or compilation of
information which is used in one's business, and which gives him an
opportunity to obtain an advantage over competitors who do not know or
use it. It may be a formula for a chemical compound, a process of
manufacturing, treating or preserving materials, a pattern for a
machine or other device, or even a list of customers. In other words,
the trade secret is proprietary information, that which the holder of
the secret does not wish to be known to others, particularly his
competitors.
In the context of an MSDS, a trade secret and "secrecy" have a very
rigorous definition as defined by OSHA in Appendix D to the Hazard
Communication Standard, 29 CFR 1910.1200."
http://www.ilpi.com/msds/osha/1910_1200_APP_D.html
Appendix D to the Hazard Communication Standard, 29 CFR 1910.1200
"b. "Definition of trade secret." A trade secret may consist of any
formula, pattern, device or compilation of information which is used
in one's business, and which gives him an opportunity to obtain an
advantage over competitors who do not know or use it. It may be a
formula for a chemical compound, a process of manufacturing, treating
or preserving materials, a pattern for a machine or other device, or a
list of customers. It differs from other secret information in a
business (see s759 of the Restatement of Torts which is not included
in this Appendix) in that it is not simply information as to single or
ephemeral (lasting for a brief time, transitory) events in the conduct
of the business, as, for example, the amount or other terms of a
secret bid for a contract or the salary of certain employees, or the
security investments made or contemplated, or the date fixed for the
announcement of a new policy or for bringing out a new model or the
like. A trade secret is a process or device for continuous use in the
operations of the business. Generally it relates to the production of
goods, as, for example, a machine or formula for the production of an
article. It may, however, relate to the sale of goods or to other
operations in the business, such as a code for determining discounts,
rebates or other concessions in a price list or catalogue, or a list
of specialized customers, or a method of bookkeeping or other office
management."
According to my interpretation, your use of this chemical would, in
fact, count as a trade secret. Your use of the chemical is not
ephemeral, but continuous over time and extremely important to your
business.
Here are the further definitions:
""Secrecy." The subject matter of a trade secret must be secret.
Matters of public knowledge or of general knowledge in an industry
cannot be appropriated by one as his secret. Matters which are
completely disclosed by the goods which one markets cannot be his
secret. Substantially, a trade secret is known only in the particular
business in which it is used. It is not requisite that only the
proprietor of the business know it. He may, without losing his
protection, communicate it to employees involved in its use. He may
likewise communicate it to others pledged to secrecy. Others may also
know of it independently, as, for example, when they have discovered
the process or formula by independent invention and are keeping it
secret. Nevertheless, a substantial element of secrecy must exist, so
that, except by the use of improper means, there would be difficulty
in acquiring the information. An exact definition of a trade secret is
not possible. Some factors to be considered in determining whether
given information is one's trade secret are:
1. The extent to which the information is known outside of his business;
2. the extent to which it is known by employees and others involved
in his business;
3. the extent of measures taken by him to guard the secrecy of the information;
4. the value of the information to him and his competitors;
5. the amount of effort or money expended by him in developing the information;
6. the ease or difficulty with which the information could be
properly acquired or duplicated by others.
"Novelty and prior art." A trade secret may be a device or process
which is patentable; but it need not be that. It may be a device or
process which is clearly anticipated in the prior art or one which is
merely a mechanical improvement that a good mechanic can make. Novelty
and invention are not requisite for a trade secret as they are for
patentability. These requirements are essential to patentability
because a patent protects against unlicensed use of the patented
device or process even by one who discovers it properly through
independent research. The patent monopoly is a reward to the inventor.
But such is not the case with a trade secret. Its protection is not
based on a policy of rewarding or otherwise encouraging the
development of secret processes or devices. The protection is merely
against breach of faith and reprehensible means of learning another's
secret. For this limited protection it is not appropriate to require
also the kind of novelty and invention which is a requisite of
patentability. The nature of the secret is, however, an important
factor in determining the kind of relief that is appropriate against
one who is subject to liability under the rule stated in this Section.
Thus, if the secret consists of a device or process which is a novel
invention, one who acquires the secret wrongfully is ordinarily
enjoined (prohibited) from further use of it and is required to
account for the profits derived from his past use. If, on the other
hand, the secret consists of mechanical improvements that a good
mechanic can make without resort to the secret, the wrongdoer's
liability may be limited to damages, and an injunction against future
use of the improvements made with the aid of the secret may be
inappropriate."
http://www.ilpi.com/msds/ref/tradesecret.html
If you can, therefore, establish your chemical as a trade secret, what
can you do then?
"When 29 CFR 1910.1200, the OSHA Hazard Communication Standard was
being drafted, some manufacturers worried that the requirement to
provide MSDS's would give away their "secret formulas" or proprietary
information about their products. Thus, Paragraph (i) of the Standard
permits a manufacturer, importer or even employer to withhold the
specific chemical identity of a material provided that all of the
following apply:
1. The claim of a "trade secret" can be supported (key point; more below).
2. The MSDS states that the specific chemical identity is being
withheld as a trade secret.
3. The properties and effects of the hazardous chemical, including
the PEL, TLV, or other designated exposure limit, is disclosed in the
MSDS.
4. The specific chemical identity is made immediately available to
a treating physician or nurse in an emergency situation or to the
physician, nurse, employee or designated representative under certain
non-emergency situations; see Paragraph i(3) for detailed
information."
"OSHA has a very specific and rigorous definition/discussion of "trade
secret" which makes up Appendix D of 29 CFR 1910.1200. An important
quote from this section is Matters of public knowledge or of general
knowledge in an industry cannot be appropriated by one as his secret.
Matters which are completely disclosed by the goods which one markets
cannot be his secret. So if you have a product which is easily reverse
engineered or is a generic equivalent of other products, it would be
quite difficult to support such a claim. You can not claim a "trade
secret" merely for your own convenience or to prevent others from
knowing that your magic cleaner is really just isopropyl alcohol."
If you were using your chemical as one would in its normal usage, a
"trade secret" claim could not be supported, but in my estimate, since
you are using the chemical for an out-of-the-ordinary reason that is
not commonly known in the industry, this would count as a trade
secret. You would have to confirm this with OSHA, however. It is rare
that OSHA gives trade secret status, however, so even if your chemical
qualifies, you might not be able to get the actual status for MSDS
purposes.
In addition, even if your use of this chemical is not found to be a
trade secret, remember that you are not required to provide consumers
with an MSDS sheet at all and so you could certainly provide them with
an alternate one that doesn't include the name or blocks it out
somehow. Either way, your secret will be protected from your
customers.
--------------------------
- "What is our obligation when a customer, prospective customer or
anyone calls us and asks for an MSDS sheet?"
--You have no obligation by law. (Federal law; some states may
differ in their interpretations.)
- "Do we have to give it to anyone who asks?"
-- You have to give it to any employee that works around the
chemical who asks, and they have to have easy access to it. They
shouldn't even have to turn a key to get to it, but it should be
freely available to them.
-- In case of a leak or a spill, you have to give it to
emergency responders at the scene and any emergency workers at the
scene or at the hospital.
- "Can we just ignore the request or refuse it?"
-- You certainly can. You may not want to ignore it, but you
should tell them that you don't provide MSDS information to customers.
If they say that you are legally required to do so, you can direct
them to OSHA, by phone or by web, and tell them that OSHA does NOT
require you to give them the information, but only to your employees.
- "Can we black out information on the MSDS identifying the
manufacturer and supplier and then give it to them?"
- "Can we simply put the emergency treatment and hazard information
into a simple ?Chemical Information Sheet? and give that to them
(while explaining that we do give out actual MSDS sheets)?"
-- This might be the best idea. You don't upset the customer who
is curious about the chemicals in their building, but you also keep
your product a secret.
Additional sources:
http://www.ilpi.com/msds/ref/osha.html
Search terms:
msds sheet give out
msds consumer liability
I hope I have fully answered your question for you. If you have any
additional help or clarifications that you need, let me know and I'll
be happy to help.
Cheers,
--keystroke-ga |
