Protecting the P&C Industry’s Intellectual Assets
…” the disclosure of alternative information
including “the properties and effects of the
chemical; measures for controlling exposure
to the chemical; methods of monitoring and
analyzing worker exposures to the chemical; and methods of diagnosing and treating
harmful exposures to the chemical” would
not be satisfactory for the purposes of the
occupational health need.
The written request must also include
“a description of procedures to be used
to maintain the confidentiality of the disclosed information” and “agree in a written
confidentiality agreement that the health
professional, employee, or designated representative, will not use the trade secret information for any purpose other than the
health need(s) asserted and agree not to
release the information under any circumstance other to” OSHA. We have previously discussed that disclosure of a trade secret
to any federal government agency creates
more opportunities of additional disclosures that can result in you losing your
trade secret, so this is a situation you want
to avoid. So, when can the “health professional, employee, or designated representative” make a disclosure of your trade secret
to OSHA. We have not yet found a definition of what the criteria is for deciding there
is a need to disclose to OSHA, so we are
assuming that there is a wide latitude. But,
because the regulations state the receiver of
the trade secret “shall” inform the person
who conveyed the trade secret (you) prior
to or at the same time as the disclosure to
OSHA. Additionally, you can stipulate in
the confidentiality agreement that the receiver can disclose the information to other
parties on terms of your choosing. We opt
for no disclosure.
Paragraph (i)( 4) of section 1910.1200
addresses the confidentially agreement. The
agreement may limit the information’s use to
the “health purposes indicated in the writ-
ten statement of need” and “provide for the
appropriate legal remedies in the event of
breach of the agreement, including a reason-
able pre-estimate of the likely damages,” but
“may not include requirements for the post-
ing of a penalty bond.” These requirements
of this sub-section don’t prevent the “parties
from pursuing non-contractual remedies to
the extent permitted by law.” At this point,
you should see that long before you get one
of these requests, you will want to have your
legal team calculate potential damages, and
draft the default provisions of the confi-
dentiality agreement accordingly, as well as
contemplate strategies in advance for non-
contractual solutions if things get heated.
You do have some room to argue about
how and if the trade secret is disclosed based
on these standards of a non-crisis situation.
A denial to the request must be in writing,
and “provided” to the requester within
“ 30 days of the request.” Of course, the
requester has an appeal process to the de-
nial. First, the request and denial must be
submitted to OSHA for review. OSHA will
evaluate whether the denier has supported
the claim that the information is a trade se-
cret, and that the requester supported both
the claim that there is a medical or occupa-
tional health need for the information and
demonstrated adequate means to protect
the confidentially. If OSHA determines
that the specific chemical identity or per-
centage composition is not a trade secret,
then the “chemical manufacturer, importer,
or employer will be subject to citation” by
OSHA. Alternatively, if OSHA determines
the information is a trade secret, but that
the requester has executed a written con-
fidentiality agreement, shown “adequate
means to protect the confidentiality of the
information, and shown a legitimate need
for the information, you are again subject
to an OSHA citation.
Kicking the ball into your court, if the
trade secret holder demonstrates the ex-
ecution of the confidentiality agreement
“would not provide sufficient protection
against the potential harm from the un-
authorized disclosure of a trade secret, the
Assistant Secretary may issue such orders
or impose such additional limitations or
conditions upon the disclosure of the re-
quested chemical information as may be
appropriate to assure that the occupational
health services are provided without an un-
due risk of harm to the” trade secret holder.
If you get a citation from OSHA for
not releasing your trade secret infor-
mation, you may contest it “before the
Occupational Safety and Health Review
Commission in accordance with the Act’s
enforcement scheme and the applicable
Commission rules of procedure.” If you
continue “to withhold the information
during the contest, the Administrative
Law Judge may review the citation and
supporting documentation ‘in camera’ or
issue appropriate orders to protect the
confidentiality of such matters.”
The trump card that OSHA gives it-
self is that you must disclose the trade se-
cret or any other SDS information to the
Assistant Secretary, but “where there is a
trade secret claim, such claim shall be made
no later than at the time the information is
provided to the Assistant Secretary so that
suitable determinations of the trade secret
status can be made and the necessary pro-
tections can be implemented.” Section 664
of USC 29 states “All information … ob-
tained by the Secretary or his representative
… which contains or which might reveal a
trade secret … may be disclosed to other
officers or employees concerned with car-
rying out this Act or when relevant in any
proceedings.” However, the TPTB “shall is-
sue orders as may be appropriate to protect
the confidentiality of such trade secrets.”
Seems ambiguous and the protection of
your trade secrets’ disclosure (whether
appropriate or not) is in the hands of the
Assistant Secretary in the end.
Section 1910.1020 allows an employer
to delete from a medical record “request-
ed by a health professional, employee, or
designated representative any trade secret
data which discloses manufacturing pro-
cesses, or discloses the percentage of a
chemical substance in mixture, as long as
the health professional, employee, or des-
ignated representative is notified that in-
formation has been deleted.” An employer
is also able to withhold a specific chemical
identity, using the pretty much the same/
similar arguments, procedures and paper-
work as described for a SDS in dealing
with requests of trade secret information.
All this means is, at the end of the day,
you can try to protect the identity of your
additive or formulation ranges, but depending upon the disposition of a treating
medical professional and/or OSHA, and
the skills of your legal and regulatory experts, it is a dice roll as to whether you can
maintain secrecy in light of these regulations in the U.S. The rest of the world’s
various national/jurisdiction recognition
and handling of SDS trade secrets is a different ball of wax. CW
