June 16, 2015

TO: JPA Members

FROM: Patricia Faison

RE: How Does This Apply to Food? OSHA Hazard Communication Standard (HCS)/Globally Harmonized Systems of Classification and Labeling of Chemicals (GHS)

JPA staff recently received an inquiry regarding the application of the Globally Harmonized System of Classification and Labeling of Chemicals (GHS) to edible foods. Below is JPA's staff interpretation based on information published by the Occupational Safety and Health Administration (OSHA).

OSHA issued a final rule in 2012 to revise the Agency's Hazard Communication Standard (HCS), codified in 29 Code of Federal Regulations Part 1900.1200 and available here, to align with the GHS. OSHA's Fact Sheet, "Hazard Communication Final Rule," providing an overview of the revisions to the HCS as a result of the alignment with the GHS is available here. The Fact Sheet also shows the dates for implementation of the new OSHA requirements.

The HCS regulation (§ 1910.1200(b)(1) "...requires chemical manufacturers or importers to classify the hazards of chemicals which they produce or import, and all employers to provide information to their employees about the harzardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, safety data sheets, and information and training. In addition, this section requires distributors to transmit the required information to employers. (Employers who do not produce or import chemicals need only focus on those parts of this rule that deal with establishing a workplace program and communication information to their workers.)"

One of the changes made to the HCS to align with the GHS is the Material Safety Data Sheets (MSDS) are now called Safety Data Sheets (SDS).

Provisions of the HCS related to food include the following:

In part, § 1910.1200(b)(5) excludes certain chemicals from the labeling requirements including, "Any food, food additive, color additive, drug, cosmetic, or medical or veterinary device or product, including materials intended for use as ingredients in such products (e.g. flavors and fragrances), as such terms are defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) or the Virus-Serum-Toxin Act of 1913 (21 U.S.C. 151 et seq.), and regulations issued under those Acts, when they are subject to the labeling requirements under those Acts by either the Food and Drug Administration or the Department of Agriculture." (§ 1910.1200(b)(5)(iii))

In addition, § 1910.1200(b)(6) exempts certain chemicals from the HCS requirements, including, "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." (§ 1910.1200(b)(6)(vi)

It is important to note that the exemptions listed above for food (§ 1910.1200(b)(5)(iii) and § 1910.1200(b)(6)(vi)) are existing provisions in the HCS that did not change when OSHA updated the HCS to align with the GHS.

In 1998, OSHA issued a letter, available here, in which the Agency stated, "Food and alcoholic beverages which are sold, used or prepared in a retail establishment (e.g., grocery store, restaurant or drinking places) are exempt from the provisions of the HCS. Furthermore, MSDSs are not required by the HCS if the 'chemical' is not hazardous as defined by the standard. It is the manufacturer's responsibility to make this determination..."

In another letter issued in 1990, available here, OSHA stated that food and food products are not totally exempt from coverage under the provisions of the HCS, and food products, like any other chemical product, must be evaluated for their downstream hazardous exposure potential. However, the Agency noted if there is no potential for worker exposure to any health or physical hazard, the product is not subject to the provisions of the HCS and no MSDS is needed. The Agency provides an example of flour being a possible hazard in the workplace.

While the two letters were drafted in the 1990's and some of the terms, definitions, and requirements in the 2012 version of the HCS have been updated, it appears that the overall thinking is that in general, foods are exempt from the HCS requirements if they do not pose a physical or health hazard to employees in the workplace. If you are uncertain of how the requirements apply to your products, we recommend that you contact a consultant or food and drug attorney for assistance.

As always, please contact me with questions or comments.

Patricia Faison

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