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April 19, 2012

EPA Issues PR Notice Concerning SDSs As Pesticide Labeling to Address Non-Alignment with OSHA’s New HCS (U.S. Implementation of GHS)

The ACTA Group

The U.S. Environmental Protection Agency (EPA) is scheduled to publish on April 20, 2012, a Federal Register notice announcing the availability of Pesticide Registration Notice (PR Notice) 2012-1, entitled “Material Safety Data Sheets as Pesticide Labeling.” EPA issued the PR Notice on April 9, 2012, and EPA intends it to provide guidance to registrants concerning the relationship between EPA-approved labels for pesticides registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the material safety data sheet (MSDS, also referred to as safety data sheet (SDS)), required by the Occupational Safety and Health Administration (OSHA). The PR Notice explains how registrants can ensure their FIFRA labeling and SDSs comply with both agencies’ requirements. In addition, EPA is soliciting public comment on the information collection activities and related burden estimates associated with the guidance provided in PR Notice 2012-1. Comments on the information collection activities and related burden estimates will be due 60 days after the notice is published in the Federal Register. PR Notice 2012-1 is effective immediately.

In PR Notice 92-4, EPA determined that an SDS that accompanies a pesticide product is considered part of the pesticide’s labeling, but may accompany a pesticide product without notification to or approval by EPA, provided such labeling is consistent with the requirements in 40 C.F.R. Part 156. EPA intends PR Notice 2012-1 to update and clarify PR Notice 92-4.

OSHA requires SDSs under its Hazard Communication Standard (HCS), and as reported in our March 21, 2012, memorandum, which is available online, OSHA recently revised the HCS to align it with the United Nations Globally Harmonized System of Classification and Labeling of Chemicals (GHS). EPA notes that, while OSHA will begin to accept SDSs that are prepared according to the final rule’s requirements on May 25, 2012, EPA has not yet moved to amend its labeling regulations to be consistent with the GHS. This results in differences between EPA’s current requirements and OSHA’s new requirements related to classification criteria, hazard statements, pictograms, and signal words. According to EPA, commenters on OSHA’s proposed rule expressed concern about potential inconsistencies. EPA and OSHA worked together to develop PR-Notice 2012-1 to address these concerns. EPA intends the PR Notice to aid registrants in assuring that the SDSs for their products not be considered inconsistent with the EPA-approved product labeling for pesticides registered under FIFRA by providing guidance on how a registrant may reconcile an SDS with its associated FIFRA labeling.

EPA states that it believes that “generally explaining why the FIFRA label and the SDS contain different hazard communication will prevent users from being misled.” To provide an adequate explanation so the labeling is not misleading, EPA recommends registrants include in their SDSs the hazard information required on the FIFRA label and a brief explanation for differences between that information and the SDS hazard information, as outlined in the PR Notice, which will be posted online. EPA notes that the PR Notice is not binding on EPA and registrants, and that EPA may depart from it “where circumstances warrant and without prior notice.” Likewise, registrants may assert that the guidance is not appropriate generally, or not applicable to a specific pesticide or situation.


The lack of alignment between pesticide product labeling and GHS is certain to invite more headaches for pesticide registrants in the coming days. While the PR Notice is helpful, it falls far short of resolving the inevitable clashes between these two significant labeling programs. Furthermore, provisions for including FIFRA-type information are not located in the current 16-section SDS format specified by OSHA. As a result, EPA’s request for the inclusion of such information in the SDS is conflicting with the typical format specified by GHS and implemented in the HCS. The only section for which additional information is possible to be presented is Section 16, which does not highlight the significance of the pesticide labeling where it should be located in Section 2 of the SDS.

Additionally, it appears the PR Notice will recommend including in the SDS not only required FIFRA information but also an explanation of conflicting information. In many cases, succinct explanations are unlikely to be adequate. As a result, the SDSs may become costly and lengthy tomes rather than efficient hazard communication devices, an outcome that is particularly concerning when the SDS is a reference document in emergency response situations.

The request for comment provides an excellent opportunity to address the lack of alignment between the programs and offer constructive solutions to EPA. Bergeson & Campbell, P.C. would be pleased to assist in identifying solutions and advocating positions on this important topic.