A question of label compliance was at the heart of a complaint against a manufacturer. A team of Harris Beach attorneys won a unanimous decision in New York’s Appellate Division, Fourth Department which affirmed a trial court’s order granting the dismissal of plaintiff’s complaint in a toxic exposure action filed in the Supreme Court of New York, Steuben County. See Hudson v. Sunnyside Corp., __A.D. __ , 2017 WL 5181653 (4th Dep’t 2017).
Plaintiff alleged that he had sustained severe personal injuries from his exposure to toxic fumes while using defendant’s muriatic acid product to clean an indoor swimming pool. In his complaint, plaintiff asserted several causes of action including claims in strict products liability for design defect, manufacturing defect and failure to warn; and for negligence alleging that defendant’s product failed to provide adequate warnings to the end users. Specifically, plaintiff alleged that defendant’s product failed to provide 1) an affirmative statement of the principal hazard associated with the use of the product, and 2) adequate precautionary measures regarding actions to be followed or avoided when using the product, making the product a “misbranded hazardous substance” in violation of the Federal Hazardous Substances Act (“FHSA”). See 15 U.S.C. § 1261(p). Plaintiff’s complaint also asserted a cause of action for breach of express and implied warranties which was subsequently withdrawn.
Under the regulatory scheme established by the FHSA, a hazardous substance is defined as any substance or mixture of substances which is toxic, corrosive, flammable or combustible, an irritant, a strong sensitizer, or generates pressure through decomposition, heat, or other means, and may cause substantial personal injury or illness from any customary or reasonably foreseeable handling or use. 15 U.S.C.A. § 1261(f)(1)(A). The FHSA requires that the label on any hazardous substance must contain certain, specifically delineated information including: “(C) the signal word "DANGER" on substances which are extremely flammable, corrosive, or highly toxic; (D) the signal word such as "WARNING" or "CAUTION" on all other hazardous substances; (E) an affirmative statement of the principal hazard or hazards, such as "Flammable", "Combustible", "Vapor Harmful", "Causes Burns", "Absorbed Through Skin", or similar wording descriptive of the hazard; [and] (F) precautionary measures describing the action to be followed or avoided….” 15 U.S.C. §1261(p)(1). The regulations regarding the FHSA promulgated by the Consumer Product Safety Commission also contain specific requirements relating to the prominence, placement and conspicuousness of the required information on the label. See 16 C.F.R. § 1500.121.
In this matter, the primary and secondary labels on the defendant’s muriatic acid product contained the following language: “DANGER”; “POISON”; and “VAPOR HARMFUL.” Furthermore, the label provided the following precautionary measures among others: “Never use acid in a confined area”; “use only when ventilation is equivalent to outdoor conditions”; and “start with a high dilution (such as one part acid to 25 parts water).” The product’s label also complied with the requirements relating to prominence, placement and conspicuousness of the cautionary statements.
It is well-settled that if a hazardous product’s label complies with the requirements of the FHSA and its enabling regulations, any attempt to impose additional or different labeling requirements is preempted under the Act. See, e.g., Moss v. Parks Corp., 985 F.2d 736, 741 (4th Cir. 1993). Thus with respect to hazardous substances, the only viable failure to warn claim is that the product was “misbranded” under the FHSA and that the label was not in compliance with its specific requirements. In this matter at the trial court level, plaintiff moved for partial summary judgment arguing that the label did not comply with the FHSA as a matter of law and thus was a misbranded product. Defendant cross-moved to dismiss plaintiff’s complaint for failing to state a cause of action as the label was in full compliance with the Act and thus plaintiff’s claims seeking to impose additional or alternate language were preempted. The trial judge agreed and dismissed plaintiff’s claims holding that the label contained sufficient and adequate warnings which complied with the requirements of the FSHA. The judge noted that while a label of hazardous product may utilize a “stronger or more precise warning” such additional language is not required under the rules. The trial court found that plaintiff’s argument that the label should have provided the warnings contained in the product’s material safety data sheet (“MSDS”) was simply another attempt to impose additional language not required under the regulations as the language and content of a MSDS are regulated by the Occupational Safety & Health Administration, a wholly separate and distinct regulatory scheme.
Plaintiff appealed relying on arguments similar to those raised at the trial court that the label failed to warn of the principal hazards of the product, did not satisfy the minimum requirements of the FHSA and as such the product was misbranded. Plaintiff argued again that the phrase “Vapor Harmful” was insufficient, vague and misleading, that the product’s MSDS contained more specific and detailed warnings. Plaintiff also argued that the trial court erred in applying the standard of review on a motion to dismiss for failure to state a cause of action because significant factual issues remained in dispute requiring a denial. Defendant responded that its label was in full compliance with FHSA and that plaintiff failed to come forth with any evidence that the product was misbranded.
In a unanimous decision, the Appellate Division, Fourth Department affirmed finding that the label was in compliance with the FHSA in providing sufficient statements of the principal hazard and of the precautionary measures to be followed or avoided: “[w]e conclude that the statement “VAPOR HARMFUL” which is used as an example of an affirmative statement of the principal hazard, is sufficient to comply with the statute….” Hudson, 2017 WL 5181653 at 1 (citations omitted). With respect to plaintiff’s assertion that the label’s statement of precautionary measures was insufficient and inadequate, the Fourth Department found the label’s language to be adequate and in compliance with the statute:
Contrary to plaintiff’s contention, the statute does not require a manufacturer of a hazardous substance to list on the product label each and every conceivable precautionary measure … and ‘[d]isagreement over the adequacy or sufficiency of the information provided on the label does not necessarily raise issues of fact as to compliance. What matters is whether the label satisfies the requirements of the FHSA, not whether a label defines every phrase or addresses every potential hazard.’
Hudson, 2017 WL 5181653 at 2 (citations omitted) (emphasis added).
Additionally, the Fourth Department rejected plaintiff’s argument that, on a motion to dismiss, the claim of misbranding raises a question of fact for a jury’s determination, finding that “defendant established as a matter of law that the label on the bottle of muriatic acid complied with the FHSA” and thus plaintiff’s claims of failure to warn and inadequate were properly dismissed. Id.
This case is a significant victory in New York for the manufacturers of consumer products which are considered hazardous substances under the FHSA and highlights the importance of ensuring compliance with labeling requirements of the federal regulatory scheme in order to defend failure to warn claims, which generally involve the determination of issues of fact under state law. Here, plaintiff was faced with a fully compliant label and attempted to stave off a dismissal by claiming that the label could or should have contained more information in its statement of the principal hazards and precautionary measures. Both the trial court and appellate court disagreed and found the label in full compliance as a matter of law under the express provisions of the federal regulatory scheme and dismissed plaintiff’s claims, all of which were founded on the misbranding of a hazardous substance and failing to warn. Both courts were clear in their decisions that plaintiffs cannot seek to impose more stringent requirements than what is required under the FHSA. When faced with such claims involving a hazardous consumer product, it is imperative to evaluate the compliance of the label with the FHSA and the bases for plaintiff’s claims and to pursue a dismissal of such failure to warn or inadequate warning claims.