The first hurdle in a failure-to-warn case is the pre-emption doctrine. The FHSA pre-empts any state causes of action seeking to impose a different or more elaborate labeling requirement from that required by the Act. Milanese v. Rust-Oleum, 44 F.3d 104 (2nd Cir. 2001). Defendants often argue that where the product is covered by the FHSA, no lawsuit can be brought in a failure-to-warn case. This is not true. The FHSA does not pre-empt all such claims; complaints that allege non-compliance with the Act are permitted and usually present a question of fact. Thus, the very first thing a plaintiff’s lawyer must do is to decide whether or not the label that came with the substance – if it has not already disappeared – complies with the Act. If the label does comply, any failure-to-warn case is pre-empted. If the label does not comply (which is often the case), then the lawyer can bring a failure-to-warn case.

To determine whether or not the label is adequate, the lawyer must decide if it conspicuously states the “principal hazards” and “precautionary methods” the consumer must take to avoid the hazards. For example, in Milanese, supra, the plaintiff, while using a primer and paint, was burned when the primer vapors ignited and a flash fire erupted. The primer label contained the following warning: “Danger, extremely flammable.” The paint can label said: “Danger. Extremely flammable liquid and vapor. Vapors may cause flash fire …” Upon first reading, these might appear as sufficient warnings because the injury took place when the vapors ignited and a flash fire erupted; however, the plaintiff cleverly claimed that the primer can was misbranded because the principal hazard associated with the primer, that “vapor may cause flash fire,” did not appear on the primer label although it did appear on the paint can label.

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