February 15, 1989

Mr. Thomas E. Knauer
Attorney at Law
Hunton & Williams
Post Office Box 1535
Richmond, Virginia 23212

Dear Mr. Knauer:

This is in further response to your letter regarding the Hazard Communication Standard (HCS) promulgated by the Occupational Safety and Health Administration (OSHA). Your inquiry concerned the compliance responsibilities for a client that is a major distributor of health care products.

As you noted in your letter, the HCS specifies duties for distributors of hazardous chemicals. The term distributor is defined. The rule further indicates that "retail" distributors are treated somewhat differently in that they must inform commercial customers that material safety data sheets are available upon request, but do not have to provide the sheets automatically with first shipment of product as other distributors do.

However, your interpretation of the rationale for this distinction is not correct. The requirements and the distinction between "distributors" and "retail distributors" are not related to whether or not the customer uses the product or resells it as you described. The rule differentiates between "distributors" and "retail distributors" to recognize that while retail establishments primarily deal with the general public, selling products that are intended for personal or household consumption, they may also be a supply source for covered employers. The type of over-the-counter operations found in these facilities would make it difficult for most to determine at the point of purchase whether or not a customer is an employer who needs a material safety data sheet (MSDS). The term "on request" system is permitted to preclude the necessity of determining every customer's need for an MSDS at the time of purchase in a retail establishment, or of providing an MSDS to every customer, whether or not the customer is an employer. According to the information provided in your letter, the company you represent distributes health care products to hospitals, physicians, clinics, and nursing homes, not the general public. The Standard Industrial Classification Manual indicates that the wholesale trade division of industry includes those establishments which are primarily engaged in selling merchandise to "industrial, commercial, institutional, farm, or professional business users." Your client's type of business clearly falls within this description of wholesale trade.

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In particular, it appears that your client would be classified under either Standard Industrial Classification (SIC) Code 5086, which encompasses wholesale distributors of mechanical devices and other equipment used by physicians, dentists, etc., and/or SIC Code 5122, which includes wholesale distributors of drugs, drug proprietaries, druggists' sundries, and toiletries.

On the other hand, the retail trade division includes establishments that are primarily engaged in providing merchandise for personal or household consumption. It appears that the only types of business in the retail trade division that may handle the types of products you described would be drug stores and proprietary stores (SIC Code 5912). If a physician, clinic, etc. were to establish a commercial account with such a store for products covered by the rule, then the drug store would become a "retail distributor" under the standard and be required to inform the customer of the availability of the MSDS on request.

Clearly your client is not in retail trade, and would not be considered a retail distributor under the rule. Thus, the distributor's duties to provide the MSDS at the time of the first shipment apply to your client, rather that the "on request" method permitted in a retail establishment.

We hope this information is helpful to you in advising your client.

Sincerely,

Charles E. Adkins
Director
Health Standards Programs