On April 21, 2017 CPDA President, Sue Ferenc wrote a letter to Maureen Ruskin, Deputy Director of OSHA’s Directorate of Standards and Guidance, that details the significant financial costs that would be imposed upon distributors of non-pesticide agricultural products under the relabeling requirements of paragraph (f)(11) of the Hazard Communication Standard (HCS 2012). CPDA’s letter was submitted in response to a request made by OSHA, during a November 16, 2016 stakeholder meeting, that the Council evaluate the regulatory ramifications of substituting the word “manufactured” for the word “shipped” in paragraph (f)(11). During the November stakeholder meeting, OSHA also requested that CPDA provide supplemental information on costs associated with relabeling products in warehouses due to the current use of the word “shipped” in the regulation, instead of the word “manufactured” as CPDA has proposed.
OSHA’s request came as the Agency announced that it would be initiating efforts to modify HCS 2012 to better align the rule with the sixth revision of the GHS. Agency officials have signaled that potential revisions to HCS 2012 could encompass a range of implementation issues including those emanating from section (f)(11) of the regulation that requires non-pesticide agricultural product labels to be updated within six months of receiving new hazard information before they can be shipped from the warehouse.
CPDA has engaged extensively with OSHA on this issue voicing concerns that warehouses are not equipped to safely relabel sealed product containers and that this requirement would subject warehouse workers to unnecessary health and safety risks. Moreover, CPDA has argued that OSHA’s switch from “hazard determination” to “hazard reclassification” as the trigger for relabeling product under HCS 2012 is likely to result in a “dynamic” or recurring and costly compliance requirement that will significantly expand the scope of the (f)(11) provision of the regulation. In addition, CPDA has objected that this provision of HCS 2012 conflicts with another requirement in the rule that prohibits defacing or removing labels from hazardous chemicals in sealed containers in warehouses.
In its April 21st letter, CPDA reiterated its recommendation that OSHA follow the “Released for Shipment” precedent that was developed when EPA amended its pesticide container and containment final rule to identify the point in time that a product first enters commerce and becomes subject to label compliance enforcement. This is when the product leaves the production line for storage, sale or distribution, and is packaged and labeled in a manner in which it will be distributed, sold or stored. Thus, CPDA explained, a production unit is “Released for Shipment” only once and retains that status, including its label compliance status, until it dissipates in commerce.
In its letter, CPDA summarized the results of an informal survey of its member companies regarding the costs and options associated with the potential need to relabel product that was compliantly labeled when manufactured. CPDA pointed out that for the agrotechnology product industry alone, if revision of HCS 2012 does not exempt HCS 2012-compliantly labeled warehoused products from the requirement to be relabeled given reclassification or rulemaking, all individual “end-use” product containers could need to be relabeled. “A very conservative estimate of the number of agrotechnology product containers that would have to be relabeled by distributors,” CPDA stated, “would be approximately 1,250,000 containers on 13,500 pallets.” CPDA noted that the costs of relabeling or reworking product in the warehouse or reworking the product by shipping and repackaging elsewhere, will vary greatly depending on such factors as product type (liquid versus dry), container type (small jugs, large bulk tanks/totes, plastic bags), and the volume as well as value of the product. CPDA emphasized, “There are no economies of scale in relabeling product so the cost to relabel high volumes of product containers can be crippling.”
As OSHA proceeds with its consideration of possible revisions to HCS 2012, CPDA will continue to advocate for the requested change from “shipped” to “manufactured” in any modification of the regulation. A copy of CPDA’s April 21st letter may be accessed by clicking here.