In September, the Occupational Safety and Health Administration (OSHA) issued an advance notice on the implementation of the Globally Harmonized System (GHS) of Classification and Labeling of Chemicals. (71 Fed. Reg. 53617.) OSHA also issued a useful Guide to the Globally Harmonized System of Classification and Labeling of Chemicals. GHS is an important global system of which, if implemented, is expected to bring much-needed consistency and harmony to the labeling, classification and hazard communication of workplace hazardous chemicals.

Industry must comply with U.S. requirements regarding the classification and labeling of hazardous chemicals issued by the Consumer Product Safety Commission, the Department of Transportation, the Environmental Protection Agency and OSHA. Not surprisingly, many countries have comparable regulatory systems in place intended to implement these types of classification and labeling requirements in their regions. That there are so many systems in place to warn against a hazard is, at one level, good news. The bad news is these systems are often sufficiently dissimilar so as to invite inconsistencies, trade barriers and downright confusion with regard to the classification and labeling of chemicals. For example, some products marketed in different countries may bear different labels and safety data sheets, and sometimes labels vary even in the same country when parts of the product lifecycle are covered by different regulatory authorities.

Although the GHS itself is not a “regulation” or a “standard” as defined under the law, the GHS document (referred to as The Purple Book) establishes agreed-upon hazard classification and communication provisions with explanatory information on how to apply the system. GHS elements provide a mechanism to meet the basic requirements of the hazard communication system, which, according to OSHA “is to decide if the chemical product produced and/or supplied is hazardous, and to prepare a label and/or safety data sheet as appropriate.” Regulatory authorities in countries that have adopted or are adopting the GHS will use the agreed-upon criteria and provisions and implement them through their own regulatory processes.

The key value offered by the GHS is that it provides countries with what OSHA refers to as the “regulatory building blocks” to develop and/or adjust national programs that address hazard classifications, the communication of information above those hazards and the measures to abate them. This helps to ensure the prudent management and use of chemicals from cradle to grave.

OSHA says the “single most important force that drove the creation of the GHS” was the international mandate adopted in 1992 by the United Nations Conference on Environment and Development (UNCED), referred to as the Earth Summit. The harmonization of classification and labeling of chemicals was one of six program areas endorsed by the United Nations General Assembly and intended to strengthen global efforts concerning the environmentally sound management of chemicals. The UN General Assembly recognized that an internationally harmonized approach to the classification and labeling of chemicals would provide a sound foundation for all countries to develop comprehensive national programs to ensure the safe use of chemicals. The OSHA guidance document provides a detailed and useful summary of the significant regulatory background of the development of the GHS.

GHS Scope
The GHS covers all hazardous chemicals. There are no complete exemptions from the scope of the GHS for any particular chemical or product. The term “chemical” is used broadly to include substances, products, mixtures, preparations or any other terms that may be used by existing regulatory systems. “Articles” as defined by the OSHA Hazard Communication Standard (HCS) or similar definitions are beyond the scope of the GHS. Chemical inventory systems maintained by EPA under TSCA, or the European Union under EINECS, and related chemical control requirements in various countries are not harmonized by the GHS. Rather, classification of the GHS is criteria-based so coverage cannot be limited to a chemical list that can become outdated. It is not expected that the GHS will develop or maintain an international classification authority or list. GHS classification criteria can be used to reclassify chemicals on lists if desired, however. Existing chemical lists could be used in conjunction with the GHS to promote harmonization.

As noted, the GHS is a voluntary international system that imposes no binding obligations on countries. If countries adopt the GHS into their systems, however, any corresponding regulatory changes would be binding for covered industries. For countries with existing systems, it is expected that the GHS's components would be applied within the regulatory framework of existing regulatory hazard communication.

For certain areas, the OSHA guidance document outlines how the application of the GHS is expected to impact certain sectors. For example, for transport, it is expected that application of the GHS would be similar to application of current transport requirements: GHS physical, acute and environmental hazard criteria are expected to be adopted in the transport sector; containers of dangerous goods would have pictograms that address acute toxicity, physical hazards and environmental hazards; and GHS hazard communication elements such as signal words, hazard statements and Safety Data Sheets are not expected to be adopted in the transport sector.

With respect to the workplace, OSHA notes it is expected that most of the GHS elements would be adopted, including GHS physical and health hazard criteria; labels that have the harmonized core information under the GHS; Safety Data Sheets ; and employee training to help ensure effective communication. All workplace systems may not have the jurisdiction to adopt environmental hazards, however.

As for the consumer sector, it is expected that labels would be the primary focus of the GHS application. The appropriate GHS hazard criteria are expected to be adopted, and labels will include the core elements of the GHS subject to some sector-specific considerations in certain systems.

As for pesticides, it is expected that the GHS would be adopted, the appropriate GHS hazard criteria would be adopted and pesticide labels would include the core elements of the GHS subject to some sector-specific considerations in certain systems.

To prepare for a formal rulemaking proposing adoption of the GHS and modification of the HCS, OSHA seeks comment on many issues. They include, for example, the number of hazardous chemicals, as defined by the HCS, that entities produce, import or distribute; the number of hazardous chemicals exported; and the number of different labels or data sheets entities need to prepare for each exported chemical. OSHA seeks information on who is responsible for reviewing the data on chemicals and preparing appropriate labels and Safety Data Sheets, what is their professional background and whether entities make independent determinations or rely largely on labels or data sheets developed by others (suppliers or materials available on the Internet).

OSHA also is interested in knowing whether entities will save resources and derive other benefits by having to classify a chemical only once instead of multiple times depending on how many agencies and countries are involved, and other related benefits flowing from the GHS. OSHA also seeks information on timing, technical issues, and competitive assistance and outreach. OSHA seeks comment on many specific issues in the proposed rule.

Readers are urged to assist OSHA and comment on these important issues. Implementation of the GHS will profoundly impact U.S. industry, and OSHA needs to hear from all sectors of the economy to get GHS implementation right. The advanced notice of the proposed rule provides an excellent platform to begin the process.  

Lynn L. Bergeson is a managing director of Bergeson & Campbell P.C., a Washington, D.C., law firm. For more information, call 202-557-3800.

©2006 Schofield Media Ltd.