January 2014

Dual Marking & Labeling: How much is too much?

The deadline for marking and labeling of products according to the U.S. Occupational Safety & Health Administration’s (OSHA) Globally Harmonized System for Classification & Labeling of Chemicals (GHS) Hazard Communication Standard (HazCom 2012) is not far off, but a number of companies have already begun the transition to the new standard. Unfortunately, there is some confusion as to whether GHS marking and labeling is required on transportation packaging or not.
OSHA initially prohibited the use of both the U.S. Dept. of Transportation (DOT) Hazard Warning Labels and the GHS pictograms for the same hazard, but letters of interpretation issued by both agencies now permit the use of dual marking and labeling, but this leads to the inevitable question, “How Much is Too Much?”
 
Shipped Containers
OSHA defines, under the new Hazard Communication Standard (HCS), a “shipped container” as “…any container leaving the workplace.” Under the HCS, an employer is required to label a hazardous materials “immediate container,” but the standard does not require labels on the outside shipping containers.
However, single packaging such as pails, drums, totes and cargo tanks would meet OSHAs definition of an “immediate container,” and should therefore be labeled in accordance with 29 CFR 1910.1200(f)(1), which requires the following:
 
  • Product Identifier
  • Signal Word
  • Pictogram
  • Hazard Statements
  • Precautionary Statements
  • Name, address, and telephone number of the chemical manufacturer, importer or other responsible party
 
Indeed, OSHA stated in an interpretation letter (Intercontinental Chemical Corp., 12/20/12), that “…DOT requires diamond-shaped labels for the transport of chemicals, including chemical drums, chemical totes, tanks or other containers [and] … these containers will also be the hazardous chemical’s immediate container, and therefore, both a DOT and an HCS label are required [and that] …. each container of hazardous chemicals leaving the workplace must be labeled in a way that does not conflict with the requirements of the Hazardous Materials Transportation Act, 49 U.S.C. 1801 et seq.”
So far, so good! Now, here comes the confusing part: Appendix C.2.3.3 of the Hazard Communication Standard 2012 (HCS 2012) states that “…[w]here a pictogram required by the Dept. of Transportation under Title 49 of the Code of Federal Regulations appears on a shipped container, the pictogram specified in C.4 for the same hazard shall not appear.”
This implies that the pictogram which is similar in design to the required hazard warning label (e.g., GHS02 and Flammable Liquid 3 label) should not be used. However, in the case of pictograms that have no corresponding DOT hazard warning label, such as the exclamation (GHS 07) and health hazard (GHS 08), these pictograms should appear, when appropriate.
 
Interpretations Issued
Since the HCS 2012 final rule was published, both OSHA and DOT have issued letters of interpretation that permit the use of both pictograms and DOT hazard warning labels on the package simultaneously.
OSHA stated in its Dec. 20, 2012 Interpretation Letter to Intercontinental Chemical Corp., that “…DOT does not view the HCS 2012 pictogram as a conflict with the requirements of the Hazardous Materials Transportation Act, and for some international trade, both the DOT and the HCS 2012 pictograms may need to be present on the label. Therefore, OSHA intends to revise C.2.3.3. In the meantime, OSHA will allow both DOT and HCS 2012 pictograms for the same hazard to appear on the label.” This interpretation vacates the prohibition against dual marking for the same hazard.
DOT’s Letter of Interpretation of April 5, 2013 to Monsanto Co. states that the “…prohibition provided in [49 CFR] § 172.502(a)(2) is intended to limit the potential for dilution of the hazard warning communication provided by the appropriate hazardous materials placards [and]…the GHS marks and labels provide additional hazard communication and are not extraneous markings; and the difference between the hazardous materials placards and GHS marks and labels is such that there is a low likelihood of confusion. Therefore, it is the position of this office [PHMSA] that the described display of the GHS marks and labels … would not constitute a violation of [49 CFR] § 172.502(a)(2).” 
A copy of these interpretations may be obtained by contacting the author or from the following URL’s: 
 
 
 
Package Type Not Addressed
It is important to note, however, that DOT does specifically address the type of packaging in its response, leaving the issue of dual marking still open to interpretation on combination packaging, comprised of an inner packaging (“immediate container”) and an outer packaging.
Although the type of packaging addressed in Monsanto’s petition for clarification is an International Maritime Organization (IMO) cargo tank, a single bulk packaging for DOT’s purposes, or an “immediate container” for the purposes of OSHA, the response makes no reference to the packaging type, thereby implying that dual marking provides additional hazard communication and would, therefore, not be “extraneous markings” on combination packaging.
OSHA’s interpretation does refer to the marking on the hazardous chemical’s “immediate container,” thereby implying that dual marking would apply only on DOT single packaging such as pails, drums, totes and tanks. 
Although the DOT and OSHA now allow the GHS and DOT labels for the same hazard, these agencies are limited in jurisdiction to that of the U.S. only. It is possible for other regions, such as the European Union, to interpret the GHS standard differently and prohibit the redundant marking. In these cases, the use of dual or redundant marking may be too much, causing the shipment to be frustrated and unnecessarily delayed.
 
Recommendations
Until the subject of dual marking is sufficiently addressed in a subsequent rulemaking by OSHA and/or the GHS’ developers, I would recommend the following:
 
Single Packaging
1. Apply the required GHS marks and pictograms on single packaging (e.g., pails, drums, totes, tanks), for different hazards, in addition to the marks, labels, placards, panels and other markings required by DOT.
 
2. Where the GHS hazard pictogram is the same as the DOT hazard warning label (e.g., GHS02,
Flammable Liquid) there is no need to duplicate the marking. This recommendation is consistent with Annex 7 of the GHS standard. Even though OSHA and DOT allow both to be used, OSHA  and DOT jurisdiction do not extend to other countries or regions (e.g., the European Union) where there may be a difference in interpretation.
 
3. Adjust the pictograms’ size to distinguish them from the required transport labels. The size of the non-transport pictograms should be proportional to the size of the text of the other label elements. This would generally be smaller than the transport-related pictograms, but such size adjustments should not affect the clarity or comprehensibility of the non-transport pictograms.
 
Combination Packaging
1. Apply all of the required GHS marks and pictograms on the inner receptacles (e.g., aerosol cans, glass bottles, metal cans) in combination packaging, even though the outer packaging may have a transport label which is the same as the inner packaging.
 
2. The size of the GHS marks and pictograms should be proportional to the size of the other label elements and the size of the receptacle. It is important to note that other agencies (e.g.,
Consumer Product Safety Commission) have minimum font and warning label sizes that are proportional to the size of the inner packaging.
 
3. Apply only the required DOT marks and labels on the outer packaging, as described in Annex 7 of the GHS standard.
 
Overpacks Containing Damaged Packages
1. Overpacks which contain damaged packaging (single or combination) should be marked as for single packaging (see Single Packaging above).  SPRAY