July 30, 2018

Mr. Steve L. Foss
Program Specialist
State of Washington
Department of Agriculture
P.O. Box 42560
Olympia, Washington 38504-2560

Dear Mr. Foss:

Thank you for your letter to the U.S. Department of Labor, Occupational Safety and Health Administration’s (OSHA), Directorate of Enforcement Programs. Your letter requested clarification of labeling requirements under OSHA’s Hazard Communication Standard (HCS), 29 CFR 1910.1200, for U.S. Environmental Protection Agency (EPA) “minimum risk pesticides,” spray adjuvants, and commercial fertilizer products. This letter constitutes OSHA’s interpretation only of the requirements herein, and may not be applicable to any questions not delineated within your original correspondence.

Background: The EPA’s Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) exempts certain pesticide products from registration because they are classified as Section 25(b) "minimum risk pesticides" (e.g., citric acid, corn gluten, garlic, mint oil) or spray adjuvants (e.g., surfactants, spreader stickers, crop oils, anti-foaming materials). The Washington State Department of Agriculture (WSDA) has developed guidance and label requirements for 25(b) minimum risk pesticides, as well as for spray adjuvants and commercial fertilizer products (e.g., ammonia, nitrates).

Question: Are “minimum risk pesticides,” spray adjuvants, and commercial fertilizer products, which are intended for agricultural or commercial use, subject to the labeling requirements of the HCS?

Response: The HCS exempts pesticides as defined in FIFRA, when they are subject to the labeling requirements of that Act and labeling regulations issued under that Act by the EPA. See 29 CFR 1910.1200(b)(5)(i). Although EPA does not require minimum risk pesticides to be registered, minimum risk pesticides meet the definition of pesticide and are subject to EPA’s labeling requirements. See 40 CFR 152.25(f)(3) (requiring a label identifying the name and percentage of each active ingredient and name of each inert ingredient). Because minimum risk pesticides are subject to EPA’s labeling requirements and regulations, they need not be labeled under the HCS. However, a safety data sheet must be provided for these chemicals if they are otherwise covered by the standard. See 1910.1200(g).

Likewise, spray adjuvants and commercial fertilizer products that are pesticides and are subject to FIFRA labeling requirements would be exempt from HCS labeling requirements. Spray adjuvants and fertilizers that are not pesticides or are not subject to FIFRA labeling requirements would be subject to HCS labeling requirements unless another labeling exemption applies. For example, OSHA also exempts from HCS labeling a consumer product or hazardous substance as those terms are defined in the Consumer Product Safety Act and the Federal Hazardous Substances Act, respectively, when subject to a consumer product safety standard or labeling requirement of those Acts, or regulations issued under those Acts by the Consumer Product Safety Commission. See 29 CFR 1910.1200(b)(5)(v).

As you may be aware, the State of Washington is one of 26 states plus Puerto Rico and the Virgin Islands that operates its own occupational safety and health program under a plan approved and monitored by federal OSHA. Employers in Washington State must comply with state occupational safety and health requirements. As a condition of plan approval, State Plans are required to adopt and enforce occupational safety and health standards that are at least as effective as those promulgated by federal OSHA. A state’s interpretation of their standards must also be as least as effective as federal OSHA interpretations. If you would like further information regarding the State of Washington’s occupational safety and health requirements, you may contact them at:

Washington Department of Labor and Industries
Division of Occupational Safety
P.O. Box 44600
Olympia, WA 98504-4600
Telephone: 1-800-4BE-SAFE or
1-800-423-7233

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA’s requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather 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.

Sincerely,

Thomas Galassi, Director
Directorate of Enforcement Programs