The Occupational Safety and Health Administration (“OSHA”) has recently submitted to the White House Office of Management and Budget (“OMB”) a final rule to update its Hazard Communication Standard (“HazCom”), which regulates the classification and labeling of hazardous chemicals in the workplace. The rule aims to align the HazCom with the latest version of the Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”), which is an international framework for consistent chemical hazard communication. The rule introduces some significant changes and challenges particularly for chemical companies and especially those exporting to the European Union (“EU”).

One of the most controversial aspects of the rule is the requirement to include on warning labels “any hazards” posed by a chemical. This includes potential hazards of the chemical not only in its current form but possible downstream combinations and reactions as well. This may require companies to craft safety sheets and warning labels for chemicals not already subject to work-safety rules. The change also places a burden on companies to gather and evaluate data on the potential hazards of their chemicals in various scenarios and contexts, which could be costly, time-consuming, and uncertain. Effected companies will need to keep alert of changed hazard warnings, labeling requirements, and shifts in protection for confidential business information, such as trade secrets and proprietary formulas.

Another challenge for international chemical companies is the compatibility of the rule with the EU’s chemical regulations, which are more stringent and progressive than in the United States. Even with the changes, the final rule is still behind the international GHS, especially regarding chemicals and products that have been tested on animals, like cosmetics.

This creates a dilemma for companies who want to comply with both OSHA and EU regulations and may force consideration of separate labels for different jurisdictions. However, separate labels also create confusion and mistrust among consumers and regulators, who may wonder why a product has different hazard warnings in different markets.

The proposed final rule also calls for changes that would reduce labeling on small-containers. Under the rule, containers less than or equal to 100 milliliters would now only need to include the product identifier, pictograms, signal word, and then the chemical manufacturer’s name and phone number—the full list of hazard statements and precautionary statements would be omitted. Additionally, for containers with a three-milliliter capacity, the container would only need to bear the product identifier if the manufacturer can “demonstrate that a label would interfere with a normal use of the container.” The final rule was submitted for OMB approval on October 11th, 2023 and is expected to be finalized early next year.