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Methylene Chloride As a Product Liability Claim And Federal Preemption


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12/25/2013
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Here is the interesting part of this opinion as it relates to FHSA, Section 1261 et seq., Title 15, U.S.Code:

“The parties do not dispute that methylene chloride is a "hazardous substance" as defined in Section 1261(f), Title 15, U.S.Code. Therefore, the cautionary language appellant placed on the container of Marine-Strip was subject to the labeling requirements of Section 1261(p), Title 15, U.S.Code, which provides in relevant part:

"The term `misbranded hazardous substance' means a hazardous substance * * * intended, or packaged in a form suitable, for use in the household or by children, if the packaging or labeling of such substance is in violation of an applicable regulation issued pursuant to section 1472 or 1473 of this title or if such substance, except as otherwise provided by or pursuant to section 1262 of this title, fails to bear a label—

"(1) which states conspicuously * * * (C) the signal word `DANGER' on substances which are extremely flammable, corrosive, or highly toxic; (D) the signal word 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; (F) precautionary measures describing the action to be followed or avoided, except when modified by regulation of the Commission pursuant to section 1262 of this title; (G) instruction, when necessary or appropriate, for first-aid treatment; (H) the word `poison' for any hazardous substance which is defined as `highly toxic' by subsection (h) of this section * * *."

The language of this federal law may help you prove the answer to the question the potential client posed in this post. See Jenkins, Administrator vs James B. Day and Company, 69 Ohio St. 3d 541 (Ohio Supreme Court 1994)

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