It actually is. "Pepper Spray" is OC Gas, which is an organically produced tear gas. It is advertised as such, purchased as such, used as such, and defined as such.
So the "loophole" is not even that. It is like claiming that when the news said "Stabbed with a knife" and the police said "Fatal injuries from a bladed weapon", that the two reports contradict each other.
The "OC is not tear gas" talking point was created Tuesday morning. Prior to the Second of June, 2020, no such distinction existed. It didn't when I was in the military, and it doesn't now. The White House specifically denied use of CS or CN gas, which are different types of Tear Gas. This was also a lie, as CS cartridges were also found on the scene. But the reason they specified "CS or CN" in the first place is because OC is objectively a Tear Gas. If it wasn't, they would have denied using Tear Gas without specifying the type.