June 12, 2018

Mr. Joe Trauger 
Senior Vice President of Policy and Government Relations
Air-Conditioning, Heating, and Refrigeration Institute
2111 Wilson Blvd., Suite 500
Arlington, Virginia 22201

Dear Mr. Trauger:

Thank you for your letter clarifying the Air-Conditioning, Heating, and Refrigeration Institute’s (AHRI) concerns regarding the Occupational Safety and Health Administration’s (OSHA) Hazard Communication Standard (HCS) (29 CFR 1910.1200) and the labeling requirements, as it applies to the heating, ventilation, air-conditioning, and refrigeration (HVACR) industry. Your letter was forwarded to OSHA for response.

Background: The refrigerants manufactured and distributed by AHRI’s members are contained within specially designed single-use cylinders, referred to as “Department of Transportation (DOT)-39 Non-Refillable Cylinders.” The cylinders are manufactured to meet DOT’s specification requirements and must be contained in a strong, non-bulk outer package (i.e., in the instance presented, a cardboard box) when transported. See 49 CFR 173; 178. 

In the follow-up meeting on February 8, 2018, you further described the complexity involved in printing HCS-compliant pictograms (i.e., a red square frame set at a point with a black hazard symbol on a white background) directly on the cylinders. In addition, you indicated that the cylinder is intended to remain in the cardboard box throughout its life cycle, from the time prior to filling the cylinder until it is emptied and recycled. The cardboard box includes a statement not to remove the cylinder from the box. 

Question 1: May refrigerant manufacturers label the cylinder with a single-color pictogram?

Response: No. In a previous OSHA letter of interpretation to AHRI (Ms. Caroline Davidson-Hood, August 3, 2016), OSHA responded to similar questions regarding labels on “DOT-39 Non-Refillable Cylinders.” OSHA’s HCS requires that chemical manufacturers and importers label, tag, or mark each immediate container in accordance with 29 CFR 1910.1200(f)(1) for any hazardous chemical shipped, with the following: Product identifier; Signal word; Hazard statement(s); Pictogram(s); and Precautionary statement(s). The use of a single color (i.e., black) pictogram does not meet the requirements as outlined in Appendix C.2.3.1 to 29 CFR 1910.1200, Allocation of Label Elements (Mandatory). 

In the promulgation of the HCS 2012, OSHA reviewed numerous studies discussing the use of color on labels. The studies showed that there is substantial benefit in the use of color on labels that consistently show red is commonly associated with a high level of hazard—the highest of any color. (77 FR 17574, 17581 (March 26, 2012)). Therefore, OSHA decided to require all pictograms on labels to have red borders for the following reasons:

• These labels will be more effective in communicating hazards to employees—both by drawing the attention of employees to the label and by indicating the presence of a hazard through non-verbal means.
• Consistently applying red borders to all labels, regardless of the final destination, will ensure that workers are protected.
• Red borders will maximize recognition of the warning label and ensure consistency; therefore the final rule requires red borders for both domestic and international labeling. (77 FR at 17591)

The HCS does not require the pictogram to be printed directly onto the cylinder; refrigerant manufacturers may comply with the HCS labeling requirements by adding adhesive stickers of the HCS-compliant pictogram to the cylinder.[1] Alternatively, refrigerant manufacturers may affix a tag directly to the cylinder with all of the information required by 29 CFR 1910.1200(f)(1). 

We note that in the February 8, 2018, meeting, AHRI asked whether refrigerant manufacturers may label the cardboard box instead of the cylinder. If the cylinder is affixed to the cardboard box such that it cannot be removed, then OSHA would consider the cardboard box to be a “tag,” and would not require HCS labeling on the cylinder itself. Therefore, the refrigerant manufacturer must assure that all required HCS labeling information is contained on the cardboard box. Likewise, OSHA expects all instructions for use to be included on the cardboard box.

AHRI also indicated that there are circumstances where the cylinder can be separated from the cardboard box during use. For example, where the cylinder contains instructions for use that are not on the outer package, it is foreseeable that a user would remove the cylinder from the box. When this is the case, the refrigerant manufacturer must ensure that the cylinder itself, as the immediate container, includes all required HCS labeling information, which can be made by printing on the cylinder, applying an adhesive sticker, or attaching a tag.

Question 2:  May suppliers print a single-color pictogram on products not being exported, as permitted by the Globally Harmonized System of Classification and Labelling of Chemicals (GHS)?

Response: No. While the GHS permits an adopting country to allow black border pictograms on packages not being exported (i.e., shipped only within the U.S.), OSHA chose not to adopt this particular provision of GHS for the reasons explained in the response to question 1. In addition, both the European Chemicals Agency’s (ECHA’s) Classification Labeling and Packaging (CLP) and Canada’s Workplace Hazardous Materials Information System (WHMIS), both aligned with the GHS, require the use of red border pictograms on all products.

Question 3: Will OSHA reopen the HCS rulemaking to permit suppliers to use their discretion in determining whether to use single-color or multi-color pictograms?

Response: OSHA does not currently have any plans to reopen the HCS rulemaking to permit suppliers to use their discretion whether to use single-color or multi-color pictograms. Please note, however, that OSHA has identified an update to the Hazard Communication Standard in the Spring 2018 Regulatory Agenda, and AHRI is encouraged to participate in that rulemaking process.

Please note, OSHA’s requirements are set by statute, standards, and regulations. OSHA’s letters of interpretation do not create new or additional requirements, but rather, they 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 http://www.osha.gov. If you have further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Thank you for your interest in occupational safety and health. We hope you find this information helpful.

Sincerely,
 

Thomas Galassi, Director

Directorate of Enforcement Programs

[1] 29 CFR 1910.1200 (f)(3) requires that the product identifier, signal word, hazard statements, pictograms, and precautionary statements appear together on the label in the same field of view.