Products Liability Law Daily Adequacy of paint remover’s warning label preclude summary judgment favoring manufacturer
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Wednesday, February 5, 2020

Adequacy of paint remover’s warning label preclude summary judgment favoring manufacturer

By Leah S. Poniatowski, J.D.

Issues of fact remained as to whether Rust-Oleum’s label reflected the acute danger of methylene chloride inhalation.

A multi-count lawsuit premised on both federal and state law following the death of a consumer from inhalation of methylene chloride—a chemical in a Rust-Oleum paint remover—survived the manufacturer’s motion for summary judgment, a federal district court in Pennsylvania ruled, concluding that there were material facts in dispute as to whether the warning label was adequate under the Federal Harmful Substances Act (Atkins v. Rust-Oleum Corp., February 3, 2020, Horan, M.).

In February 2018, a 31-year-old consumer prepared to use Rust-Oleum Aircraft Remover paint stripper on parts of his BMX bike. The remover contained methanol and methylene chloride and displayed several warnings regarding use of the product with adequate ventilation. The consumer brought all the materials into a closed bathroom and did not open the window or have access to an exhaust fan. The next morning, his mother found him slumped over the bathtub. The emergency responders determined that the consumer showed "obvious signs of death," and the subsequent autopsy and toxicology report concluded that the consumer had died from inhalation of methylene chloride vapors.

According to an expert report, the vapors reached a lethal level within eight to 10 minutes. The decedent’s mother filed a lawsuit against Rust-Oleum for failure to adequately warn consumers of the hazards of using the paint remover, specifically alleging negligence per se for violating the Federal Harmful Substances Act (FHSA), and state law-based claims for negligence, strict liability, and wrongful death. Rust-Oleum moved for summary judgment on the basis that the failure-to-warn claim was preempted because its label complied with the FHSA requirements.

Federal standard. Congress enacted the FHSA in order to "provide nationally uniform requirements for adequate cautionary labeling of packages of hazardous substances intended or suitable for household use." Although state-law claims based on inadequate warnings are preempted if the label meets the FHSA requirements, the claims can proceed if the label is out of compliance. Under the federal statute, a label must consciously state several warnings, including an affirmative statement of the principal hazard or hazards and precautionary measures describing the action to be followed or avoided. Moreover, the Consumer Product Safety Commission (CPSC) administers the FHSA and has the authority to issue regulations with respect to labeling.

Methylene chloride. As part of its authority, CPSC can declare that a substance is hazardous, and has used that power to declare methanol a hazardous substance. However, the agency had not issued any regulation concerning methylene chloride. Instead, the Commission had issued guidance publications in 1987 and 1992. The 1987 Statement of Interpretation and Enforcement Policy provided example FHSA-compliant label language for products containing methylene chloride. The 1992 publication of regulations related to another CPSC-administered statute provided a comment in which the agency stated that the "vapor harmful" label is sufficient for chronic and acute inhalation toxicity.

The decedent’s mother argued that the 1992 publication addressed the chronic, carcinogenic hazard presented by methylene chloride exposure. Further, in 2016, CPSC staff said that the 1987 Statement did not address the chemical’s acute hazards and recommended cautionary language to the Halogenated Solvents Industry Alliance (HSIA) beyond "vapor harmful," in response to the HSIA’s petition to the Commission. The mother asserted that Rust-Oleum was aware of the petition, in addition to the 2012 study conducted by the Centers for Disease Control and a 2015 article from the Center for Public Integrity that concerned the several deaths resulting from inhalation of methylene chloride vapors. Additionally, the mother contended that the manufacturer had knowledge that the chemical was banned form consumer products in 2009 and that in 2017 the EPA published a notice that a similar ban was under consideration. Thus, the court determined that the mother raised fact issues as to whether compliance with the 1987 Statement demonstrated compliance with the FHSA.

Label’s language. The decedent’s mother also asserted that Rust-Oleum violated the FHSA by negating and diluting the mandated warning language. Specifically, she argued that following the "vapor harmful" language, the label clarified that the product "causes eye burns" and was a "skin irritant," which hid the inhalation danger by allowing a consumer to believe that the vapor is primarily dangerous to the eyes and skin. The mother also alleged that the CPSC warning language was placed in a "lengthy and jumbled patchwork" on the can, which weakened the warning’s effectiveness. The court observed that both sides proffered their own experts’ opinions as to whether the label complied with the FHSA, thus raising a dispute of material fact. Accordingly, Rust-Oleum’s motion for summary judgment was denied.

The case is No. 18-1349.

Attorneys: Martin K. Brigham (Raynes Lawn Hehmeyer) for Lauren Atkins. Matthew M. Hoffman (Tucker Arensberg, PC) for Rust-Oleum Corp.

Companies: Rust-Oleum Corp

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