Last reviewed 16 May 2012
Desmond Waight looks at the interface between the supply of hazardous substances and mixtures and the transport of dangerous goods labelling requirements.
The European Union (EU) Regulation (EC) No. 1272/2008, known as CLP, prescribes labelling for communication of hazards. It requires that labels be applied to the immediate receptacle, and then to any higher level of packaging, including any outer packaging layer.
For transportation, requirements apply according to the mode of transport. For road the ADR (European Agreement concerning the International Carriage of Dangerous Goods by Road), albeit with some derogations, is applicable in Great Britain and in Northern Ireland for domestic journeys. For sea the International Maritime Dangerous Goods (IMDG) Code applies internationally and domestically. In general the transport requires labelling and/or markings to indicate the presence of dangerous goods within the package. This, in general, is required only on the outermost layer of a package, except where an over package is used.
In this feature, we take a look at the interface between the supply of hazardous substances and mixtures and the transport of dangerous goods labelling requirements; and at the complexities caused by these having been developed by different sets of regulators, using the word “label” in a different way to each other.
To be fair, the CLP Regulations at least recognise that in many cases the hazardous substances and mixtures in the packages will be subject to both the CLP and the transport “labelling” provisions. However, in contrast the transport provisions make no reference to supply labelling issues.
The CLP Regulations do not yet have to be mandatorily applied to hazardous mixtures, but CLP largely reflects the requirements for the supply/transport interface that are found in the 1999/45/EC Dangerous Preparations Directive (DPD), which is implemented in Great Britain by the Chemicals (Hazard Information and Packaging for Supply) Regulations 2009 (SI 2009 No. 716).
Transport and the “interface”
Nowhere in the transport of dangerous goods rules is there any mention of relaxation from the requirements for transport labelling and/or marking where the package is “labelled”, as required by legislative provisions concerning hazard communication for “supply” purposes, ie to provide a warning to those who will store and use the product.
The transport of dangerous goods rules are found in the following regulations:
UN Recommendations on the transport of dangerous goods (UNRTDG)
International Civil Aviation Organisation (ICAO) Technical Instructions (TIs)
International Maritime Dangerous Goods (IMDG) Code
ADR, RID (the “Reglement concernant le transport International ferroviare des merchandises Dangereuses par chemin de fer”, covering rail) and ADN (the European Agreement concerning the International Carriage of Dangerous Goods by Inland Waterways, covering inland waterways).
This lack of referencing of the supply “labelling” provisions also extends to the UK domestic arrangements, even where some derogations are granted to deviate from the general requirements laid down in the regulations, in Great Britain the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009 (SI 2009 No.1348) (CDG 2009).
In the Approved Derogations and Transitional Provisions (ADTP), issued by the Department for Transport (DfT) in support of the regulations, in Road Derogations 4, permission is given for certain products to have the receptacles removed from the outer packaging and be shipped “naked” (ie without placing them into some other sort of outer packaging), in the final stages of retail distribution or initial stage of returns from retail distribution.
This derogation effectively relies on the presence of supply “labelling”, which under supply legislation must be present on the receptacles, to communicate to the driver and anyone else involved in the transport the nature of any hazards that may exist.
This aspect of ensuring that any receptacles removed from their normal transport packaging in the final stages of retail distribution must be shipped naked so that the supply labelling is visible, is a feature that a number of Internet shopping sites (including supermarkets offering home delivery services) have not perhaps fully appreciated.
Here it should be noted that transport rules do not define (eg in UNRTDG Chapter 1.2) the word “label”. However, throughout the transport provisions it uses the word “label” with the meaning restricted to just the danger class label. This has prescribed colours, a number at the bottom point representing the class or division, an inner border line, and generally some sort of symbol indicating the type of danger at the top of the diamond.
Other “devices” used to convey information about the presence of hazards are known as marks. These include the Excepted Quantity packages (EQ) and Limited Quantity packages (LQ) marks (see Illustrations 1 and 2 respectively), that are used to convey to the driver(s) and others involved in the transport that packages contain limited amounts of dangerous goods (that in almost all cases will be hazardous per CLP).
Another mark to convey information that a dangerous good has the potential to cause severe environmental danger is the Environmentally Hazardous Substances (EHS) mark, known in IMDG Code as the Marine Pollutant (MP) mark (see Illustration 3).
this is not a label (ie there is no Class/division number).
Illustration 3: EHS/MP Mark
CLP and the “interface”
In contrast, the CLP regulations do at least recognise this interface between the two sets of provisions.
CLP Article 33 “Specific rules for labelling of outer packaging, inner packaging and single packaging” attempts to specifically cover this issue, albeit with a few issues. Article 33 states the following.
Where a package consists of an outer and an inner packaging, together with any intermediate packaging, and the outer packaging meets labelling provisions in accordance with the rules on the transport of dangerous goods, the inner and any intermediate packaging shall be labelled in accordance with this Regulation. The outer packaging may also be labelled in accordance with this Regulation. Where the hazard pictogram(s) required by this Regulation relate to the same hazard as in the rules for the transport of dangerous goods, the hazard pictogram(s) required by this Regulation need not appear on the outer packaging.
Where the outer packaging of a package is not required to meet labelling provisions in accordance with rules on the transport of dangerous goods, both the outer and any inner packaging, including any intermediate packaging, shall be labelled in accordance with this Regulation. However, if the outer packaging permits the inner or intermediate packaging labelling to be clearly seen, the outer packaging need not be labelled.
Single packages that meet the labelling provisions in accordance with the rules on the transport of dangerous goods shall be labelled both in accordance with this Regulation and the rules on the transport of dangerous goods. Where the hazard pictogram(s) required by this Regulation relate to the same hazard as in rules on the transport of dangerous goods, the hazard pictogram(s) required by this Regulation need not appear.
At first, Article 33 may seem adequate and clear. However on examination there are a number of issues to be considered.
For “fully regulated” transport combination packages, which under transport rules must bear transport labels, there is no problem in interpreting Article 33.
Art 33(1) says that if the goods are dangerous for transport and hazardous for supply and the package consists of at least two or more layers, then the inner layers must be labelled to CLP rules and the outer shall be labelled only to transport rules. This is clear.
Art 33(1) then goes on to permit, but NOT require, the display on the outer level of packaging of the CLP labelling; though subject to some derogations so that CLP pictogram(s) do not need to be displayed on the CLP label if the hazard is represented by a transport label(s).
But what if the goods are environmentally hazardous/marine pollutants? These do not get a label, but a supplementary mark under the transport rules.
What is a CLP label?
While CLP does not define “label”, in the context of CLP a label can be considered an area reserved for the purpose of containing all the information prescribed by CLP, ie text and if applicable, a pictogram.
The advice has been that for the purposes of CLP a transport mark, indicating that the contents inside the package are dangerous goods for transport can be considered as a transport “label”.
ECHA guidance on CLP labelling, at Chapter 5.4 says: “The transport labelling provisions are set out in the United Nations Model Regulations on the Transport of Dangerous Goods (the so-called ‘Orange Book’) and are implemented in the EU through international modal agreements and Directive 2008/68/EC for the inland transport of dangerous goods (road and rail).
“Transport labelling as referred to in CLP Article 33 includes all labels and marks required by eg Directive 2008/68/EC, eg the mark for environmentally hazardous substances, elevated temperature marks or limited/exempted quantities marks.”
the reference to elevated temperature mark should be ignored; as goods with this hazard are only regulated for transport, and not for supply.
It would have been helpful if Article 33 had been drafted to refer to “transport labels and/or marks that identify the presence of a dangerous good, or type of transport hazard, within the package”. Though this was brought, by the author of this special report, to the attention of the UK negotiators on the CLP it was sadly not actioned, thus requiring guidance to “clarify” legal wording.
An outer layer could be only labelled for transport as Illustration 4, but the chemical therein may also have longer-term health hazards and bear the pictogram GHS 08, as well as the toxic pictogram GHS 06 (the hazard indicated on the outside by the Class 6.1 label).
Article 31(1) does not adequately reflect the issues when a supplier has CLP labelled inner packagings in an outerpackage, with the outerpackage layer labelled and/or marked for transport, but who then chooses to overpackage several of these individually transportable packages in an overpack.
For transport, the overpack must repeat the transport labels and/or marks (unless the overpackage layer is transparent). However, under CLP Article 33(1) it would arguably require the CLP label on the outerpackage. This as per CLP Art 33(1) transport outerpackage is in fact an intermediate package under CLP.
Six one-litre CLP-labelled tins per transport outer package, four transport outer packages per overpackage.
Illustration 5 — Overpackage example
Goods not dangerous for transport but hazardous per CLP
Article 33(2) makes it quite clear that where the outer packaging layer of a combination package does not bear a transport label or mark, because the goods therein are not dangerous for transport (eg they are merely skin or eye irritants), then full CLP labelling is required at the receptacle, any intermediate layer and the outer layer.
Although CLP labelling of any intermediate or outer layer is of course not required to be CLP-labelled, it is advisable that the CLP labelling in the package layer below is visible. For example, where the outer layer is a shrink wrap holding aerosol cans onto a tray.
Single (and composite) package issues
Article 33(3) deals with the case of where both CLP and transport of dangerous goods labelling is required. It should be noted of course that EQ and LQ packages cannot be single packages; although see earlier regarding the shipment of inners from packages under ADTP Derogation 4.
CLP does not define the term "single package”. However, transport rules do provide a distinction between a “single” package, eg a drum or jerrycan, and a “composite package”. UNRTDG defines a composite packaging as:
“…a packaging consisting of an outer packaging and an inner receptacle so constructed that the inner receptacle and the outer packaging form an integral packaging. Once assembled it remained thereafter an integrated single units; it is filled, stored, transported and acted as such…”
However, it is clear, at least to this author, that the CLP Regulations’ use of “single package" should be seen as referring to both single packages as well as the composite packaging as defined in the transport regulations.
For CLP purposes, a composite package should not be considered a combination package. Otherwise, those supplying hazardous chemicals in composite packages, such as the “bag in the box” type, would be required to the label the inner as well as the outer of the composite packaging. As yet the ECHA guidance makes no mention of this composite packaging issue.
For single packages CLP reiterates the requirement that the packages shall be labelled according to the applicable transport of dangerous goods provisions, without any derogation from those requirements. Additionally the CLP labelling information must be provided except that any CLP pictogram that relates to the same hazards as indicated by a transport label or mark need not (but can do) appear in the CLP labelling area. This approach can give results such as in Illustration 6.
Illustration 6 — Single package showing use of derogations from display of CLP pictograms
CLP defines “package” as the complete product of the packing operation, consisting of the packaging and its contents.
This is exactly the same definition as used for transport (eg in the UNRTDG).
In CLP no mention of “tanks” is made, though these are defined, distinct to packages, in the transport modes.
Recently the question has been raised with the European Commission as to the applicability of CLP to the transport of bulk chemicals; ie in “IBCs, portable tanks and trailers”.
In respect of IBCs, these are clearly “packages” under the transport rules. Thus it can be expected, but not guaranteed, that these will, no doubt, be considered packages under CLP.
However the issue of applicability of CLP to “portable tanks” (the wording that presumably also covers ADR tank containers and swap body tanks — there being a subtle difference between these to portable tanks in the transport provisions) and to “trailers” (by which is presumably meant carriage in tank vehicles, vehicles with demountable tanks, and true bulk vehicles as defined by ADR).
This issue was discussed many years ago at the HSE Standing Committee on Hazard Information and Packaging (SCHIP), and the need for appropriate labelling to warn all the staff at the recipient location of the user was considered. It was noted that tanks and other process vessels within a factory were subject to general duty of care to appropriately identify the presence of dangerous goods (eg via the Chemical Agents Directive 98/24/EC and the Council Directive 92/58/EEC on the minimum requirements for the provision of safety and/or health signs at work), so agreement that deliveries in tankers, that were unloaded into the recipients tanks, did not need supply labelling; being analogous with deliveries via pipeline.
However, SCHIP considered that there was a case to be made for requiring the supply labelling on a portable tank or tank container that is delivered to, and left on a site of, the recipient, ie treating it as effectively a very large package. Recipient staff need to be provided with supply labelling information in case of leakage or spillage or when subsequently drawing off the chemical for use. Accordingly, the GB CHIP Regulations define a package in regulation 2 as follows.
“(2) In these Regulations package means —
Subject to paragraph (3), the package in which a dangerous substance, dangerous preparation or preparation specified in regulation 11(3) is supplied, including the receptacle containing the dangerous substance or preparation in question; or
A pallet of other device which enables more than one receptacle to be handled as a complete unit, but does not include a container used to transport the dangerous substance or preparation unless that container is retained by the person to whom the dangerous substance or preparation is supplied for the purpose of storing that dangerous substance or preparation, and related expressions shall be construed accordingly.”
This labelling of tank containers in compliance with CHIP has always come somewhat as a surprise to companies, especially those importing raw materials from outside the EU for use in their processes.
The labelling of packages that have been transported from outside the EU, to come into compliance with CLP, if necessary, for storage and definitively before use is already clearly required under CLP. This through the definition of “supplier” and “placing on the market”; as the later includes the wording "import shall be deemed to be placing on the market”.
It will be interesting to see whether the European Commission provides an interpretation or legal opinion similar to that of the CHIP regulations, or comes up with some other interpretation/legal opinion.
The start of paragraph (2) also means that where a supplier puts, for example, 4 boxes of hazardous chemicals on a pallet, but in such a way that none of the individual box CLP labels are visible from the outside of the pallet load would need to apply a CLP label to the outside of the pallet load. This is analogous to the transport overpackage situation (see earlier) but is arguably already covered by CLP Article 31(1) requirement for the label to be positioned such that it “shall be readable horizontally when the package is set down normally”.
Retail sales issue
When goods have been sold to a person who is not at work, the road transport rules (ADR) generally will not apply, though there are some restrictions. These restrictions are to stop the carriage of privately purchased flammable liquids in > 60l receptacles and > 240l per transport unit, and carriage in IBCs and large packages or tanks from being exempted from ADR.
However, CLP applies to the interface between the retailer (a “distributor” as defined by CLP). Therefore as written CLP arguably requires that when the retailer places a product, needing CLP labelling, into a further packaging (such as a bag provided by the retailer) prior to handing it to the customer, the retailer is duty bound under CLP to label that further packaging (unless it is clear and the CLP label within be seen).
Labelling of the shopping bag provided by a retailer was considered by SCHIP “inappropriate”, given that the shopper has presumably already seen the cautionary label on the product while on the shelves, and concluded that they do in fact wish to purchase it. Accordingly in CHIP, this issue is taken into account in regulation 2, sub-paragraph (3), where it says:
“(3) In the case of supply by way of retail sale, a package does not include any paper or plastic bag or any other form of outer wrapping in which the package is placed when it is presented to the purchaser.”
This British regulatory exemption does NOT apply when shopping over the Internet and where delivery is involved. If a customer orders a product that is dangerous only under CLP and not under transport rules, eg a dishwasher tablet from the supermarket, or a sensitising adhesive from a craft supplies company, how would the handling staff, the driver, and the recipient (initially) going to be aware that any leakage might be of a hazardous substance without a CLP warning label being visible?
However, from a number of test purchases it is clear that a number of those who offer dangerous preparations (and thus are still currently subject to CHIP, rather than CLP), are unaware of their obligations. They are also often unaware of the restrictions on sending dangerous preparations via Royal Mail postal services.
This is an issue that CLP has perhaps left to “pragmatic enforcement”.
Because of the closer ties between supply and transport classification and hazard identification a few oddities are beginning to become apparent, as illustrated in the following examples.
Aqueous ethanol solution
Aqueous ethanol solutions of 20% volume/volume are classifiable under CLP as flammable liquids as category 3 for CLP purposes, based on the flashpoint being below 60°C, and because the solution will support combustion under the combustibility test.
However, under transport rules such solutions are classifiable initially under UN 1170 packing groups 3 level, but via the application of special provision 144 are then exempted from being considered dangerous goods for transport.
This would mean that drums of aqueous ethanol solution (20% v/v) could now be offered for transport solely with CLP labelling displaying the distinctive GHS 02 flammable pictogram, as shown below in Illustration 7. (Previously under CHIP there would have been no flame (F) symbol, just the word “Flammable”).
Most enforcement officers seeing a load of CLP-labelled drums on a lorry would expect to see the lorry displaying ADR orange plates at the front and rear, the presence of a dangerous goods transport document, and an ADR “licensed” driver. They might need to be persuaded to recognise that these goods are not in fact dangerous goods for transport.
This scenario is probably behind the decision of three out of four suppliers, whose safety data sheets (SDSs) for this solution were recently examined by the author of this article, to not take advantage of SP144 and to declare the goods in section 14 of their SDS as goods of UN 1170. Also, presumably, to apply the Class 3 transport label and mark with the UN 1170 and PSN. None of these however chose to put a comment to that effect in section 14.
The fourth supplier did take advantage of SP144, and to show in section 14 of the SDSs that the goods were not regulated for transport. However, this supplier also failed to give any explanation as to why he had taken this course of action, and to explain the contrast between the CLP labelling described in section 2 of the SDSs and the decision in section 14.
Illustration 7 — CLP labelled 20% ethanol solution drum
This oddity was created, it is believed, by the decision of the transport modes several years ago to classify this substance under UN 1593, based on acute toxicity data that meant it just fell into Class 6.1. Then the UN subsequently aligned their Class 6.1 criteria with that of the GHS acute toxicity categories 1, 2, and 3 (later also adopted by CLP), meaning that some previously Class 6.1 materials were no longer classifiable as Class 6.1. However, the UN experts did not undertake a systematic review of listed substance entries.
Under the 67/548/EEC Dangerous Substances Directive and CLP, however, the material does not get an EU harmonised classification indicating any acute toxicity concerns. This led to a situation whereby drums of dichloromethane were seen with apparently conflicting labelling, as shown in Illustration 8.
Illustration 8 — Dichloromethane drum labelling
The HSE and DfT view is that it is up to industry to propose the necessary changes to the GHS (and hence in time to CLP) and to the UN Experts for transport for resolution of such oddities.
The problems with the wording of CLP in relation to the supply/transport for interface are, in the view of this author, a result of CLP being drafted by those who have no involvement with the practicalities of “labelling” and packaging, and who did not take advice from those with hands-on experience of labelling issues.
This is an issue that was avoided in the development of CHIP by closer liaison with those in industry with practical experience in hazard labelling and marking issues.
It is to be hoped that any European Commission “interpretations” or legal opinions and any changes to the ECHA guidance on CLP labelling will clarify matters.