Section 311(e) of the Emergency Planning and Community Right-to-Know Act (EPCRA) lists five exemptions from the EPCRA provisions under Sections 311 and 312, which require that facilities provide copies of material safety data sheets (MSDS) to state and local officials and the local fire department for each hazardous chemical that meets or exceeds a specified threshold quantity at the facility. 

Item 3 on that list states that an exemption from those reporting requirements applies to “any substance to the extent it is used for personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public.” 

The applicability of this exemption—commonly called the consumer product exemption —to regulate commercial and industrial facilities is a regular topic of discussion among compliance managers.  Over the years, the EPA has answered many questions on the precise reach of the exemption.

Here are a few examples that help show how the exemption is applied.

• Chlorine bleach.  The exemption applies to chlorine bleach that is used only in a manner consistent with regulations issued by the Food and Drug Administration (FDA).  The FDA regulates the bleaching of flour with chlorine.  Chlorine, therefore, is exempt from reporting under Sections 311 and 312 only when its use at a facility is consistent with this FDA regulation.
• Automobile batteries.  The exclusion applies to household or consumer products either in use by the general public or in commercial or industrial use when the product has the same form and concentration as those intended for use by the general public.  The term "form" refers to the packaging, rather than the physical state of the substance.  Therefore, car batteries held for sale by the wholesaler are exempt from reporting since the contained hazardous chemicals are in the same form and concentration as batteries sold for use by the general public.
• Household heating fuel.  According to the EPA, the consumer product exemption was written to apply to packaged hazardous materials that are distributed to the general public in a form with which the general public is familiar, mostly small packages.  When transported in bulk by truck and dispensed into storage tanks at a business address, heating oil is not packaged.  Even though it is in the same concentration as the household product, a substance may pose much greater hazards when present in significantly larger quantities.  Hence, heating oil present in the same concentration and used for the same purposes at both a household and a business is exempt only at the household. 
• Licensed product.  If a consumer must acquire a license to use a product, it may or may not be considered a consumer product. The determining factor is accessibility of the product by the general public.  If any private citizen can obtain a license for use of the product, it is considered a consumer product.  If some private citizens cannot obtain the license, then use of the product is limited to facilities that can obtain the license; in other words, the product does not meet the consumer product exemption.  If the restricted product is present at a facility above the applicable reporting threshold, it is reportable under Sections 311 and 312.  Reporting for this product may vary from state to state depending on the state’s requirements and limitations for obtaining a license for use.
• Manufactured household products.  The exclusion applies to household or consumer products either in use by the general public or in commercial or industrial use when the product has the same form and concentration as that intended for use by the public. It also applies to these products when they are in the same form and concentration before distribution to the consumer even when the substance is not intended for use by the general public. The term "form" refers to the packaging, rather than the physical state, of the substance.  However, the manufacturer is exempt from reporting the manufactured product only when the product is in the final consumer form.  The manufacturer is not exempt from reporting the raw or processing materials used to manufacture the product.

Click here for additional information on EPCRA’s consumer product exemption.