Consumer product exemption and products that require licensing

Pennsylvania restricts the use of a product that is packaged for distribution and use by the general public by requiring users within the State to obtain a license. This product requires a material safety data sheet under OSHA, and thus may be subject to the reporting requirements of EPCRA Sections 311 and 312.

Does this product meet the consumer product exemption under the definition of hazardous chemical, which is "...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" (40 CFR section 370.66)?

Any substance that is in the same form and concentration as a product packaged for distribution and use by the general public is exempt from the definition of hazardous chemical and is not reportable under Sections 311 and 312.  This exception to the definition of hazardous chemical under EPCRA has been referred to as the "consumer product exemption."  If a license is required for use of a product, it may not be considered a consumer product.  In this case, 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, then it is considered a consumer product.  If some private citizens cannot obtain the license, then the use of the product is limited to facilities that can obtain the license; thus the product does not meet the consumer product exemption.  If the restricted product is present at a facility above the applicable reporting threshold, then it is reportable under Sections 311 and 312.  Reporting on this product may vary from State to State depending on the requirements and limitations in obtaining a license for use.