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The history of “Need to Know,” which became “right to know,” began at the Occupational Safety and Health Administration (OSHA) in 1973. The immensity of the task of maintaining and tracking the constantly changing health effects and toxicity data required for material safety data sheets (MSDS) and labels changed the regulators' planned methodology. The emergence in recent years of the courtroom principle of strict liability changed the views of the large chemical manufacturers. The right-to-know standard became a vehicle to downshift some liability away from the suppliers to the supplied parties. The courts took a contentious stand against the restrictive policy of OSHA, which covers only those workers in manufacturing, and ordered a widening to cover all workers falling under federal authority. The courts have been breaking down the ability of a manufacturer or formulator to withhold trade secrets from the MSDS data, and in Nov. 1985 OSHA published a new revised policy.
The communities, which include police, firemen, and in some states the public at large, are claiming rights to the information. Some 35 states have already passed right-to-know legislation in one form or another with a high probability that other states will follow suit.
The technical staff requirements for in-house maintenance and the creation of MSDS information is beyond the reach of many chemical manufacturers and formulators in terms of personnel requirements and the need for an extensive chemical, biological library. Many corporate users have not digested the import of multiple suppliers with drastically different MSDSs on commodity chemicals which they purchase from many manufacturers. The liability will be assessed by the courts in terms of the weakest MSDS whether such MSDS was provided to the worker or not. Such weak MSDSs will be obtained for possible entry as evidence through the discovery process.
hazard communication, need to know, OSHA, chemical mixtures, trade secret, preempted, strict liability, communities, right to know, MSDS, ommissions, maintenance and perishability, full disclosure, commodity chemical, tort, downshift liability, deepest pocket
President, Occupational Health Services, Inc., Nashville, TN