In Namundi v. Rocky’s Ace Hardware, LLC, 81 Mass. App. Ct. 665 (Apr. 30, 2012), plaintiffs were severely burned in a flash fire that erupted when vapors from a can of paint stripper were ignited by the hot water heater in plaintiffs’ basement. The label had a warning printed on the bottom that had the words “DANGER!” and “POISON!” in large capital letters, illustrated with a skull and crossbones. Following those words, the label stated in still-capitalized, but somewhat smaller, letters, “EXTREMELY FLAMMABLE. MAY BE FATAL OR CAUSE BLINDNESS IF SWALLOWED. VAPOR HARMFUL. SKIN AND EYE IRRITANT. Read other cautions and HEALTH HAZARD INFORMATION on back panel.”
Plaintiffs sued the retailer and manufacturer of the paint stripper in Massachusetts Superior Court alleging the stripper was improperly labeled, defectively designed and unreasonably dangerous. The trial court directed a verdict for defendant on the failure-to-warn claim, ruling that the labeling complied with the Federal Hazardous Substances Act (“FHSA”), 15 U.S.C. §§ 1261 et. seq. (2006), and the jury found defendants not liable on the design defect claim. After denial of their motion for a new trial, plaintiffs appealed, arguing that the label did not comply with the FHSA and its regulations. Plaintiffs asserted that: (1) by capitalizing the word “poison” and making it larger than the word “flammable,” defendant improperly used “poison” as a “signal word” causing plaintiffs to discount the balance of the warning as simply an explanation of the product’s poisonous qualities; and (2) a specific warning about the flammability of the vapor, as distinguished from the stripper itself, should have been placed on the label in the principal display panel.
Making extensive reference to specific regulations under the FHSA, the Massachusetts Appeals Court rejected both of plaintiffs’ arguments. First, the court held that although the regulations are unclear as to whether “poison” may be used as a signal word, it was undisputed that the regulations required the word to appear on the label in capital letters and there was no prohibition against capitalizing the word, whether classified as a signal word or not. The court also rejected plaintiffs’ argument that, pursuant to a regulation requiring all label statements of principal hazard to appear in the same size and style, the word “poison” should have been the same size as “flammable” so that neither hazard would be emphasized to the detriment of the other. The court found the regulation cited by plaintiffs inapplicable because “poison” was not a “principal hazard” under the regulatory scheme; rather, it fell under the separate category of “other cautionary material,” which includes all labeling statements other than “signal words” or “statements of principal hazard(s).”
Turning to plaintiffs’ second argument, the court held the FHSA did not require specific warnings concerning vapor flammability to appear on the primary display panel, citing and following a decision of the United States Court of Appeals for the First Circuit in a similar case. In that case, the court held that a flammable cleaning agent’s labeling was sufficient where the container’s label stated that the cleaner was “EXTREMELY FLAMMABLE,” and provided additional warnings concerning the build-up of vapors on a different display panel. Here, the label explicitly stated in capital letters in the principal display panel that the stripper was “EXTREMELY FLAMMABLE” and further directed the reader to the back panel where vapor flammability was exhaustively explained. The fact that the stripper was flammable in different material states, or that some states are more flammable than others, did not render each physical state a distinct “principal hazard” that must be warned against in the principal display panel. Such a requirement is not found in the current regulatory scheme, and to the extent the Consumer Product Safety Commission determines that amplified or more specific warnings should be required, the FHSA provides the Commission with authority to so require.