Definition of the Term "Retail Sale"

This responds to your letter of July 19, 2006 regarding interpretation of the term "retail sale" as it applies to sales of consumer commodities shipped in accordance w the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180).

According to your letter, Transportation Development Group (TDG) has a client who manufactures and distributes fragrances and flavorings. Most items are sold to other businesses that repackage them for sale to a consumer. Your client also has a manufacturer-direct model where a consumer can log into their website and buy the same product in the same configuration. For example: TDG sells product ABC, a PG II flammable liquid, as a perfumery product and packages it in a 5 L metal can a fiberboard box. The package meets all of the requirements for consumer commodity (i.e., up to 5 L for PG II perfume [SP149]) and not over 30 kg gross weight. Packages are marked as an ORM-D and shipped overnight by UPS (marked ORM-D Air) for delivery to a person who ordered it on the internet.

Q1. Could TDG mark and label all of its shipments of product "ABC" as a Consumer Commodity, regardless of the nature of an individual shipment because it's theoretically possible that a "consumer" would want to purchase a gallon size metal can of perfume?

A1. A consumer commodity is defined as a material that is both packaged and distributed in a form intended or suitable for sale through retail sales agencies or instrumentalities for consumption by individuals for purposes of personal care or household use. Even though a material may not be intended for retail consumption, it may be suitable for such usage and, therefore, may meet the definition of consumer commodity. Such products may include fragrances and flavorings. Therefore, if the fragrances and flavorings described in your letter qualify for reclassification and are packaged accordingly, they may be described as a "Consumer commodity", and reclassed as ORM-D material, even if not intended for personal or household use.

Packages of ORM-D material must be marked "Consumer Commodity, ORM-D" in accordance with § 172.316. Shipments of ORM-D materials are not subject to the shipping paper requirements of Subpart C of Part 172 of the HMR unless the material meets the definition of a hazardous substance, hazardous waste, or marine pollutant, or unless offered for transportation by air. Section 173.156 provides additional exceptions for shipments of ORM-D materials.

Q2. Is sale from a manufacturer over the Internet direct to a user considered "retail" sale, or is there some obligation on the part of the seller/shipper to determine the nature of the person buying the product before allowing the product to be reclassed as a "consumer commodity"?

A2. In order for your products to be renamed "Consumer commodity" and reclassed as ORM-D, each product must meet the following requirements: (1) the definition for consumer commodity in § 171.8; (2) the material is authorized in packaging exceptions in Column (8A) of the § 172.101 Hazardous Materials Table; (3) the referenced packaging exception allows an exception for shipment as an ORM-D; and (4) the material is properly prepared for shipment in accordance with the consumer commodity provisions.