For companies that manufacture and distribute chemical products, preparing and maintaining Safety Data Sheets (SDS) can seem like simple and routine tasks. However, this is not always the case. Companies that consistently follow simple tips may avoid common pitfalls that await the unwary.

The U.S. Occupational Safety and Health Administration (OSHA) requires manufacturers and distributors to provide SDS (previously referred to as Material Safety Data Sheets or MSDS) identifying the potential risks of all “hazardous chemicals” that they manufacture or distribute. In March 2012, OSHA published a final regulation modifying its Hazard Communication Standard (HCS) to conform to a more globally recognized standard.1 The HCS governs what information is required on SDS. Some of the relevant modifications pertaining to SDS include a specified  16-section  SDS  format, revised  criteria for the classification of chemical hazards, and a more robust labeling standard. Although these OSHA regulations were published in 2012, many of these changes may not be on the radar of manufacturers and distributors, or may be on the back-burner because full compliance is not mandatory until June 2015. However, companies that fail to comply with the modified HCS may be subject to OSHA citations, and may put themselves at risk of litigation.

Coordinate With Your SDS Authors to Ensure Accuracy and Completeness. In 2013, HCS violations were the second most frequently cited OSHA violation.2 A recent study conducted by the Centre for Health and Environment Research revealed that SDS often inadequately describe product chemicals, including those known to be extremely dangerous.3 Common SDS inaccuracies include: exposure limits; nonspecific health hazards; the SDS date of preparation; and emergency response procedures. SDS inaccuracies can expose companies to OSHA fines up to $7,000 per “serious” violation and $70,000 for “willful and repeat” violations, with OSHA having broad discretion to determine what constitutes a “serious” or “willful and repeat” violation. Moreover, SDS inaccuracies may expose manufacturers and distributors to risk of litigation from end users or other parties in the supply chain under tort theories of product liability, negligence, and failure to warn.4 On the other hand, diligently maintaining an accurate and complete SDS may reduce a company’s regulatory and litigation risk. While there are currently no required qualifications to author an SDS, due to the complex subject matter and modified HCS requirements, some companies may consider hiring trained professionals to draft their SDS. Fortunately, OSHA has published online resources to guide the SDS drafting process. Companies should also consider whether an update to the SDS is necessary each time there is a product formulation change. SDS authors should be informed about formulation changes so that they can seek additional information or update the SDS accordingly and in a timely fashion.

Authors Are “Responsible Parties.” According to OSHA, the “responsible party” named on the SDS “is held responsible for the accuracy of the information and potentially subject to citation if a violation of the HCS was determined to exist.”5 The HCS allows downstream users (e.g., distributors) to substitute their names on the SDS in place of the manufacturer—a common practice used by distributors to prevent customers from purchasing directly from the manufacturer. Distributors should be aware, however, that as the responsible party named on the SDS, they assume important legal responsibilities that can subject them to greater regulatory and litigation risk.6 Distributors should therefore ensure accuracy and completeness before authoring an SDS, including by using the new mandatory 16-section SDS format as a checklist. Distributors who author SDS should take care with any alterations to the manufacturer’s SDS, particularly if such alterations could be interpreted as downplaying product risks or use and exposure precautions.

Conclusions and Recommendations. While manufacturers and distributors are not required to comply with the modified HCS until June 2015, savvy companies will prepare now. With over a million chemicals requiring new SDS, downstream users should anticipate a lag in the supply chain and may want to inquire about their vendors’ SDS transition plans to ensure timely compliance with the HCS. Each party of the supply chain has specific responsibilities and may be impacted differently by the regulations. Knowing your company’s SDS responsibilities will help you implement tailored precautions to reduce your regulatory and litigation risk.

Finally, companies should have a process for documenting the delivery of SDS to customers with product shipments. Each time there is a new iteration of the SDS, companies should document when and how the new version was provided to its customers. If claims ensue based on SDS compliance, a clear record showing that original and revised SDS were provided to customers can help defend against those claims.

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