OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

November 21, 2023

Ms. Melissa Delaney
Regulatory Affairs Manager
UL Verification Services, Inc.
333 Pfingsten Road
Northbrook, IL 60062

Dear Ms. Delaney:

Thank you for your letter to the Occupational Safety and Health Administration's (OSHA) Directorate of Enforcement Programs. Your questions are regarding articles under the Hazard Communication standard, 29 CFR § 1910.1200. 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. Your paraphrased questions and our responses are below.

Question 1: Can an industrial isopropyl alcohol (IPA) or ethyl acetate (EA) based marker containing 10 milliliters (ml) of liquid paint or ink be considered an article per paragraph 1910.1200(c) of HCS 2012? Given the [minute] quantities of ink or paint which may be released under normal conditions of use, the end use shape and design of the marker, and because the marker is certified as "nontoxic" by a board-certified toxicologist against the ASTM D-4236 standard, would the marker meet the definition of an article?

Response: OSHA's HCS definition of "article" means "a manufactured item other than a fluid or particle: (i) which is formed to a specific shape or design during manufacture; (ii) which has end use function(s) dependent in whole or in part upon its shape or design during end use; and (iii) which under normal conditions of use does not release more than very small quantities, e.g., minute or trace amounts of a hazardous chemical (as determined under paragraph (d) of this section), and does not pose a physical hazard or health risk to employees." 29 CFR § 1910.1200(c). Many items appear to meet the definition of "article" in their manufactured form, but the manufacturer must consider the product's end use as well as whether employees and downstream users will be exposed to any physical hazard or health risk from exposures to the hazardous chemical(s) before the "article" exemption may apply. If, for instance, at any time during employee handling of your product (for example, shipping, packaging, installation, or final use), employees could be exposed to the IPA or EA in your product (in quantities other than minute or trace amounts), then your product would not meet the HCS definition of an article. However, if a manufacturer or importer makes a reasonable determination that its product satisfies the requirements specified in the definition of article in paragraph 1910.1200(c), then it may be considered an article and exempt from the HCS's requirements, per paragraph 1910.1200(b)(6)(v).

Furthermore, a board-certified toxicologist "certifying" that the markers are "nontoxic" based on the ASTM D-4236 standard should not be the sole basis for determining whether the markers are articles1. Manufacturers and importers of hazardous chemicals are responsible for ensuring that hazard information provided to their workers and downstream users is complete and accurate. To achieve this, the person(s) (e.g., toxicologist) assigned to conduct the hazard classifications must conduct complete and effective literature research and data retrieval. They should also effectively interpret the literature and data to determine the nature and extent of physical and health hazards. In determining the health and physical hazard class and category, manufacturers and importers must follow the HCS criteria for health hazards and physical hazards (Appendices A and B of 29 CFR §1910.1200).

Question 2: Is the fact that the formula used in the marker has been reviewed in detail by a board-certified toxicologist under ASTM D4236 and "certified nontoxic" sufficient to avoid classification and labeling under the Hazard Communication standard due to the minute amount of solvent contained in each marker and released during use?

Response: See response to Question 1.

Question 3: Must the industrial solvent-based paint marker safety data sheets (SDSs) and label contain information related to classification as Category 3 or Category 4 Flammable Liquids if the flash point of the liquid meets the requirements of the classification? The industrial solvent-based paint markers are DOT shipped as UN1210, Printing Inks, Packing Group III.

Response: If, based on the process described above, the markers are not deemed articles and the liquid meets the HCS definition of a flammable liquid (i.e., it has a flash point of not more than 93 °C (199.4 °F)) and meets the classification criteria in chapter B.6.2, Classification Criteria, then the information must be appropriately included on labels and SDSs in accordance with 29 CFR 1910.1200(f) and (g).

Question 4: Must the IPA or EA-based marker SDS and label contain additional GHS classifications that may apply based on the composition of the liquid when the marker is considered "nontoxic" per ASTM D-4236 by a board-certified toxicologist? Could a caption on the label, such as "read SDS before using," be sufficient? Is it required that the SDS and label contain equivalent classification and hazard information?

Response: If the marker is a hazardous chemical, the chemical container must be labeled in accordance with paragraph (f) of the HCS and the information provided on the label must be in accordance with Appendix C. Hazards not otherwise classified do not have to be addressed on the label. See 1910.1200(f)(1). The HCS does not require additional GHS information on an HCS label beyond the requirements listed in the standard, but such statements may be included if they do not conflict with or contradict the required HCS label elements. For example, adding the statement, "read SDS before using," would be acceptable on an HCS label as long as all of the HCS label requirements are met. See Appendix C.3 of 29 CFR § 1910.1200. However, such statement could not replace the hazard information required under the HCS. The same would apply for the SDS, in that additional GHS information beyond what is required in the HCS could be included if it does not conflict with or contradict the required SDS information. See 29 CFR § 1910.1200(g)(2).

The SDS and label must contain the same classification and hazard information, except as stated in paragraph (f)(1) of the HCS.

Thank you for your interest in occupational safety and health. I hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. 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 www.osha.gov. If you have further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

Kimberly Stille, Director
Directorate of Enforcement Programs

1ASTM D4236-94R21, Standard Practice for Labeling Art Materials for Chronic Health Hazards