This news article, Protecting Your Chemical Trade Secrets vs. OSHA Compliance, is brought to you by jdsupra.com.
Scenario: You are a chemical manufacturer and have created a chemical formulation that you intend to keep secret, to keep others from copying your product. The new formulation is hazardous and therefore must be handled with care in order to prevent incidents arising from improper transportation (e.g., cannot be exposed to heat or will explode), improper handling (e.g., will burn when in contact with skin), and improper use (e.g., cannot be ingested). You know that OSHA requires chemical manufacturers to provide Safety Data Sheets (SDSs) (formerly known as Material Safety Data Sheets or MSDSs) to communicate the risks of hazardous materials and disclose the formulation, but you don’t want to disclose your trade secret. So what does that mean for your formulation and labeling requirements under OSHA?
Requirements Under OSHA
Fortunately for chemical manufacturers, OSHA’s hazard communication standard still enables chemical manufacturers to withhold the identification of chemical components from disclosure in an SDS by simply stating that a specific chemical identity “is being withheld as a trade secret”, continuing previous allowances prior to the 2012 alignment with the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals (GHS), known as HazCom 2012. However, some exclusions do apply. Under HazCom 2012, a manufacturer can claim trade secret protection for the exact percentage (concentration) of the substance in a mixture. This means that in addition to or as an alternative to withholding the exact chemical identity, a manufacturer can withhold the exact concentration of a substance in the mixture. Where a manufacturer chooses to withhold the exact percentage of a substance as a trade secret, a range for that component is provided instead.
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