Kayla has done a fabulous job breaking down the Safe Cosmetics Act of 2011. We are starting at the end of the bill and working our way to the beginning. Here is the post that breaks down SEC 3 Worker Issues.
This is the final blog in a series of blogs to address The Safe Cosmetics Act H.R. 2359.
KEY: All Plain Text is directly from H.R. 2359 as it is written, Green is my commentary, Pink is from OHSA,
SEC. 3. WORKER ISSUES.
(a) IN GENERAL.—The Secretary of Labor shall promulgate an occupational safety and health standard under section 6 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655) that requires the following:
This is saying that the Secretary of Labor will make widely known promulgate an occupational safety and health standard under section 6 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655) which currently states:
(6) (A) Any employer may apply to the Secretary for a temporary order granting a variance from a standard or any provision thereof promulgated under this section. Such temporary order shall be granted only if the employer files an application which meets the requirements of clause (B) and establishes that –
(i) he is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or alteration of facilities cannot be completed by the effective date,
(ii) he is taking all available steps to safeguard his employees against the hazards covered by the standard, and
(iii) he has an effective program for coming into compliance with the standard as quickly as practicable.
Any temporary order issued under this paragraph shall prescribe the practices, means, methods, operations, and processes which the employer must adopt and use while the order is in effect and state in detail his program for coming into compliance with the standard. Such a temporary order may be granted only after notice to employees and an opportunity for a hearing: Provided, That the Secretary may issue one interim order to be effective until a decision is made on the basis of the hearing. No temporary order may be in effect for longer than the period needed by the employer to achieve compliance with the standard or one year, whichever is shorter, except that such an order may be renewed not more that twice (I) so long as the requirements of this paragraph are met and (II) if an application for renewal is filed at least 90 days prior to the expiration date of the order. No interim renewal of an order may remain in effect for longer than 180 days.
(B) An application for temporary order under this paragraph (6) shall contain:
(i) a specification of the standard or portion thereof from which the employer seeks a variance,
(ii) a representation by the employer, supported by representations from qualified persons having firsthand knowledge of the facts represented, that he is unable to comply with the standard or portion thereof and a detailed statement of the reasons therefor,
(iii) a statement of the steps he has taken and will take (with specific dates) to protect employees against the hazard covered by the standard,
(iv) a statement of when he expects to be able to comply with the standard and what steps he has taken and what steps he will take (with dates specified) to come into compliance with the standard, and
(v) a certification that he has informed his employees of the application by giving a copy thereof to their authorized representative, posting a statement giving a summary of the application and specifying where a copy may be examined at the place or places where notices to employees are normally posted, and by other appropriate means.
A description of how employees have been informed shall be contained in the certification. The information to employees shall also inform them of their right to petition the Secretary for a hearing.
(C) The Secretary is authorized to grant a variance from any standard or portion thereof whenever he determines, or the Secretary of Health and Human Services certifies, that such variance is necessary to permit an employer to participate in an experiment approved by him or the Secretary of Health and Human Services designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers.
And to this they want to add ALL of the following:
(1) MANUFACTURERS AND IMPORTERS.—Each manufacturer or importer selling any cosmetic for professional use shall—
(A) obtain or develop a material safety data sheet described in subsection (b) for each such cosmetic or personal care product that—
This is a big change here. Currently MSDS sheets are required for hazardous ingredients. This is an alarming addition this bill. It would require unnecessary equipment and testing in order to produce an MSDS sheet for completely safe cosmetics. Just so you understand what an MSDS is and how it is completely misused in this application I have included an in depth review of MSDS sheets.
An MSDS is a single document prepared by the manufacturer that contains all the information about the chemical make-up, use, storage, handling, emergency procedures and the potential health effects related to a hazardous material. MSDS were originally intended for hazardous materials only in order to comply with Federal regulations; however, now many materials with no hazards have a MSDS simply for product liability purposes alone.
An ingredient that has a MSDS is not necessarily a hazardous material or causes health effects. The MSDS sheet is simply giving information about the safe handling of the ingredient at full concentration.
All MSDSs are required to contain the same uniform categories of information including: chemical identity, health hazard data, manufacturer information, precautions for safe handling and use, hazardous ingredients, exposure controls/personal protection, physical/chemical properties as well as fire and explosion hazard data. The purpose of an MSDS is to inform you of proper handling of a material, first aid treatment, accident response protocol, effect on human health, chemicals with which it can adversely react, as well as the chemical make-up and physical properties prior to usage. And when new regulatory information or health effects information becomes available the MSDS must be updated.
MSDS can be hard to interrupt. That is because the original purpose of a MSDS was for industrial hygienist, chemical engineers and safety professionals who were trained to read them. MSDS have now become more widely used but the language was never changed to laymen terms. MSDS are often used by employers of all sizes, employees, emergency responders, soap makers and home crafters. Sometime you will find MSDSs that are formatted differently by some manufacturers, but they all contain the exact same information that is required by law.
If you have employees you are required by law to maintain readily accessible MSDS for any “known to be present” hazardous materials in the workplace. MSDS are designed for employees who will occupationally come in contact with hazardous materials. OSHA Hazard Communication Standard requires that safety training on proper handling of materials be conducted, all hazardous material is labeled appropriately and if you have contractors on the premises you must inform them of the potential hazards. The MSDS is designed to help employers and employees protect themselves from hazardous chemical exposures and to teach them to handle material safely.
Now what does all that have to do with lotion, crème, shampoo and massage oil? Nothing! Just think of all new tests and equipment that all businesses will need to have in order to create an MSDS sheet for finished cosmetic products.
(i) the manufacturer or importer produces or imports; and
(ii) includes a hazardous chemical, or a product ingredient associated with any chemical hazard, that is classified as a health hazard in accordance with the criteria found in section 1910.1200(d) of title 29 of the Code of Federal Regulations, and any successor regulations; and
1910.1200(a)(1) The purpose of this section is to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees. This transmittal of information is to be accomplished by means of comprehensive hazard communication programs, which are to include container labeling and other forms of warning, material safety data sheets and employee training.
1910.1200(a)(2) This occupational safety and health standard is intended to address comprehensively the issue of evaluating the potential hazards of chemicals, and communicating information concerning hazards and appropriate protective measures to employees, and to preempt any legal requirements of a state, or political subdivision of a state, pertaining to this subject. Evaluating the potential hazards of chemicals, and communicating information concerning hazards and appropriate protective measures to employees, may include, for example, but is not limited to, provisions for: developing and maintaining a written hazard communication program for the workplace, including lists of hazardous chemicals present; labeling of containers of chemicals in the workplace, as well as of containers of chemicals being shipped to other workplaces; preparation and distribution of material safety data sheets to employees and downstream employers; and development and implementation of employee training programs regarding hazards of chemicals and protective measures. Under section 18 of the Act, no state or political subdivision of a state may adopt or enforce, through any court or agency, any requirement relating to the issue addressed by this Federal standard, except pursuant to a Federally-approved state plan.
1910.1200(b) “Scope and application.”
1910.1200(b)(1) This section requires chemical manufacturers or importers to assess the hazards of chemicals which they produce or import, and all employers to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, material safety data sheets, and information and training. In addition, this section requires distributors to transmit the required information to employers. (Employers who do not produce or import chemicals need only focus on those parts of this rule that deal with establishing a workplace program and communicating information to their workers. Appendix E of this section is a general guide for such employers to help them determine their compliance obligations under the rule.)
1910.1200(b)(2) This section applies to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency.
1910.1200(b)(3) This section applies to laboratories only as follows:
1910.1200(b)(3)(i) Employers shall ensure that labels on incoming containers of hazardous chemicals are not removed or defaced;
1910.1200(b)(3)(ii) Employers shall maintain any material safety data sheets that are received with incoming shipments of hazardous chemicals, and ensure that they are readily accessible during each workshift to laboratory employees when they are in their work areas;
1910.1200(b)(3)(iii) Employers shall ensure that laboratory employees are provided information and training in accordance with paragraph (h) of this section, except for the location and availability of the written hazard communication program under paragraph (h)(2)(iii) of this section; and,
1910.1200(b)(3)(iv) Laboratory employers that ship hazardous chemicals are considered to be either a chemical manufacturer or a distributor under this rule, and thus must ensure that any containers of hazardous chemicals leaving the laboratory are labeled in accordance with paragraph (f)(1) of this section, and that a material safety data sheet is provided to distributors and other employers in accordance with paragraphs (g)(6) and (g)(7) of this section.
1910.1200(b)(4) In work operations where employees only handle chemicals in sealed containers which are not opened under normal conditions of use (such as are found in marine cargo handling, warehousing, or retail sales), this section applies to these operations only as follows:
1910.1200(b)(4)(i) Employers shall ensure that labels on incoming containers of hazardous chemicals are not removed or defaced;
1910.1200(b)(4)(ii) Employers shall maintain copies of any material safety data sheets that are received with incoming shipments of the sealed containers of hazardous chemicals, shall obtain a material safety data sheet as soon as possible for sealed containers of hazardous chemicals received without a material safety data sheet if an employee requests the material safety data sheet, and shall ensure that the material safety data sheets are readily accessible during each work shift to employees when they are in their work area(s); and,
1910.1200(b)(4)(iii) Employers shall ensure that employees are provided with information and training in accordance with paragraph (h) of this section (except for the location and availability of the written hazard communication program under paragraph (h)(2)(iii) of this section), to the extent necessary to protect them in the event of a spill or leak of a hazardous chemical from a sealed container.
1910.1200(b)(5) This section does not require labeling of the following chemicals:
1910.1200(b)(5)(i) Any pesticide as such term is defined in the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.), when subject to the labeling requirements of that Act and labeling regulations issued under that Act by the Environmental Protection Agency;
1910.1200(b)(5)(ii) Any chemical substance or mixture as such terms are defined in the Toxic Substances Control Act (15 U.S.C. 2601 et seq.), when subject to the labeling requirements of that Act and labeling regulations issued under that Act by the Environmental Protection Agency;
1910.1200(b)(5)(iii) Any food, food additive, color additive, drug, cosmetic, or medical or veterinary device or product, including materials intended for use as ingredients in such products (e.g. flavors and fragrances), as such terms are defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) or the Virus-Serum-Toxin Act of 1913 (21 U.S.C. 151 et seq.), and regulations issued under those Acts, when they are subject to the labeling requirements under those Acts by either the Food and Drug Administration or the Department of Agriculture;
1910.1200(b)(5)(iv) Any distilled spirits (beverage alcohols), wine, or malt beverage intended for nonindustrial use, as such terms are defined in the Federal Alcohol Administration Act (27 U.S.C. 201 et seq.) and regulations issued under that Act, when subject to the labeling requirements of that Act and labeling regulations issued under that Act by the Bureau of Alcohol, Tobacco, and Firearms;
1910.1200(b)(5)(v) Any consumer product or hazardous substance as those terms are defined in the Consumer Product Safety Act (15 U.S.C. 2051 et seq.) and Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.) respectively, when subject to a consumer product safety standard or labeling requirement of those Acts, or regulations issued under those Acts by the Consumer Product Safety Commission; and,
1910.1200(b)(5)(vi) Agricultural or vegetable seed treated with pesticides and labeled in accordance with the Federal Seed Act (7 U.S.C. 1551 et seq.) and the labeling regulations issued under that Act by the Department of Agriculture.
1910.1200(b)(6) This section does not apply to:
1910.1200(b)(6)(i) Any hazardous waste as such term is defined by the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. 6901 et seq.), when subject to regulations issued under that Act by the Environmental Protection Agency;
1910.1200(b)(6)(ii) Any hazardous substance as such term is defined by the Comprehensive Environmental Response, Compensation and Liability ACT (CERCLA) (42 U.S.C. 9601 et seq.) when the hazardous substance is the focus of remedial or removal action being conducted under CERCLA in accordance with the Environmental Protection Agency regulations.
1910.1200(b)(6)(iii) Tobacco or tobacco products;
1910.1200(b)(6)(iv) Wood or wood products, including lumber which will not be processed, where the chemical manufacturer or importer can establish that the only hazard they pose to employees is the potential for flammability or combustibility (wood or wood products which have been treated with a hazardous chemical covered by this standard, and wood which may be subsequently sawed or cut, generating dust, are not exempted);
1910.1200(b)(6)(v) Articles (as that term is defined in paragraph (c) of this section);
1910.1200(b)(6)(vi) Food or alcoholic beverages which are sold, used, or prepared in a retail establishment (such as a grocery store, restaurant, or drinking place), and foods intended for personal consumption by employees while in the workplace;
1910.1200(b)(6)(vii) Any drug, as that term is defined in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.), when it is in solid, final form for direct administration to the patient (e.g., tablets or pills); drugs which are packaged by the chemical manufacturer for sale to consumers in a retail establishment (e.g., over-the-counter drugs); and drugs intended for personal consumption by employees while in the workplace (e.g., first aid supplies);
1910.1200(b)(6)(viii) Cosmetics which are packaged for sale to consumers in a retail establishment, and cosmetics intended for personal consumption by employees while in the workplace;
1910.1200(b)(6)(ix) Any consumer product or hazardous substance, as those terms are defined in the Consumer Product Safety Act (15 U.S.C. 2051 et seq.) and Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.) respectively, where the employer can show that it is used in the workplace for the purpose intended by the chemical manufacturer or importer of the product, and the use results in a duration and frequency of exposure which is not greater than the range of exposures that could reasonably be experienced by consumers when used for the purpose intended;
1910.1200(b)(6)(x) Nuisance particulates where the chemical manufacturer or importer can establish that they do not pose any physical or health hazard covered under this section;
1910.1200(b)(6)(xi) Ionizing and nonionizing radiation; and,
1910.1200(b)(6)(xii) Biological hazards. OHSA
(B) make the material safety data sheet available to distributors and employers, including salon owners, in English and, upon request, in other languages, including Spanish and Vietnamese.
Since there will be no universal MSDS for finished cosmetics this means that you will have to have your MSDS sheet available in whatever language is requested for your distributors or employees.
(2) DISTRIBUTORS.—Each distributor of a cosmetic or personal care product for professional use shall distribute and provide material safety data sheets described in subsection (b) in the same manner as a distributor of a chemical hazard is required to distribute and provide material safety data sheets under section 1910.1200(g) of title 29, Code of Federal Regulations, or any successor regulations. (see above)
Your distributor then must pass on your MSDS sheet to anyone they sell your product to.
(3) EMPLOYERS.—Each employer, including any operator of a salon, shall—
(A) have a material safety data sheet in the workplace for each cosmetic or personal care product for professional use that is used in the course of the employer’s business;
And the chain keeps going…
(B) make such material safety data sheet available to all employees of the employer who are exposed or use the product to the same exent and in the same manner as material safety data sheets are required to be made available under section 1910.1200(g) of title 29, Code of Federal Regulations, or any successor regulations; and
(C) upon request, provide employees with translations of such material safety data sheet in other languages, including Spanish and Vietnamese.
(b) CONTENTS OF MATERIAL SAFETY DATA SHEET.—A material safety data sheet for a cosmetic or personal care product for professional use described in this section shall—
(1) contain the information required in a material safety data sheet under section 1910.1200(g) of title 29, Code of Federal Regulations, or any successor regulations, for each hazardous chemical, or product ingredient associated with any chemical hazard, described in subsection (a)(1)(A)(ii); and
Now we are no longer talking about the MSDS of the finished product. This means that you will need to have an MSDS document for all of the ingredients inside the finished cosmetic as well. This is completely absurd since the safety data of handling the lye that was used to make a bar is no longer necessary since the lye is transformed into soap and no longer a hazard.
(2) include the following statement: ‘‘This material safety data sheet is also available in multiple languages by contacting the manufacturer, using the contact information provided on this sheet.’’.
(c) PROFESSIONAL USE DEFINED.—In this section, the term ‘‘professional use’’ has the meaning given such term in section 611(6) of the Federal Food, Drug, and Cosmetic Act, except to the extent that such term applies to a product that is sold as a retail product in any of the establishments listed under such definition.
Honestly, I have been backwards and forwards through the Federal Food, Drug, and Cosmetic Act and cannot find section 611(6). If you find it please include a link.