'Consumer Commodities'?

Q. We sell products online, some of which are hazardous materials. Can we just ship them all as "consumer commodities"?

A. The fact that you sell the product and a consumer buys it does not answer your question. Under the U.S. Department of Transportation (DOT, www.dot.gov) hazardous materials transportation regulations, the shipper of a material meeting one of the nine regulated hazard class definitions first has to classify the product. See, for example, the definition of Class 3 flammable liquids in 49 CFR 173.120. Once the material is classified (including identification of any subsidiary or secondary hazards), then the shipper must select the proper shipping name and UN number, as well as the Packing Group, for the material.

With this information, then the shipper must determine whether DOT regulations offer even partial relief from regulation in recognition of the relatively small size of the inner package. This relief is not offered for every hazard class. In addition to class, relief usually is predicated on the material having a lower-hazard Packing Group as well as the inner packaging size relative to the Packing Group. See, for example, 49 CFR 173.150 exceptions for flammable liquids, and 173.306 for compressed gases. Some of these "limited quantity" provisions then offer additional relief for materials also meeting the definition of a "consumer commodity" (49 CFR 171.8).

This added relief is granted in recognition that consumer-protection laws keep the most hazardous materials from lawful distribution through retail outlets, for example, industrial-strength drain cleaners sold to plumbers. In addition, per the definition of a consumer commodity, the material must be packaged so it would be lawful to sell "for consumption by individuals for purposes of personal care or household use."

To recap, your obligations are to (a) classify, (b) select the proper shipping description, (c) see if limited quantity relief is offered, (d) determine that your packaging is within the size limits for that relief, (e) see if more relief is offered for consumer commodities meeting that description, (f) decide whether you have a product legal to sell to consumers for their personal use, and (g) assure that it is in the packaging that would be appropriate for retail sale. Once you get beyond the common items you might find in a neighborhood drug or grocery store, like shaving cream, aerosols, medicine and perfumes, you should look very skeptically to see whether you are authorized to ship your products as consumer commodities.

If you do find you could benefit from this relief, you then need to consider the mode of transportation allowed. For the most part, U.S. mail is not an option unless the materials are limited to ground transport. You need to check the Postal Manual. Other air shipments can be made, but only under the more stringent provisions provided for the packaging in 49 CFR 173.27. This section imposes requirements based on temperature, pressure-differential, and vibration requirements unique to air commerce. The air rules also apply shipping paper and related package marking provisions.

Note that the international air regulations adopted by International Civil Aviation Organization (ICAO, www.icao.int) and published by the International Air Transport Association (IATA, www.iata.org) also use the term "consumer commodity," but that the international term does not coincide with the U.S. definition. It is more limited (see ICAO/IATA Special Provision A112 and Packing Instruction 910), and it results in a different classification, labeling and shipping paper requirements than the domestic rules.

So, the long answer to a short question is that the mere sale of a product to consumers does not answer the key regulatory questions. You must go through the sequence of steps outlined above, review the details in each applicable regulatory code and, of course, the person doing this work has to have been properly trained and tested in the details of compliance with all the codes you will be using.

Lawrence Bierlein is a partner with McCarthy, Sweeney & Harkaway, P.C. (www.mshpc.com), in Washington, D.C. His practice is devoted to issues involving transportation of hazardous materials. He can be reached at (202) 775-5560, [email protected].

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