The Devil is in the Definitions

Written on: November 1, 2017 by Dr. Steve Bennett

Wouldn’t it be wonderful if the products we manufactured followed the same regulations throughout the entire world? It’s a nice dream for those working with regulations, certainly. Not only do regulations differ country to country or state to state, but even the definition of what the product is can differ as well.

Take aerosols for example. We in the industry know an aerosol when we see one. We may not know the exact chemical makeup or the where materials used to design the aerosol come from, but we know that it is an aerosol. The problem is, the definition of an aerosol varies depending on if you are in the U.S. or in another country.

According to the U.S. Hazardous Material Regulations (HMR) 49 CFR §171.8, an Aerosol means an article consisting of any non-refillable receptacle containing a gas compressed, liquefied or dissolved under pressure, the sole purpose of which is to expel a nonpoisonous (other than a Division 6.1 Packaging Group III material) liquid, paste or powder and fitted with a self-closing release device allowing the contents to be ejected by the gas.

Notably, the HMR definition differs with the definition of an aerosol found in the UN Model Regulations (UNMR), the International Maritime Dangerous Goods (IMDG) Code, the International Civil Aviation Organization Technical Instructions on the Safe Transport of Dangerous Goods by Air (ICAO TI) and the Regulations governing European Road Transport (ADR).

From the UNMR: “Aerosol or aerosol dispenser means a non-refillable receptacle meeting the requirements of Part 6.2.4, made of metal, glass or plastics and containing a gas, compressed, liquefied or dissolved under pressure, with or without a liquid, paste or powder, and fitted with a release device allowing the contents to be ejected as solid or liquid particles in suspension in a gas, as a foam, paste or powder or in a liquid state or in a gaseous state.”

The UNMR has the provision “with or without a liquid, paste or powder” in its definition of an aerosol, which allows gas-only aerosols to be treated similarly as other aerosols. The lack of this provision in the U.S. definition precludes allowing an aerosol to be a product that expels gas only, whether that is just the propellant or a gas mixture that the propellant expels.

Products impacted by this include electronic dusters, safety horns, keyboard dusters and chewing gum removers, all of which have a safe track record of shipping within the U.S.

Disallowing these products to be classified as an aerosol incurs additional costs by requiring shipment under special permits, such as U.S. Dept. of Transportation (DOT)-SP 10232, DOT-SP 14188, and DOT-SP 14286. It also adds a layer of complication for transportation packaging, permitting and handling. While freight costs for shipping products under these special permits are the same as other aerosols, manufacturers have to mark the containers and use corrugated cardboard packaging in accordance with the permit. Any facility that offers or reoffers the package for transportation must maintain a copy of the special permit. Duration of the special permit is initially for two years and subsequent renewals may be granted for up to four years, thus companies need to continually reapply for the permit to be reissued without a modification to the definition. Any employee performing a function required by a special permit or shipping a special permit package is required to receive specific training of their responsibility with respect to the special permit and its requirements, including shippers and carriers of the product.

The Consumer Specialty Products Association (CSPA) along with the Council on Safe Transportation of Hazardous Articles, Inc (COSTHA), the National Aerosol Association (NAA) and American Coatings Association (ACA) have petitioned the Pipeline & Hazardous Materials Safety Administration (PHMSA) to harmonize the HMR with the UNMR’s definition of an aerosol. By harmonizing this definition, the aerosol industry will be able to ship gas only aerosols as though they were any other aerosol, without shipping them as hazardous materials (HAZMAT) or utilizing special permits, thereby minimizing costs and undue burden upon manufacturers, handlers and shipping distribution.

Modifying the current definition in the HMR is a step in the right direction. However, we must consider the larger role that regulatory definitions play with regards to promoting or stifling innovation in the industry. Refillable aerosols are an area of huge growth potential, but sticking with the status quo means that before going to market, we’ll need to again petition to modify the HMR and UNMR definition to allow refillable containers to be considered aerosols. Without forward looking modifications to the aerosol definition, we will continue to repeat this cycle, stifle innovation, lengthen time to market and add pointless complications for manufacturers, handlers and shipping distribution. SPRAY