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In the context of an MSDS, a trade secret and "secrecy" have a very rigorous definition as defined by OSHA in Appendix D to the Hazard Communication Standard, 29 CFR 1910.1200.
When 29 CFR 1910.1200, the OSHA Hazard Communication Standard was being drafted, some manufacturers worried that the requirement to provide MSDS's would give away their "secret formulas" or proprietary information about their products. Thus, Paragraph (i) of the Standard permits a manufacturer, importer or even employer to withhold the specific chemical identity of a material provided that all of the following apply:|
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The designation of an incident as a "medical emergency" is left to the discretion of the treating physician or nurse. Failure to disclose the identity in this situation will result in the issuance of a willful citation. For non-emergencies, where OSHA believes that the chemical manufacturer, importer or employer will not be able to support the trade secret claim, the withholding of a specific chemical identity shall be cited as a violation.
OSHA has a very specific and rigorous definition/discussion of "trade secret" which makes up Appendix D of 29 CFR 1910.1200. An important quote from this section is "Matters of public knowledge or of general knowledge in an industry cannot be appropriated by one as his secret. Matters which are completely disclosed by the goods which one markets cannot be his secret." So if you have a product which is easily reverse engineered or is a generic equivalent of other products, it would be quite difficult to support such a claim. You can not claim a "trade secret" merely for your own convenience or to prevent others from knowing that your magic cleaner is really just isopropyl alcohol. See this OSHA interpretation letter titled "0/23/2001 - Criteria for trade secret status" for more information.
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In addition, the specific chemical identity must made available to health professionals, employees, and designated representatives in both emergency and non-emergency situations as detailed in Paragraph i(3). Moreover, individual state Right-To-Know (RTK) laws may afford employees additional access to trade secret information.
The trade secret provision may not be invoked merely to prevent recipients from seeing the identity of the supplier or distributor of the product. See our MSDS FAQ question As a distributor, can we change the name and address on an MSDS?.
In the state of New Jersey, a trade secret claim must include the New Jersey Trade Secret Registry Number (TSRN).
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