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OSHA Hazard Communication Letters of Interpretation
Consumer product exemption under the OSHA Hazard Communication Standard (HCS).
- Issued
- Record type
- Interpretation
- Historical standard
- 1910.1200, 1987 expanded rule (PDF)
- Current standard
- HCS 2024, as amended
ILPI assessment: Consumer-use test retained; litigation and directive status historical
This letter addresses the obsolete 1987 version of the Hazard Communication Standard (HCS). Its central HazCom point remains useful: consumer marketing alone does not establish an exemption for occupational use with greater exposure. The OMB/court chronology and pending 1989 petitions are historical.
Under the current HCS, consumer-product exemption (FAQ explanation) requires the employer to demonstrate intended consumer use and workplace exposure duration/frequency no greater than reasonably experienced by consumers. Apply the full text, not an earlier blanket exemption. The 1988 CPL 2-2.38B is not the later CPL 2-2.38D; use current HCS inspection procedures for the current enforcement counterpart.
OSHA archive notice: OSHA marks its matching original as an archive document that may no longer represent agency policy and is retained for historical research. This notice does not by itself establish formal withdrawal.
Last reviewed: .
About this ILPI assessment
This comparison with current requirements is not a finding that OSHA has formally withdrawn this letter. This assessment reflects editorial judgment informed by human review and AI assistance. It is an opinion, may contain errors or omissions, and is not an official OSHA determination. For guidance on how OSHA requirements apply to your circumstances, contact your local OSHA office.
OSHA's notice about interpretation letters
The following notice is published on OSHA's interpretation pages; it is general guidance, not a letter-specific withdrawal notice.
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.
Source: OSHA's original letter page.
May 2, 1989
Mr. Louis R. Marchese
Halfpenny, Hahn, Roche & Marchese
20 North Wacker Drive
Chicago, Illinois 60606
Dear Mr. Marchese:
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This is in response to your letter of January 11, concerning the consumer product exemption under the Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard (HCS).
The Office of Management and Budget (OMB) approved all but three of the requirements of the HCS to meet the provisions of the Paperwork reduction Act. These three requirements are:
- the requirement that material safety data sheets be provided on multi-employer worksites:
- the coverage of any consumer product that falls within the "consumer product" exemption included in Section 311(3) of the Superfund Amendments and Reauthorization Act of 1986; and
- the coverage of any drugs regulated by the Food and Drug Administration in the nonmanufacturing sector.
On August 19, 1988, the United States Court of Appeals for the Third Circuit ruled that OMB had exceeded its authority, under the Paperwork Reduction Act, in disapproving the three provisions of the expanded HCS. The court ordered OSHA to "publish in the Federal Register a notice that those parts of the August 27, 1987, Hazard Communication Standard which were disapproved by OMB are now effective." On September 2, 1988,the Department of Justice filed a petition for rehearing with a suggestion for rehearing by the entire third Circuit Court of appeals. The Court of Appeals denied the petition for rehearing (November 29, 1988), as well as requests for stay of the decision. In addition, a further motion by industry representatives for a stay of the decision was denied on January 24, by the U.S. Supreme Court Justice Brennan, and on February 17, by the full Court on reconsideration. The Solicitor general has filed a petition for a writ of certiorari on behalf of the government in the United Steelworkers case. Industry representatives also petitioned the Supreme Court for writs of certiorari in both the United Steelworkers case and in Associated Builders land Contractors, in which industry challenged the validity of the standard's application to nonmanufacturing employers. Those requests are pending. If certiorari is granted, the Supreme Court may ultimately decide the enforceability of these provisions.
However, the Third Circuit's decision became effective January 30 of this year and OSHA complied with the Third Circuit order by publishing a notice in the Federal Register on February 15 announcing the effectiveness. All provisions of the HCS are now effect in all industries.
Consequently, statements in the OSHA Instruction CPL 2-2.38B regarding the exemption of all consumer products are no longer applicable.
Under the current rule, whenever a consumer product is not used in a manner similar to that of normal consumer use, resulting in a duration and frequency of exposure greater than consumers experience, the product is covered by the HCS.
[ILPI note: At issuance: 1910.1200, 1987 expanded rule (PDF). “Current” here means 1989. Present counterpart: consumer-product exemption (FAQ explanation). The employer must demonstrate the exemption's full conditions; the court petitions and blanket-exemption directive discussion are historical.]
We hope this adequately responds to your concerns. If we can be of further assistance to you, please do not hesitate to contact us.
Sincerely,
Patricia K. Clark, Acting Director Directorate of Compliance Programs
The original official public domain version of this document is available from OSHA at https://www.osha.gov/laws-regs/standardinterpretations/1989-05-02-0.