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Trade Secret

Definition

A trade secret is any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or even a list of customers. In other words, the trade secret is proprietary information, that which the holder of the secret does not wish to be known to others, particularly his competitors.

In the context of an MSDS, a trade secret and "secrecy" have a very rigorous definition as defined by OSHA in Appendix D to the Hazard Communication Standard, 29 CFR 1910.1200.

Additional Info

When 29 CFR 1910.1200, the OSHA Hazard Communication Standard was being drafted, some manufacturers worried that the requirement to provide MSDS's would give away their "secret formulas" or proprietary information about their products. Thus, Paragraph (i) of the Standard permits a manufacturer, importer or even employer to withhold the specific chemical identity of a material provided that all of the following apply: The claim of a "trade secret" can be supported (key point; more below). The MSDS states that the specific chemical identity is being withheld as a trade secret. The properties and effects of the hazardous chemical, including the PEL, TLV, or other designated exposure limit, is disclosed in the MSDS. The specific chemical identity is made immediately available to a treating physician or nurse in an emergency situation or to the physician, nurse, employee or designated representative under certain non-emergency situations; see Paragraph i(3) for detailed information.

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The designation of an incident as a "medical emergency" is left to the discretion of the treating physician or nurse. Failure to disclose the identity in this situation will result in the issuance of a willful citation. For non-emergencies, where OSHA believes that the chemical manufacturer, importer or employer will not be able to support the trade secret claim, the withholding of a specific chemical identity shall be cited as a violation.

OSHA has a very specific and rigorous definition/discussion of "trade secret" which makes up Appendix D of 29 CFR 1910.1200. An important quote from this section is "Matters of public knowledge or of general knowledge in an industry cannot be appropriated by one as his secret. Matters which are completely disclosed by the goods which one markets cannot be his secret." So if you have a product which is easily reverse engineered or is a generic equivalent of other products, it would be quite difficult to support such a claim. You can not claim a "trade secret" merely for your own convenience or to prevent others from knowing that your magic cleaner is really just isopropyl alcohol. See this OSHA interpretation letter titled "0/23/2001 - Criteria for trade secret status" for more information.

Trade secret exclusions in MSDS's are not very common. For example, the DoD's non-public HMIRS system contains about 270,000 MSDS's and only about 5% of these have proprietary information in them.

MSDS Relevance

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On occasion, you may encounter an MSDS that does not list the hazardous components by chemical name. If the trade secret provision of Paragraph (i) is invoked, the MSDS must specifically state that the identity is being withheld as a trade secret and information about the properties and effects of the hazardous chemical must still be disclosed. In addition, the specific chemical identity must made available to health professionals, employees, and designated representatives in both emergency and non-emergency situations as detailed in Paragraph i(3). Moreover, individual state Right-To-Know (RTK) laws may afford employees additional access to trade secret information. The trade secret provision may not be invoked merely to prevent recipients from seeing the identity of the supplier or distributor of the product. See our MSDS FAQ question As a distributor, can we change the name and address on an MSDS?. In the state of New Jersey, a trade secret claim must include the New Jersey Trade Secret Registry Number (TSRN).

Further Reading

• Trade secret handling under Canada's WHMIS system.
• The Metzger Law Group discusses Can a Toxic Chemical Be a Trade Secret? where a trade secret is claimed.
• A comprehensive article about trade secrets at Wikipedia.
Trade Secrets at About.com.

See also: Chemical, manufacturer.

Additional definitions from Google and OneLook.

Disclaimer: The information contained herein is believed to be true and accurate, however ILPI makes no guarantees concerning the veracity of any statement. Use of any information on this page is at the reader's own risk. ILPI strongly encourages the reader to consult the appropriate local, state and federal agencies concerning the matters discussed herein.