Petition for Writ of Certiorari — Busch v. AMREP, Inc.

preme Court, U.S.

(j) PILED

951805 MAY 619%

OFFICE OF THE CLERK

No.

IN THE

Supreme Court cf the United States

OcTOBER TERM, 1995

RICHARD BUSCH, as Administrator of

the Estate of MELISSA BUSCH, Deceased,

Petitioner,

Vv.

AMREP, INC.,

Respondent

Petition for Writ of Certiorari to the

Supreme Court of Illinois

PETITION FOR WRIT OF CERTIORARI

CARL F. SCHROEDER

Counsel of Record

SCHROEDER & HRUBY, LTD.

2100 Manchester Road

Suite 1015

P.O. Box 230

Wheaton, Illinois 60189

(708) 462-1400

Attorneys for Petitioner,

Richard Busch

Midwest Law Printing Co., Chicago 60610, (312) 321-0220

YippP

ena

i

QUESTIONS PRESENTED FOR REVIEW

1. Whether the general provisions of the Federal

Hazardous Substances Act preempt the Plaintiff's

wrongful death action alleging that the

Defendant's product did not contain proper

warnings or adequate instructions for use.

2. Whether a request by the Consumer Product

Safety Commission for voluntary compliance with

the Commission's interpretation of the Federal

Hazardous Substances Act had the force of federal

law which preempted the Plaintiffs wrongful

death product liability action based on Illinois law.

‘i

PARTIES

Richard Busch, husband of Melissa Busch, decedent,

and administrator of her estate.

Amrep, Inc., manufacturer of "Misty," the product

involved.

Graphic Color Corporation, the entity who had

contracted with R. Busch Drum, Inc. for the cleaning

of drums and the entity that directly supplied a

certain quantity of "Misty" to R. Busch Drum, Inc.

The Illinois Supreme Court affirmed the grant of

summary judgment in favor of this defendant on state

law grounds; and, as such, Graphic Color Corporation

will have no interest in the outcome of the Petition.

TABLE OF CONTENTS

Questions Presented for Review

Parties

Table of Contents

Table of Authorities

Opinions of the Courts Below

Jurisdiction

Statute Involved

Statement of the Case

Reasons for Allowing the Writ

Conclusion

INDEX TO APPENDIX

Opinion of the Illinois Supreme Court

Opinion of the Appellate Court of

Illinois, Second District

Order Granting Summary Judgment

Ruling by Judge Lucas

The Federal Hazardous Substances Act

Notice of the Consumer Product Safety

Commission, September 14, 1987

no ~

oa nw &

iv

TABLE OF AUTHORITIES

Cases: Page

Cipollone v. Liggett Group, Inc., 505

U.S.__, 120 L.Ed.2d 407, 112 S.Ct.

SE 4006s bod dunsedSehcedécieces 5

CSX Transportation, Inc. v. Easterwood,

507 U.S. ___, 123 L.Ed.2d 387, 113

SS SSP ee 5, 12, 13

Freightliner Corporation v. Myrik

___ U.S.__, 131 L.Ed.2d 385,

115 S.Ct. 1483 (1995)............. 5, 12, 14, 15

Jenkins v. James B. Day and Company, 69

Ohio St.3d 541, 634 N.E.2d 998 (1994)..... 5,11

Pactra Industries, Inc. v. Consumer Product

Safety Commission, 555 F.2d 677,

RE ge i ap ais Ii a RE 11

Palmer v. Avco Distribution Corp., 82 11.24

211, 412 N.E.2d 959, (1980)............... 9

Springs Mills, Inc. v. Consumer Product

Safety Commission, 434 F Supp. 416,

SE 6dédvcdecsblduccceséeec: 11

Suich v. H & B Printing Machinery, Inc.,

185 [ll_App.3d 863, 541 N.E.2d 1206,

v

Toy Mfrs. of America, Inc. v. Blumenthal,

986 F.2d 615 (2nd Cir: 1992).............. 10

Other Authorities:

Federal Hazardous Substances Act,

15 U.S.C. 1261 & 1262...... 3, 5, 6, 7, 9, 10, 12

Federal Railroad Safety Act of 1970,

GR le eR 12

Food Drug & Cosmetic Act, 21 U.S.C.371.... 10

House Report (Interstate and Foreign

Commerce Committee) No. 89-2166,

October 1, 1966, Cong. Record

We IE Gh dda bidieec co bees cocs 6

National Traffic and Motor Vehicle Safety

Act of 1966, 15 U.S.C. Section 1381 ff....... 14

Notice of the Consumer Product Safety

Commission, Statement of Interpretation

and Enforcement Policy regarding methylene

chloride, 52 F.R. 34698 (1987)............. 8

Notice of the Consumer Product Safety

Commission regarding status of the

proposed rule regarding methylene

chloride, 57 F.R. 52313 (1992)............. 9

ee

vi No.

<A

Notice of the Consumer Product

rule regarding methylene chloride OF THE UNITED STATES OF AMERICA

ee RE 4 October Term, 1995

Notice of the Consumer Product Safety

xen oo rete mer wenn eed

rule methylene ide,

58 F.R. 57271 (1993).................... 4 a4 ~_T .

Notice of the Consumer Product Safety bel —

Commission regarding status of the proposed

rule regarding methylene chloride, AMREP

60 F.R. 24261 (1995).................... 9 meee Respondent.

chloride, 51 FR. 29778 (1986) 7 Rete tinge ay area awe

PETITION FOR WRIT OF CERTIORARI

OPINIONS OF THE COURTS BELOW

Richard Busch, As Administrator of the Estate of

Melissa Busch, Deceased v. Graphic Color

Corporation and Amrep, Inc., 268 Ill_App.3d 763, 644

N.E.2d 839 (1995).

Richard Busch, As Administrator of the Estate of

Melissa Busch, Deceased v. Graphic Color

Corporation and Amrep, Inc., __ [Tll.2d __, _

N.E.2d ___(Ill., February 15, 1996; No. 78662).

2

JURISDICTION

This Petition for Writ of Certiorari is brought from

a Final Judgment and Opinion of the Supreme Court

of the State of Illinois entered on February 15, 1996.

Sora has jurisdiction pursuant to 28 U.S.C. §

a).

STATUTE INVOLVED

The Federal Hazardous Substances Act

(15 U.S.C. 1261 fF.)

(The pertinent portions of this statute are set out in

the Appendix.)

STATEMENT OF THE CASE

This is a wrongful death action brought to

recover damages for the death of Melissa Busch, the

wife of Richard Busch. Richard Busch is the

president of R. Busch Drum, Ins. which is a small

family run business that buys, sells and brokers

industrial drums. R. Busch Drum, Inc. had entered

into a contract with one of its customers for the

cleaning of certain drums and had been supplied with

a product manufactured by the Defendant, Amrep,

Inc., called "Misty Paint Stripper and Decal

Remover." The main ingredient of "Misty" is

methylene chloride which can cause unconsciousness

and death if inhaled in certain quantities. Plaintiff's

Decedent, Melissa, had undertaken to clean these

3

drums with "Misty" and died of acute methylene

chloride intoxication.

Petitioner filed a wrongful death product

liability action in the Circuit Court of DuPage

County, Illinois, alleging that the product, "Misty,"

was defective and unreasonably dangerous under

Illinois law in that it did not contain adequate

instructions for use or adequate warnings of the

danger of inhaling the product. The Defendant,

Amrep, Inc., brought a Motion for Summary

Judgment contending that Petitioner's action was

preempted by the Federal Hazardous Act, 15 U.S.C.

1261 ff. The Defendant based its motion on the fact

that the product contained a warning label that was

substantially similar to a label which t’:e Consumer

Product Safety Commission had attempted to

establish for methylene chloride by regulation. The

proposed regulation was never adopted, and in its

place the Consumer Product Safety Commission

abandoned its attempts to establish the rule and

announced that it would bring individual enforcement

actions against any manufacturer or supplier of

methylene chloride that did not contain the label of

the abandoned regulation.

The Circuit Court of DuPage County granted

the Defendant's Motion for Summary Judgment

specifically finding that the Federal Hazardous

Substances Act preempted the Plaintiff's state law

product liability claim. The Court announced its

ruling as follows:

"T'll grant the motion for summary

judgment. I believe this is beyond any

4

doubt preempted by the Federal

Hazardous Substances Act... . and I

think the law is, in my opinion,

unquestionably clear. I think you're

preempted out of this court. I grant the

motion for summary judgment." (R.C.-

544) (Appendix pp. A-43 & A-44)

The Petitioner perfected an appeal to the

Appellate Court of Illinois, Second Judicial District,

contending that it was error for the Court to find that

the Federal Hazardous Substances Act preempted

Petitioner's action. In an opinion filed January 5,

1995, that Court affirmed the trial court's grant of

summary judgment to the Defendant specifically

holding that the Federal Hazardous Substances Act

preempted the Plaintiff's state product liability action

and specifically holding that the action of the

Consumer Product Safety Commission. regarding

methylene chloride was a "facially valid regulation."

(Appendix p. A-34) Following the denial of a Petition

for Rehearing, Petitioner filed a Petition for Leave to

Appeal to the Supreme Court of the State of Illinois

which was allowed. The Supreme Court of the State

of Illinois affirmed the trial court and the Appellate

Court of Illinois, Second District, in an opinion which

held that the Plaintiff's state product liability action

was preempted by both the general provisions of the

Federal Hazardous Substances Act and the actions of

the Consumer Product Safety Commission in

adopting its Notice of Interpretation and Enforcement

regarding methylene chloride. (Appendix p. A-18)

5

REASONS FOR ALLOWING THE WRIT

THE OPINION OF THE SUPREME COURT OF

THE STATE OF ILLINOIS EXPANDS THE

DOCTRINE OF FEDERAL PREEMPTION TO

EXTINGUISH STATE LAW WHERE NO

CONFLICT EXISTS WITH FEDERAL LAW. THE

OPINION IS IN DIRECT CONFL"CT WITH

Jenkins v. James B. Day and Company, 69 Ohio

St.3d 541, 634 N.E.2d 998 (1994), AND THE

OPINIONS OF THIS COURT IN CSX

Transportation, Inc. v. Easterwood, 507 U.S.__,

123 L.Ed.2d 387, 113 S.Ct. 1732 (1993), AND

Freightliner Corporation v. Myrik, __U.S.__,

131 L.Ed.2d 385, 115 S.Ct. 1483 (1995).

Since this Court's decision in Cipollone v.

Liggett Group, Inc., 505 U.S.__, 120 L.Ed.2d 407, 112

S.Ct. 2608 (1992), considerable confusion has arisen

in lower state and federal courts over the preemption

of state tort remedies in areas regulated by federal

legislation. The opinion of the Illinois Supreme Court

in this case in effect creates a presumption in favor of

the preemption of state law remedies and is a

dramatic and voluntary abandonment of traditional

state police power in favor of the Congress.

At issue are the "requirements" of the Federal

Hazardous Substances Act, 15 U.S.C. 1261 & 1262,

(hereinafter FHSA). The FHSA was first enacted in

1960 in response to evidence that thousands of

children were being poisoned, burned and otherwise

accidentally injured through contact with unlabeled

6

or inadequately labeled hazardous household

chemicals. House Report (Interstate and Foreign

Commerce Committee) No. 89-2166, October 1, 1966,

Cong. Record Vol. 112 (1966). In 1966 the Act was

amended to include the ban as well as labeling of

hazardous household chemicals and to include toys or

other articles intended for use by children within the

definitions of substances that may be declared

hazardous. A limited preemption provision was

added to the Act which provides as follows:

(b1A) Except as provided in

paragraphs (2) and (3), if a hazardous

substance or its packaging is subject to

a cautionary labeling requirement

under section 2(p) or 3(b) [subsec. (p) of

this section or section 1262(b) of this

title] designed to protect against a risk

of illness or injury associated with the

substance, no State or political

subdivision of a State may establish or

continue in effect a cautionary labeling

requirement applicable to such

substance or packaging and designed to

protect against the same risk of illness

or injury unless such cautionary

labeling requirement is identical to the

labeling requirement under section 2(p)

or 3(b) [subsec. (p) of this section or

section 1262(b) of this title]. (15 U.S.C.

1261n., Pl. 86-613) (Appendix p. A-47)

Under the terms of the statute no particular

warning is required for any particular product. Ifa

7

product meets the definition of a “hazardous

substance" under section (f) of 15 U.S.C. 1261 it must

only contain a label that follows the general outline of

15 U.S.C. 1261(p). This section requires no specific

information concerning any particular product but

only requires that the label contain “signal words”

briefly stating the principal hazard, "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"

and “instruction, when necessary or appropriate, for

first aid treatment." Where no regulation has been

adopted pursuant to section 1262 to mandate a

specific label for a specific product, the manufacturer

is at its own risk in drafting warnings and

instructions. It is the manufacturer's duty to create

a label that adequately informs the ultimate

consumer of what precautionary measures are

necessary for the safe use of the product. If the

warnings and instructions for use are not adequate,

the product would be in violation of the Act.

Under the FHSA the Consumer Product Safety

Commission (hereinafter CPSC) is charged with the

enforcement of the statute. The CPSC first began the

procedure to declare methylene chloride a hazardous

substance on August 20, 1986, with a publication in

the Federal Register (51 F.R. 29778) of the proposed

amendment to the regulations issued under the

FHSA. The notice also included the label that is at

issue in this case.

On September 14, 1987, the Commission

published a notice in the Federal Register (52 F.R.

8

34698) which it titled a "Notice of Interpretation and

Enforcement Policy." (Appendix p. A-50) In that

publication the Commission stated that it was

suspending the rule making procedure regarding

methylene chloride since it had received numerous

objections to its proposed rule. The Commission

announced:

Rather than continue with the

rulemaking, the Commission believes it

is preferable to issue this statement of

interpretation and enforcement policy.

If the rulemaking proceeding were

continued, there is a potential that

there would be a _ subsequent

adjudicatory hearing, as well as

subsequent appeals to the Commission

and to a court of appeals, which could

delay the effective date of the rule for up

to several years. (Appendix p. A-52)

The label at issue in this case was republished

with the Commission stating that individual

enforcement actions would not be brought against

firms who used it. However, the Commission did

admit that:

This policy is not a binding rule, but is

merely a notice of the Commission's

intention to bring appropriate

enforcement actions under the FHSA.

In any such actions, any parties who

disagree about whether any particular

products containing methylene chloride

9

are hazardous substances will have the

opportunity to challenge the

Commission's technical data and legal

conclusions in Federal District Court.

(Appendix p. A-56)

The Commission did not withdraw the

proposed rule to amend its regulations to declare

methylene chloride a hazardous substance and stated

that it would reactivate the procedure to amend its

regulations should voluntary compliance with its

position not occur. The proposed rule is still pending

before the Commission and has been subject to

periodic notices of its pendency in the Federal

Register. (57 F.R. 52313 (1992); 58 F.R. 25274 (1993);

58 F.R. 57271 (1993); 60 F.R. 24261 (1995)).

The opinion of the Illinois Supreme Court is in

error in two respects. First, the Court holds that the

general provisions of the FHSA under section 1261 (p)

are “requirements” that are sufficient to extinguish

Illinois tort law. The Court failed to understand that

the only requirement of this section is that the

manufacturer of the product supply it with an

adequate warning for its use. Under Illinois law the

duty of the manufacturer is the same and no conflict

with the FHSA is possible. Palmer v. Avco

Distributing Corp., 82 Tll.2d 211, 412 N.E.2d 959, 964

(1980); Suich v. H & B Printing Machinery, Inc., 185

Ill.App.3d 863, 541 N.E.2d 1206, 1216 (1989).

The second error of the Illinois Supreme Court

was to transmute the failed attempt of the CPSC to

obtain a regulation for methylene chloride into

10

positive Federal law that would preempt Illinois law

and Petitioner’s product liability action.

The only time that a specific label requirement

is created under the FHSA is when the CPSC acts

under 15 U.S.C. 1262 to declare a substance as

hazardous and to further establish specific contents

for a label for that specific product. In order to declare

a substance as hazardous under the Act or to provide

for specific warnings and instructions in a label, it is

necessary for the CPSC to follow the procedure set

out in section 1262(a)(2) of the Act which incorporates

the regulatory scheme provided for in the Food Drug

and Cosmetic Act, 21 U.S.C. 371. This procedure

requires a public evidentiary hearing as to any

proposed rule to which objections are filed with a

right of appeal to the United States Circuit Court of

Appeals. In order for the actions of the CPSC to

preempt state law under the FHSA, their own actions

must have the force of law - the issuance of a

regulation pursuant to the terms of the Act. As the

Court held in Toy Mfrs. of America, Inc. v.

Blumenthal, 986 F.2d 615 (2nd Cir.1992):

. . . The Act does not purport to

establish a comprehensive federal

scheme of regulating hazardous

substances found in the household. In

fact, the FHSA does not ban any items

or require any precautions. Instead, it

authorizes regulations to be issued by

the Consumer Product Safety

Commission ("CPSC" or “Commission")

pursuant to the Act, and sets guidelines

ll

to be followed by the CPSC in

promulgating those regulations. (At 986

F.2d 617).

What the CPSC did with methylene chloride

was to attempt an end run around the requirements

of the FHSA. Previous attempts to do this with other

products have been rejected as extra legal acts and

voided by the courts. Pactra Industries, Inc. v.

Consumer Product Safety Commission, 555 F.2d 677,

679 (9th Cir.1977); Springs Mills, Inc. v. Consumer

Product Safety Commission, 434 F.Supp. 416, 435

(D.S.C., 1977).

In Jenkins V. James B. Day and Company, 69

Ohio St.3d 541, 634 N.E.2d 998 (1994), the Supreme

Court of the State of Ohio was presented with a case

that was identical to the case at bar in all respects.

In Jenkins, the decedent was found after using a

product that was basically methylene chloride with

the cause of her death being methylene chloride

poisoning. In an action alleging inadequate warnings

the trial court granted summary judgement to the

defendant manufacturer holding that the FHSA

preempted the plaintiff's action. The Ohio Court of

Appeals reversed and the case reached the Ohio

Supreme Court on the sole issue of whether the

FHSA preempted the wrongful death product liability

action based on state law. That Court reached the

opposite conclusion from the Illinois Supreme Court

holding that state product liability law was identical

to the general requirements of the FHSA:

12

As we read appellee's claims relating to

inadequate warning, their essence is

that appellant did not provide a

warning label which was reasonably

adequate to inform a user of the product

of the risks involved, and steps to be

taken to avoid those risks. We find that

the requirement appellee attempts to

impose on appellant can be

characterized as “identical to the

labeling requirement under section

2(p)(Section 1261(p), Title 15, U/S.

Code],” and therefore that appellee's

products liability labeling claims are not

preempted by the FHSA, Section 1261

note (Effect upon Federal and State

Law,) Title 15, U.S. Code. (at 634

N.E.2d 1003).

The opinion of the Illinois Supreme Court is

also in conflict with this Court’s opinions in CSX

Transportation, Inc. V. Easterwood, 507 U.S.___, 123

L.Ed.2d 387, 113 S.Ct. 1732 (1993) and Freightliner

Corporation V. Myrik, __U.S._, 131 L.Ed.2d 385,

115 S.Ct. 1483 (1995). In CSX Transportation, this

Court refused to find that the general provisions of

the Federal Railroad Safety Act of 1970 (FRSA), 45

U.S.C. § 421 ff., preempted a state negligence claim

under Georgia law against a railroad for failing to

maintain adequate warning devices at a grade

crossing. At issue were regulations issued by the

Secretary of Transportation pursuant to the terms of

the Act which provided that all warning devices

law, this Court held that there could be no

preemption of the plaintiff's negligence action.

To the same extent, the FHSA, in its general

provisions, only requires that an adequate warning

and instructions for use of the product be given on its

label, but does not specify how this is to be

accomplished. The content of a label for a particular

product is left to the skill and discretion of the

manufacturer of the product who publishes it at its

own risk as to its effectiveness and adequacy.

CSX Transportation, Inc. v. Easterwood is also

instructive as to what is necessary to work a

preemption. An additional count of negligence

alleged against the railway was that the train was

going too fast. However, the undisputed evidence was

that the speed of the train was within the maximum

speed .imit established for the section of track were

the collision occurred as ogg: A

regulations promulgated by the FRSA. is Court

held that since there was a specific regulation

establishing a maximum speed any additional state

regulation regarding the speed of trains was

preempted.

14

In the case at bar the CPSC certainly could

have followed through on its rule making procedure,

declared methylene chloride a hazardous product and

required that a particular label be used for all

products containing it pursuant to section 1262.

However, no such regulation has ever been adopted

concerning methylene chloride; and it is only subject

to the general labeling requirements of 1261(p).

Similarly in Freightliner Corporation v. Myrik

this Court refused to find that a state product liability

action was preempted by the National Traffic and

Motor Vehicle Safety Act of 1966, 15 U.S.C. section

1381, et seq., (hereinafter the Safety Act) and the

regulations issued thereunder. It was plaintiff's

allegation that the tractor trailer unit manufactured

by the defendant was defective under state product

liability law in that it did not incorporate an ABS

braking system that would have prevented the

collisions. The defendants argued that the general

provisions of the Safety Act and the power of the

Secretary of Transportation to establish appropriate

safety standards preempted the plaintiff's action.

Since the Secretary had not chosen to require that the

tractor trailer units be equipped with ABS braking

systems, no state regulation, including product

liability actions, could enforce such a requirement.

This Court rejected such an argument holding:

Petitioners’ preemption argument is

ultimately futile, however, because

respondents’ common-law actions do not

conflict with federal law. First it is not

impossible for petitioners to comply with

15

both federal and state law because there

is simply no federal standard for a

private party to comply with. Nothing

in the Safety Act or its regulations

currently regulates the use of ABS

devices. (At 115 S.Ct. 1487)

Under the FHSA there is no requirement for

any particular warning to be given concerning the use

of methylene chloride. The only “requirement” is that

adequate instructions for use and warnings be given.

There exists nothing in the body of federal law that

requires any particular type of warning or instruction

for the chemical methylene chloride. The proposed

regulation regarding methylene chloride can have no

greater effect than the suspended regulation

regarding stopping distances in Freightliner

Corporation. Neither is an expression of positive

federal law that can displace state law.

CONCLUSION

Allowing the opinion of the Supreme Court of

the State of Illinois to stand in this case will create

additional confusion and uncertainty on the issue of

the federal preemption of state law tort claims. For

reasons that are not apparent, the Supreme Court of

the State of Illinois voluntarily relinquished

considerable areas of its traditional police power in

favor of a general federal statute and an ineffective

declaration by the CPSC. The opinion of the Court is

an open invitation to other courts to indulge in a

16

presumption in favor of rather than against the

preemption of traditional state police power and is

directly in conflict with prior opinions of this Court

and the court of a sister state. It is respectfully

prayed that this Court grant the Petition for a Writ of

Certiorari and accept this case for review.

Respectfully submitted,

Carl F. Schroeder

Counsel of Record

Schroeder & Hruby, Ltd.

2100 Manchester Road

Suite 1015

P. O. Box 230

Wheaton, Illinois 60189

(708) 462-1400

Attorney for Petitioner

APPENDIX

f ?

noe

hw ae i

A-1

Richard BUSCH, Adm'r of the Estate of Melissa

Busch, Deceased, Appellant,

v.

GRAPHIC COLOR CORPORATION et al.,

Appellees.

No. 78662.

Supreme Court of Illinois.

Feb. 15, 1996.

Appeal, Appellate Court, Second District, DuPage

County, Richard A. Lucas, Judge, AC2-94-0141,

TR91L207, 0-010595.

Carl F. Schroeder, Schroeder & Hruby, Ltd., Wheaton, for

Richard Busch.

Wylie, Mulherin, Rehfeldt & Varchetto, Wheaton,

Stephen A. Rehfeldt, William J. Wylie and Associates,

Wheaton, for Grahic Color Corporation.

Jane B. McCullough, Altheimer & Gray, Chicago, for

AMREP, Inc.

Chief Justice BILANDIC delivered the opinion of the

court:

*1 The plaintiff, Richard Busch, as administrator of the

estate of his deceased wife, Melissa, filed this wrongful

death action in the circuit court of Du Page County

against AMREP, Inc. (AMREP), and Graphic Color

Corporation (Graphic Color) for the benefit of himself, the

surviving spouse. Melissa died of methylene chloride

intoxication after using a paint stripper manufactured by

AMREP while on the premises of R. Busch Drum, Inc.

(Busch Drum), a corporation of which Richard Busch is

president and part owner. Prior to Melissa's death,

several cases of the paint stripper had been supplied to

Busch Drum by a representative of Graphic Color. No

claim or action for Melissa's death was brought by the

plaintiff against Busch Drum.

The trial court entered summary judgment in favor of the

A-2

defendants on the ground that the common law tort claims

on which the plaintiff's wrongful death action is based are

preempted by provisions of the Federal Hazardous

Substances Act (FHSA) (15 U.S.C. s 1261 et seq. (1988)).

The appellate court affirmed. (268 Ill.App.3d 763, 206

Ill.Dec. 71, 644 N.E.2d 839.) We allowed the plaintiff's

petition for leave to appeal (145 Ill.2d R. 315).

FACTS

Busch Drum is a small corporation engaged in the

business of buying, selling, and brokering industrial

drums. Richard Busch is the president of Busch Drum,

and he and his mother, Carol Busch, are the sole owners

and the only employees of the company. Although Richard

and Melissa were married, Melissa was not connected

with Busch Drum in any capacity.

Graphic Color is a printing company which uses large ink

vats in its printing operations. In the summer of 1988,

nearly a year before Melissa's death, Busch Drum entered

into an agreement with Graphic Color to periodically clean

its ink vats. This task, however, was not part of Busch

Drum's regular business operations. Richard, who was

Busch Drum's only production employee, undertook the

task of cleaning the vats in the company's garage.

Graphic Color delivered the vats to Busch Drum along

with rags, dust masks, and cleaning solvent, and a

Graphic Color representative instructed Richard on how

to clean the vats.

The solvent was a product called "Misty Paint Stripper

and Decal Remover" (Misty Paint Stripper) manufactured

by AMREP. The paint stripper contained a variable

amount of methylene chloride, which AMREP purchased

from Dow Chemical Corporation, with a maximum

concentration of 77%. Richard was given five cases of

Misty Paint Stripper for each vat to be cleaned. Each case

contained 12 cans of the product, and Richard was told by

the Graphic Color representative that it would take 60

A-3

cans to clean each vat.

Melissa was not an employee, agent, or independent

contractor of Busch Drum but helped out in the office from

time to time without pay. On occasion, Melissa saw

Richard cleaning the ink vats. However, she was never

asked or required to clean the vats.

On March 20, 1989, the day of Melissa's death, Richard

went to the office early in the morning before leaving to

meet with customers. Melissa was at home at this time.

When Richard returned to the office at approximately

12:20 p.m., he found Melissa unconscious in the garage

near one of the vats. Several empty cans of Misty Paint

Stripper and numerous rags were lying about; Melissa

was wearing a dust mask and was covered with ink.

According to Richard, the windows were open and the fans

were on when he found Melissa. The medical examiner's

report, however, indicated that Richard had told an

investigator that the garage had "no mechanical

ventilation" and that "all windows and doors were closed"

when he returned to find Melissa. Richard and his mother

both submitted affidavits stating that Melissa had not

been requested or authorized to clean the ink vats.

Richard further stated that he was "totally unaware of her

presence” on the premises until he returned to find her.

The cause of Melissa's death was determined to be

methylene chloride intoxication.

*2 In his affidavit, Richard stated that, had he known the

Misty Paint Stripper could be fatal if inhaled, he "would

not have accepted the assignment" to clean the vats. He

also indicated that he was told by representatives of

Graphic Color that he could use as much of the product as

was necessary to clean the vats and that the only safety

equipment needed was a dust mask.

Robert Davis, a chemist which the plaintiff retained as an

expert witness, explained in an affidavit that methylene

chloride "is poisonous when inhaled in that it causes the

A-4

inhibition of the release of carbon dioxide from hemoglobin

in the blood which prevents the hemoglobin from picking

up oxygen." He stated that inhalation of a sufficient

amount of the chemical can cause unconsciousness and

even death. According to Davis, the risk of cancer which

has also been tied to methylene chloride is a risk "separate

and apart from its risk as a poisonous substance when

inhaled." Accordingly, a warning separate from that

concerning the chemical's potential carcinogenic effects

needed to be included in the Misty Paint Stripper's label.

Davis reviewed the warning appearing on the Misty Paint

Stripper label, which reads as follows:

(Front Panel]

"WARNING

VAPOR HARMFUL. CONTENTS UNDER PRESSURE.

KEEP OUT OF REACH OF CHILDREN. Read other

precautions on back panel."

(Back Panel]

"WARNING

Contains methylene chloride which has been shown to

cause cancer in certain laboratory animals. Risk to your

health depends on level and and duration of exposure.

Use this product outdoors if possible. If you must use it

indoors, open all windows and doors or use other means

to ensure fresh air movement during application and

drying. If properly used, a respirator may offer

additional protection. Obtain professional advice before

using. A dust mask does not provide protection against

vapors. Do not use in basement or other unventilated

areas. Avoid contact with skin and eyes. First Aid

Treatment: Contains Methylene Chloride and less than

4% Methyl Alcohol. In case of eye contact, flush with

water thoroughly. Call a physician immediately. If

swallowed, induce vomiting by placing fingers or spoon

at back of throat. Call physician immediately. Keep

patient warm. Avoid inhalation of spray mist. If

A-5

overcome, move patient to fresh air. Call physician

; tiately.”

Based on a reasonable degree of scientific certainty, Davis

concluded that the label was insufficient in that it failed

to specifically warn the user that the product can cause

death by asphyxiation if a sufficient amount of methylene

chloride is inhaled. He further concluded that in order for

the product to be reasonably safe for its intended use, it

would have to be accompanied by warnings substantially

similar to those contained in the manufacturer's safety

data sheet which Dow Chemical provided to AMREP

Among other things, the data sheet indicates that

methylene chloride vapor is “heavier than air and will

collect in low areas such as * * * storage tanks and other

being prior to the time he loses consciousness. According

that the Misty Paint Stripper was defective and

to warn that the inhalation of the paint stripper vapors

_ ANALYSIS

as a matter of law. (Ill. Rev.Stat.1989, ch. 110, par. 2-

1005(c); Espinoza v. Elgin, Joliet & Eastern Ry. Co.

(1995), 165 Ill. 2d 107, 113, 208 Ill Dec. 662, 649 N.E.2d

1323; Gilbert v. Sycamore Municipal Hospital (1993), 156

fil. 2d 511, 517- 18, 190 Ill. Dec. 758, 622 N.E.2d 788.) The

purpose of summary judgment is to determine whether a

question of fact exists. (Gilbert, 156 Ill.2d at 517, 190

Ill. Dec. 758, 622 N.E.2d 788.) Although summary

judgment is encouraged to aid in the expeditious

disposition of a lawsuit, it is a drastic means of disposing

of litigation and should thus be allowed only when the

movant's right is clear and free from doubt. (Purtill v.

Hess (1986), 111 [1l.2d 229, 240; 95 Ill Dec. 305, 489

A-7

N.E.2d 867.) As in all cases involving summary judgment,

our review of the evidence is de novo. Espinoza, 165 [Il 2d

at 113, 208 Ill. Dec. 662, 649 N.E.2d 1323.

The plaintiff contends that the appellate court erred in

upholding the trial court's grant of summary judgment for

the defendants on the basis that his tort claims were

preempted by provisions of the FHSA. For the reasons

which follow, we affirm the grant of summary judgment in

favor of AMREP and Graphic Color. As to AMREP, we

premise our holding on the doctrine of Federal

preemption. As to Graphic Color, however, our holding is

based on the principles set forth in section 388 of the

Restatement of Torts (Restatement (Second) of Torts s 388

(1965)).

A. AMREP

*4 (4](5] The supremacy clause contained in article VI of

the United States Constitution provides that the laws of

the United States “shall be the supreme Law of the Land,

* * * any Thing in the Constitution or Laws of any State

to the Contrary notwithstanding.” (U.S. Const., art. VI, cl.

2.) Thus, where State law conflicts with Federal law, the

former is “without effect.” (Maryland v. Louisiana (1981),

451 U.S. 725, 746, 101 S.Ct. 2114, 2128, 68 L.Ed.2d 576,

595.) The United States Supreme Court recently revisited

the issue of Federal preemption in Cipollone v. Liggett

Group, Inc. (1992), 505 U.S. 504, 112 S.Ct. 2608, 120

L.Ed.2d 407. In Cipollone, the Court reiterated that

“(clonsideration of issues arising under the Supremacy

Clause ‘start(s] with the assumption that the historic

police powers of the States [are] not to be superseded by ...

Federal Act unless that [is] the clear and manifest purpose

of Congress.’ " (Cipollone, 505 U.S. at 516, 112 S.Ct. at

2617, 120 L.Ed.2d at 422, quoting Rice v. Santa Fe

Elevator Corp. (1947), 331 U.S. 218, 230, 67 S.Ct. 1146,

1152, 91 L.Ed. 1447, 1459.) Accordingly, the Court noted,

"' "[t}he purpose of Congress is the ultimate touchstone”

A-8

‘of pre-emption analysis. [Citations.]" Cipollone, 505 U.S.

at 516, 112 S.Ct. at 2617, 120 L.Ed.2d at 422; accord Spitz

v. Goldome Realty Credit Corp. (1992), 151 Ill.2d 71, 74,

175 [lL Dec. 727, 600 N.E.2d 1185; Castillo v. Jackson

(1992), 149 IL 2d 165, 173-74, 171 Dl Dec. 471, 594 N.E.2d

323 (“It is the power and intent of Congress to preempt an

area of law which triggers the requirements of the

supremacy clause” (emphasis in original)).

(6)(7] Congress’ intent to preempt State law may be

manifested "by express provision, by implication, or by a

conflict between federal and state law.” (New York State

Conference of Blue Cross & Blue Shield Plans v. Travelers

Insurance (1995), 514 U.S. ----, ---, 115 S.Ct. 1671, 1676,

131 L.Ed.2d 695, 704.) However, "[wJhen Congress has

considered the issue of preemption and has included in the

enacted legislation a provision explicitly addressing that

issue, and when that provision provides a ‘reliable

indicium of congressional intent with respect to state

authority,’ [citation], ‘there is no need to infer

congressional intent to pre-empt state laws from the

substantive provisions’ of the legislation. [Citation.]”

Cipollone, 505 U.S. at 517, 112 S.Ct. at 2618, 120 L.Ed.2d

at 423.

[8] In addressing the preemptive scope of the FHSA, we

note preliminarily that the decisions of the Federal courts

interpreting a Federal act such as the FHSA are

controlling upon Illinois courts, “in order that the act be

given uniform application.” (Bowman v. Illinois Central

R.R. Co. (1957), 11 Ill.2d 186, 200, 142 N.E.2d 104; Boyer

v. Atchison, Topeka & Santa Fe Ry. Co. (1967), 38 Ill. 2d

31, 34, 230 N.E.2d 173; Elgin, Joliet & Eastern Ry. Co. v.

Industrial Comm'n (1956), 9 [112d 505, 507, 138 N.E.2d

553; see also Hiles v. Norfolk & Western Ry. Co. (1994),

268 [lL App.3d 561, 563, 205 Ill. Dec. 952, 644 N.E.2d 508;

Golden Bear Family Restaurants, Inc. v. Murray (1986),

144 Ill App.3d 616, 620, 98 Ill Dec. 459, 494 N.E.2d 581.)

A-9

Having so noted, we proceed now to determine how the

Federal courts have construed the FHSA's preemptive

*5 In the recent case of Moss v. Parks (4th Cir.1993), 985

F.2d 736, the Fourth Circuit Court of Appeals set forth the

relevant legislative history of the FHSA and its

“The FHSA was enacted in 1960. The purpose of the law

was to ‘provide nationally uniform requirements for

adequate cautionary labeling of packages of hazardous

substances which are sold in interstate commerce and

are intended or suitable for household use.’ House

Comm. On Interstate and Foreign Commerce, Federal!

Hazardous Substances Labeling Act, H.R.Rep. No. 1861,

86th Cong., 2d Sess. 2 (1960), reprinted in 1960

U.S.C.C.A.N. 2833, 2833. As enacted the FHSA did not

contain a preemption section. However, when the Act

was amended in 1966, the legislative history discussed

the impracticality of having the states produce

potentially fifty different labels for a particular

hazardous substance. Congress recommended ‘a limited

preemption amendment which would encourage and

permit states to adopt requirements identical with the

federal requirements for substances subject to the

Federal Act, and to enforce them to complement Federal

enforcement ...' House Comm. On Interstate and

Foreign Commerce, Child Protection Act of 1966,

H.R.Rep. No. 2166, 89th Cong., 2d Sess. 3 (1966),

reprinted in 1966 U.S.C.C.A.N., 4095, 4096." (Emphasis

added.) Moss, 985 F.2d at 739.

The 1966 amendments to the FHSA added the following

preemption provision, at issue in the present case:

"(Iif a hazardous substance or its packaging is subject to

a cautionary labeling requirement under section 2(p) or

3(b) (subsec. (p) of this section or section 1262(b) of this

title] designed to protect against a risk of illness or

A-10

injury associated with the substance, no State or

political subdivision of a State may establish or continue

in effect a cautionary labeling requirement applicable to

such substance or packaging and designed to protect

against the same risk of illness or injury unless such

cautionary labeling requirement is identical to the

labeling requirement under section 2(p) or 3(b) [subsec.

(p) of this section or section 1262(b) of this title]." 15

U.S.C. s 1261 note (b 1A) (1988).

(9) In discussing Congress’ purpose for enacting the

FHSA's preemption provision, the Ninth Circuit Court of

Appeals, in Chemical Specialties Manufacturers

pee pee Inc. v. Allenby (9th Cir.1992), 958 F.2d 941,

acted:

“On the one hand, a national safety standard would ease

the burden of compliance for chemical product

manufacturers by relieving them from the burden of

complying with fifty-one separate regulatory schemes

promulgated by each state and the federal government.

On the other hand, such a standard would take police

powers away from the states who best know how to

serve the interests of their citizenry. The preemption

clause in [the] FHSA balances these competing concerns

by leaving cautionary labeling requirements to the

federal government while allowing states to regulate the

sale and use of hazardous chemicals." (Emphasis

added.) Allenby, 958 F.2d at 950.

*6 (10) It is clear from the foregoing that Congress

intended to preempt all nonidentical State laws proposing

cautionary labeling requirements addressing the same

risk of illness or injury as the FSHA. The question

remains, however, whether the “state laws" which the

FHSA's preemption provision is intended to preempt

include common law tort claims based on a failure to warn

which seek to impose labeling requirements different from

those imposed under the Federal act. The plaintiff argues

A-1l

that such claims are not included in the category of laws

subject to preemption. We find, however, that under the

United States Supreme Court's holding in Cipollone and

the Federal decisions which have followed since Cipollone,

such claims are subject to preemption.

In Cipollone, a plurality of the Supreme Court concluded

that Federal law can, under some circumstances, preempt

common law tort actions. At issue in Cipollone was

whether the Federal Cigarette Labeling and Advertising

Act and its successor, the Public Health Cigarette

Smoking Act of 1969, served to preempt the petitioner's

common law tort claims. Both statutes contained express

preemption provisions. Although the Court found that the

predecessor statute had no preemptive effect on State-law

tort actions, it concluded that the preemption provision of

the 1969 statute did. That provision reads as follows:

"(b) No requirement or prohibition based on smoking

and health shall be imposed under State law with

respect to the advertising or promotion of any cigarettes

the packages of which are labeled in conformity with the

provisions of this Act." (Emphasis added.) See

Cipollone, 505.U.S. at 515, 112 S.Ct. at 2617, 120

L.Ed.2d at 422.

In holding that the above provision was broad enough to

preclude common law tort actions, the plurality rejected

the petitioner's contention that such actions imposed

neither “requirement(s]" nor “prohibition(s]." The

plurality dismissed the petitioner's assertion that

Congress intended only to preempt State statutes,

injunctions, and executive pronouncements and not tort

actions pursued in a judicial forum. (Cipollone, 505 U.S.

at 521, 112 S.Ct. at 2620, 120 L.Ed.2d at 426.) On this

point, the Court declared:

“The phrase '[njo requirement or prohibition’ sweeps

broadly and suggests no distinction between positive

enactments and common law; to the contrary, those

A-12

words easily encompass obligations that take the form of

common-law rules. As we noted in another context,

[state] regulation can be as effectively exerted through

an award of damages as through some form of

preventive relief. The obligation to pay compensation

can be, indeed is designed to be, a potent method of

governing conduct and controlling policy.’ [Citation.]

** *

Moreover, common-law damages actions of the sort

raised by petitioner are premised on the existence of a

legal duty, and it is difficult to say that such actions do

not impose ‘requirements or prohibitions.’ * * * [I]t is

the essence of the common-law to enforce duties that are

either affirmative requirements or negative prohibitions.

We therefore reject petitioner's argument that the

phrase ‘requirement or prohibition’ limits the 1969 Act's

preemptive scope to positive enactments by legislatures

and agencies." (Emphasis in original.) Cipollone, 505

U.S. at 521-22, 112 S.Ct. at 2620, 120 L.Ed.2d at 426.

*7 The Court went on to state the standard to be applied

in determining which, if any, of the petitioner's common

law claims were preempted by the 1969 act. The Court

explained that “[t]he central inquiry in each case is * * *

whether the legal duty that is the predicate of the

common-law damages action constitutes a 'requirement or

prohibition based on smoking and health ... imposed under

State law with respect to ... advertising or promotion,’

giving that clause a fair but narrow reading." (Cipollone,

505 U.S. at 523-24, 112 S.Ct. at 2621, 120 L.Ed.2d at 427.)

Applying that test to each of the common law claims

raised by the petitioner, the Court held that the

petitioner's failure-to-warn theory was preempted because

it sought to impose additional or more clearly stated

warnings relating to cigarettes than those imposed by the

1969 act. Cipollone, 505 U.S. at 524, 112 S.Ct. at 2621-22,

120 L.Ed.2d at 428. [FN1]

A-13

Since Cipollone, the majority of Federal courts that have

addressed the issue of Federal preemption over State

common law claims based on, among other things, a

failure to warn, where the preemption provision at issue

is similar or identical to the one in Cipollone, have found

the State-law claims to be preempted. See, e.g., Taylor AG

Industries v. Pure-Gro (9th Cir.1995), 54 F.3d 555; Bice

v. Leslie's Poolmart, Inc. (8th Cir.1994), 39 F.3d 887;

National Bank of Commerce v. Kimberly-Clark Corp (8th

Cir.1994), 38 F.3d 988; MacDonald v. Monsanto Co. (5th

Cir.1994), 27 F.3d 1021; Gile v. Optical Radiation Corp.

(3rd Cir.1994), 22 F.3d 540; Mendes v. Medtronic, Inc.

(1st Cir.1994), 18 F.3d 13; Worm v. American Cyanamid

Co. (4th Cir.1993), 5 F.3d 744; King v. E.1. Dupont De

Nemours & Co. (1st Cir.1993), 996 F.2d 1346; Shaw v.

Dow Brands, Inc. (7th Cir.1993), 994 F.2d 364; Moss, 985

F.2d 736, Papas v. Upjohn Co. (11th Cir.1993), 985 F.2d

516; Stamps v. Collagen Corp. (5th Cir.1993), 984 F.2d

1416; Arkansas- Platte & Gulf Partnership v. Van Waters

& Rogers, Inc. (10th Cir.1993), 981 F.2d 1177.

[11] More pertinent to this case, a number of these

Federal decisions have addressed the effect of the

preemption provision under the Federal Insecticide,

Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. s 136 et

seq. (1988)) and have found no notable difference between

the preemption language in the 1969 act at issue in

Cipollone and that found in the FIFRA. (See, e.g., Taylor,

54 F.3d 555; Bice, 39 F.3d 887; MacDonald, 27 F.3d 1021;

Worm, 5 F.3d 744; King, 996 F.2d 1346, Shaw, 994 F.2d

364; Papas, 985 F.2d 516; Arkansas-Platte, 981 F.2d

1177.) The preemption language of the FIFRA provides

that States "shall not impose or continue in effect any

requirements for labeling or packaging in addition to or

different from those required under this subchapter." (7

U.S.C. s 136v(b) (1988).) The FIFRA provision is

substantively equivalent, in our view, to the FHSA's

A-14

preemption provision. Indeed, Federal courts which have

addressed the issue are in accord with this finding. See,

e.g., Moss, 985 F.2d at 740 n. 3 ("The preemption language

of the two statutes is nearly identical"); Chemical

Specialties, 958 F.2d at 945 ("The preemption issues

arising under FHSA are identical to those arising under

FIFRA"); see also DeHaan v. Whink Prods. Co. (N.D.IIl.

January 25, 1994), No. 91-C-0014, 1994 WL 24322 (the

preemption provisions under FHSA and FIFRA are

“effectively identical").

*8 [12] Thus, applying Cipollone and its progeny to the

present case, we conclude that the FHSA's preemption

provision precludes plaintiffs from bringing common law

tort claims which seek to impose cautionary labeling

requirements for hazardous substances which are

different from and are designed to protect against the

same risk of illness or injury as those imposed by the

FHSA. We must now consider whether the plaintiff's

claims against AMREP seek to impose labeling

requirements that are different from those imposed under

the FHSA. Under section 1261(p) of the FHSA, the

labeling of a hazardous substance must:

"(1) * * * state[ ] conspicuously (A) the name and place

of business of the manufacturer, packer, distributor or

seller; (B) the common or usual name or the chemical

name (if there be no common or usual name) of the

hazardous substance or of each component which

contributes substantially to its hazard, unless the

Commission by regulation permits or requires the use of

a recognized generic name; (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’,

A-15

‘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;

(I) instructions for handling and storage of packages

which require special care in handling or storage; and

(J) the statement (i) ‘Keep out of the reach of children’ or

its practical equivalent, or, (ii) if the article is intended

for use by children and is not a banned hazardous

substance, adequate directions for the protection of

children from the hazard * * *." 15 U.S.C. s 1261(p)(1)

(1988).

[13] The plaintiff maintains that the labeling provisions

of section 1261(p) impose no "requirements" with respect

to the cautionary labeling of paint strippers, such as the

Misty Paint Stripper at issue here, because they set forth

no specific precautions for any specific type of product.

The plaintiff argues that the labeling provisions of section

1261(p) are more in the nature of noncompulsory

guidelines to which companies can refer in crafting the

cautionary labels for the hazardous substances they

manufacture. We reject this contention. Despite the fact

that the provisions are couched in general terms

encompassing every type of hazardous substance, they are

nonetheless requirements for the cautionary labeling of

hazardous substances, which the plaintiff concedes

includes Misty Paint Stripper. Indeed, Congress made

this fact clear by referring to the provisions of section

1261(p) as cautionary labeling “requirements” in the

language of the FHSA's preemption provision. See 15

U.S.C. s 1261 note (b)(1A) (1988).

*9 [14] Moreover, the Consumer Product Safety

A-16

Commission (Safety Commission)--the Federal agency

responsible for administering the FHSA-—offered a detailed

labeling example for paint strippers containing methylene

chloride which it concluded conformed to the labeling

requirements of section 1261(p) of the FHSA. Apart from

evidencing that the provisions of section 1261(p) are to be

treated as labeling "requirements," the Safety

Commission's labeling example illustrates how those

requirements are met for products like Misty Paint

Stripper.

The promulgation of the labeling example was prompted

by a 1985 petition filed by the Consumer Federation of

America seeking to have household products containing

methylene chloride declared "hazardous substances" and

to have them banned pursuant to section 1261(q). (See

Petition HP 85-1, Petition Requesting Ban of Household

Products Containing Methylene Chloride, 53 Fed.Reg.

14,590 (1988).) Subsequently, the Safety Commission, in

August of 1986, proposed a rule to declare paint strippers

and other household products containing other than

nominal levels of methylene chloride to be hazardous

substances. Household Products Containing Methylene

Chloride; Status as Hazardous Substances, 51 Fed.Reg.

29,778 (1986).

In August 1987, the Safety Commission determined that

there was insufficient controversy to warrant a

rulemaking proceeding on the issue and published a notice

of interpretation and enforcement policy (hereinafter 1987

Notice) stating its view that household products

containing methylene chloride are hazardous substances

and are thus subject to the FHSA's labeling requirements.

(Labeling of Certain Household Products Containing

Methylene Chloride; Statement of Interpretation and

Enforcement Policy, 52 Fed.Reg. 34,698 (1987).)

Discussing the labeling requirements under the FHSA for

products containing methylene chloride, the Safety

A-17

Commission set forth a "Detailed Example of Labeling for

Paint Strippers" and noted that the label was the work

product of industry and consumer interest representatives

working with the Safety Commission's staff. (52 Fed.Reg.

34,698, 34,702 (1987).) The detailed example offered by

the Safety Commission provides as follows:

"(Front Panel]

CAUTION: Vapor Harmful, Read Other Cautions and

HEALTH HAZARD INFORMATION on Back Panel [or

equivalent language]

{Back Panel]

Contains methylene chloride, which has been shown to

cause cancer in certain laboratory animals. Risk to your

health depends on level and duration of exposure.

[Or equivalent language]

[The back panel labeling given above would be placed

separately from use precaution information such as the

following.]

Use this product outdoors, if possible. If you must use it

indoors, open all windows and doors or use other means

to ensure fresh air movement during application and

drying.

If properly used, a respirator may offer additional

protection. Obtain professional advice before using. A

dust mask does not provide protection against vapors.

Do not use in basement or other unventilated area.

Open container carefully and close after each use. Clean

up rags, papers, and waste promptly. Allow solvent to

evaporate, then dispose of in metal containers."

*10 [15] The Safety Commission declared in its 1987

Notice that the above labeling language fulfills the

requirements of section 1261(p) of the FHSA. (52 Fed.Reg.

34,698, 34,702 (1987).) The Safety Commission's labeling

example represents an interpretation of a statute by the

administrative agency charged with administering the

FHSA. This court has held that an administrative

A-18

agency's interpretation of a statute it is responsible for

administering "should be accorded considerable deference"

so long as Congress has not expressed its intent as to the

issue and provided the agency's interpretation is

reasonable. See Spitz, 151 Ill.2d at 76, 175 Ill.Dec. 727,

600 N.E.2d 1185; see also Chevron U.S.A., Inc. v. Natural

Resources Defense Council, Inc. (1984), 467 U.S. 837, 844,

104 S.Ct. 2778, 2782, 81 L.Ed.2d 694, 704.

[16] As stated, the Safety Commission has concluded that

its detailed labeling example satisfies the cautionary

labeling requirements of section 1261(pX1) of the FHSA.

(52 Fed.Reg. 34,698, 34,702 (1987).) In the view of the

Safety Commission, therefore, nothing more is required of

labels for paint strippers containing methylene chloride

under the FHSA, other than what is stated in its example.

We hold that it is appropriate to defer to the Safety

Commission on this point since Congress has yet to

express its view on the issue and because we find the

Safety Commission's interpretation to be reasonable.

[17] As the facts indicate, the label contained on the Misty

Paint Stripper product used by Melissa was virtually

identical to the detailed example set forth by the Safety

Commission. The labeling requirements which the

plaintiff seeks to impose on AMREP, namely, a warning

that inhalation of Misty Paint Stripper “would cause

death" and "adequate instructions for its use" (implying

that the existing instructions are not adequate), constitute

requirements that are not "identical" to those required

under section 1261(pX1). (See 15 U.S.C. s 1261 note

(bX 1A) (1988).) As the Safety Commission's

interpretation of section 1261(p\1) reveals, the additional

information which the plaintiff seeks to require AMPEP

to place on the label is not mandated by the FHSA.

Accordingly, the plaintiff's tort claims against AMREP,

based on a failure to warn, are preempted.

[18] As a final argument, however, the plaintiff contends

Misty Paint Stripper label covers a risk of injury different

from the risk of injury against which the labeling

requirements of the Federal act were designed to protect.

The plaintiff asserts that the Safety Commission's own

comments in its 1987 Notice reveal that the risk of injury

which the FHSA's cautionary labeling requirements for

paint strippers were intended to protect against was the

risk of cancer, not the risk of asphyxiation, which Melissa

encountered.

We agree with the plaintiff that under the subject

illness or injury" as that targeted by the Federal statute

are preempted. (Emphasis added.) (15 U.S.C. s 1261 note

(bX 1A) (1988).) We also agree that the Safety

Commission's primary focus in issuing its 1987 Notice

was, in fact, to warn consumers of the carcinogenic risks

posed by methylene chloride found in products such as

paint strippers. We disagree, however, that the risk of

cancer was the Safety Commission's sole focus. The

Safety Commission has expressly acknowledged its

concern with the risk to individuals of acute inhalation

intoxication posed by methylene chloride vapors. This

concern is evidenced by statements made by the Safety

Commission in 1992 when it responded to several

individuals' comments regarding the preemptive scope of

the FHSA. In responding to one individual's comment

that the labeling requirements of the FHSA were too weak

and vague to preempt State laws, the Commission

responded:

*11 "The requirements of the FHSA are not vague. * *

* (T)he labeling must communicate to the consumer an

understanding of the potential principal hazard or

hazards presented by the product in order to avoid being

A-20

misbranded and subject to legal action.

***

The cautionary label required under [section 1261(p) of]

the FHSA must present a balanced perspective of the

potential hazards of the product. Many products which

may cause chronic health effects may also be acutely

toxic and present physical hazards, such as

flammability.” (Emphasis added.) 57 Fed.Reg. 46,626,

46,664 (1992).

The Commission then went on to highlight the labeling

requirements under the FHSA for paint strippers

containing methylene chloride:

"The suggested labeling for methylene chloride paint

strippers had to take into consideration the product's

acute inhalation toxicity in addition to the

carcinogenicity hazard. Therefore, the suggested front

panel label statement is ‘VAPOR HARMFUL’ with the

instruction ‘Read Other Cautions and HEALTH

HAZARD INFORMATION on back panel’ and the back

panel statement is ‘Contains methylene chloride, which

has been shown to cause cancer in certain laboratory

animals.’ For products where the only hazard is

carcinogenicity and the evidence of increased risk of

cancer to humans is clear, the labeling would be more

straightforward." (Emphasis added.) 57 Fed.Reg.

46,626, 46,664 (1992).

As the foregoing comments of the Safety Commission

indicate, the cautionary labeling requirements of the

FHSA for paint strippers containing methylene chloride

are intended to protect against the same risk at issue

here, namely, the risk of acute inhalation toxicity.

Accordingly, we find the plaintiff's final argument to be

without merit.

For the reasons stated, we hold that the plaintiff's failure-

to-warn claims against AMREP, upon which he bases his

wrongful death action, are preempted by the FHSA. Our

A-21

holding today comports with Congress’ stated goal in

enacting the Federal statute and the preemption provision

contained therein of providing nationally uniform

requirements for the cautionary labeling of hazardous

substances like the paint stripper at issue here.

Accordingly, we affirm the judgment of the appellate,

which affirmed the circuit court's grant of summary

judgment in favor of AMREP. -

B. Graphic Color

[19] We also affirm that portion of the judgment of the

appellate that affirmed the circuit court's grant of

summary judgment in favor of Graphic Color, although for

reasons different from those relied upon by the courts

below. It is within this court's power and discretion to

affirm the decision below on any ground warranted,

regardless of whether that ground was relied on by the

lower courts or whether the reasons given by those courts

were correct. Federal Deposit Insurance Corp. v. O'Malley

(1994), 163 Ill.2d 130, 140, 205 Ill.Dec. 534, 643 N.E.2d

825; Messenger v. Edgar (1993), 157 Ill.2d 162, 177, 191

Ill. Dec. 65, 623 N.E.2d 310.

[20] We decline to resolve the issue of Graphic Color's

liability on the basis of Federal preemption because the

plaintiff's claims against this defendant appear to stem

not from the label affixed to the Misty Paint Stripper but

from a general failure to warn of the product's dangers

and the failure to properly instruct as to its proper use.

Thus, unlike the claims against AMREP, the allegations

against Graphic Color do not on their face seek to impose

cautionary labeling requirements with respect to the

Misty Paint Stripper different from those imposed by the

FHSA.

*12 [21] The precise allegations against Graphic Color,

contained in count I of the plaintiff's amended complaint,

are that it:

“a. Failed to warn R. Busch Drum, Inc. that the

A-22

inhalation of ‘Misty Paint Stripper and Decal Remover’

would cause the death of individuals using said product;

b. Failed to properly instruct R. Busch Drum, Inc. in the

use of the ‘Misty Paint Stripper and Decal Remover.’ "

In addition to arguing that these claims are preempted by

the FHSA, Graphic Color argues that it owed no legal duty

to warn Melissa of the dangers arising from use of the

paint stripper or to instruct her as to its proper use

because she was not a foreseeable user of the product. In

support of this contention, Graphic Color cites to section

388 of the Restatement of Torts, which addresses the

liability of persons supplying chattels for the use of others.

In Huckabee v. Bell & Howell, Inc. (1970), 47 Ill.2d 153,

265 N.E.2d 134, this court, although not explicitly

adopting section 388's provisions, cited to those provisions

with approval. We find that this case is an appropriate

one for application of section 388. For the reasons which

follow, we hold that section 388 of the Restatement bars

the plaintiff's action against Graphic Color.

Section 388 states:

“s 388. Chattel Known to be Dangerous for Intended Use

One who supplies directly or through a third person a

chattel for another to use is subject to liability to those

whom the supplier should expect to use the chattel with

the consent of the other or to be endangered by its

probable use, for physical harm caused by the use of the

chattel in the manner for which and by a person for

whose use it is supplied, if the supplier

(a) knows or has reason to know that the chattel is or is

likely to be dangerous for the use for which it is

supplied, and

(b) has no reason to believe that those for whose use the

chattel is supplied will realize its dangerous condition,

and

(c) fails to exercise reasonable care to inform them of its

dangerous condition or of the facts which make it likely

A-23

to be dangerous." (Emphasis added.) Restatement

(Second) of Torts s 388 (1965).

The chattel at issue here is the Misty Paint Stripper

which Graphic Color supplied to Busch Drum for use in

cleaning its ink vats. Prior to Melissa's death, Richard

was the only Busch Drum employee who had ever cleaned

Graphic Color's vats. Melissa was never authorized by

Richard or Carol Busch to perform that task. In an

affidavit, Richard admitted that Melissa “was never an

employee, agent or independent contractor of or for R.

Busch Drum, Inc. * * * [and] was never paid any sums of

money, whether by cash or negotiable instrument at any

time whatsoever." He further admitted that he “at no

time ever requested that * * * Melissa go to the premises

of R. Busch Drum, Inc. for any reason on March 20, 1989

and * * * was totally unaware of her presence at the

premises of R. Busch Drum, Inc. until such time as [he]

arrived [there] * * * at approximately 12:20 p.m. * * *."

Furthermore, in his answers to AMREP'’s interrogatories,

Richard stated that he provided no warnings, instructions

or training to Melissa regarding how to clean the ink vats

or properly use the Misty Paint Stripper.

*13 Similarly, Carol Busch acknowledged in an affidavit

that she and Richard were the only employees of Busch

Drum, that Melissa was never employed or retained in

any capacity by the company, and that she never

requested or authorized Melissa to clean Graphic Color's

vats.

The record shows that Graphic Color supplied Busch

Drum, not Melissa, with the Misty Paint Stripper, and the

to clean the ink vats using Poem mag os

lying the provisions of section to oregoing

satk, tat tech thal nadie Cotes tanta bo Gate

liability for Melissa's death. Under section 388, Graphic

Color is only liable for injuries to those whom it "should

A-24

expect" to use the paint stripper supplied to Busch Drum

“with the consent of" Busch Drum or to those whom

Graphic Color “should expect * * * to be endangered by its

probable use" when used "in the manner for which and by

a person for whose use it is supplied." (Restatement

(Second) of Torts s 388 (1965).) Clearly, Melissa falls into

neither of these categories.

[22] Comment a to section 388 explains that:

"The words ‘those whom the supplier should expect to

use the chattel’ and the words ‘a person for whose use it

is supplied’ include not only the person to whom the

chattel is turned over by the supplier, but also all those

who are members of a class whom the supplier should

expect to use it or occupy it or share in its use with the

consent of such person * * *, * * *

In the cases thus far decided, the rule stated in this

Section has been applied only in favor of those who are

injured while the chattel is being used by the person to

whom it is supplied, or with his consent." (Emphasis

added.) Restatement (Second) of Torts s 388, Comment

a, at 301 (1965).

(23) Further discussing the scope of liability under section

388, comment e explains that, “[e]xcept possibly where

there is a privilege to use the chattel, the one who supplies

a chattel for another's use is not subject to liability for

bodily harm caused by its use by a third person without

the consent of him for whose use it is supplied."

(Emphasis added.) Restatement (Second) of Torts s 388,

Comment e, at 303 (1965).

As Graphic Color points out, under the applicable

provisions of section 388, the plaintiff must prove two

things before Graphic Color can be subject to liability for

Melissa's death. First, he must show that Melissa used

the paint stripper supplied by Graphic Color with the

consent of someone at Busch Drum. Second, he must show

that Graphic Color should have expected that Melissa

A-25

would use the product. By virtue of the numerous

admissions in the record indicating that Melissa was

never authorized by anyone at Busch Drum to clean the

ink vats or to use the paint stripper, Graphic Color cannot

be subject to liability for her death. Apart from being

Richard's wife, Melissa had no connection whatsoever with

Busch Drum. At the time of her death, unbeknownst to

Richard or Carol Busch, Melissa took it upon herself to

enter Busch Drum's premises and undertake the task of

cleaning Graphic Color's ink vats using the Misty Paint

Stripper. Melissa had never cleaned the vats in the past,

nor was she ever taught how to properly do so. Under

these circumstances, Melissa clearly was not a member of

a class whom Graphic Color should have expected would

usc the paint stripper. Accordingly, Graphic Color is not

liable for her death. See Restatement (Second) of Torts s

388, Comment a, at 301 (1965).

*14 (24) Finally, we reject the plaintiff's assertion that

Graphic Color is subject to liability for Melissa's death

because she was “privileged” to use the paint stripper

despite the lack of consent from Richard or Carol Busch.

(See Restatement (Second) of Torts s 388, Comment e, at

303 (1965).) The plaintiff bases this "privilege" on the fact

that Melissa was his wife and it is commonly understood

that in a small, family-owned company, such as Busch

Drum, family members will often help out around the

company. Under such circumstances, the plaintiff argues,

Melissa falls within the class of persons whom Graphic

Color should have expected would use the paint stripper.

The plaintiff has cited no authority to support this

contention. In any event, this court cannot permit the

unfairness that would result from such a holding

particularly where Richard and Carol Busch both

repeatedly admitted that Melissa was not authorized to-

clean the ink vats or to use the paint stripper which

Graphic Color supplied to Busch Drum. For these

A-26

reasons, summary judgment was properly entered in favor

of Graphic Color.

CONCLUSION

For the foregoing reasons, the judgment of the appellate

court, upholding the circuit court's grant of summary

judgment in favor of AMREP and Graphic Color, is

affirmed.

Judgment affirmed.

HARRISON, J., took no part in the consideration or

decision of this case.

Justice MILLER, specially concurring:

I concur in the judgment of the court. I write separately

because I believe that Federal legislation preempts the

plaintiff's action in its entirety.

The majority holds that the provisions of the Federal

Hazardous Substances Act (FHSA) (15 U.S.C. s 1261 et

e2q. (1988)) preempt the plaintiffs claim against

defendant AMREP, Inc., manufacturer of Misty Paint

Stripper and Decal Remover. The majority declines,

however, to adopt that reasoning with respect to

defendant Graphic Color, which supplied the product to

the plaintiff. The majority instead concludes that Graphic

Color owed no duty of care to the decedent because she

was not a foreseeable user of the product. I believe that

the plaintiff's claim against Graphic Color is similarly

preempted by the FHSA and, like the trial judge and

appellate court, would grant summary judgment to.

Graphic Color on that ground. Allowing the plaintiff to

proceed with his common law action against Graphic Color

would be inconsistent with the preemptive features of the

Federal legislation.

The preemption provision of the FHSA states:

"[Iif a hazardous substance or its packaging is subject to

a cautionary labeling requirement under section 2(p) or

A-27

3(b) * * * designed to protect against a risk of illness or

injury associated with the substance, no State or

political subdivision of a State may establish or continue

in effect a cautionary labeling requirement applicable to

such substance or packaging and designed to protect

against the same risk of illness or injury unless such

cautionary labeling requirement is identical to the

labeling requirement under section 2(p) or 3(b) * * *." 15

U.S.C. s 1261 note (b(1A) (1988).

*15 The gravamen of the plaintiff's claim against Graphic

Color, like that of its claim against AMREP, is the

defendant's failure to provide warnings of the dangers of

Misty Paint Stripper and instructions regarding its proper

use. Notably, the plaintiff does not contend that there is

any basis for distinguishing between these two

defendants. Nor does the plaintiff argue that Graphic

Color made any special warranty or representation

regarding the use of the paint stripper. Just as the

plaintiffs claim against the product manufacturer is

preempted by the Federal Hazardous Substances Act, so

too must be the plaintiff's corresponding claim against

Graphic Color.

Cases construing the similar preemption provision of the

Federal Insecticide, Fungicide, and Rodenticide Act (7

U.S.C. s 136 et seq. (1988)) have held that a manufacturer

may not be held liable for failing to provide point-of-sale

or other warnings in addition to those that appear on the

product label; the rationale for those decisions is that

imposing such a requirement would improperly suggest

that the label on the product itself was in same way

deficient. (Taylor AG Industries v. Pure-Gro (9th

Cir.1995), 54 F.3d 555, 561; Papas v. Upjohn Co. (11th

Cir.1993), 985 F.2d 516, 519; Jenkins v. Amchem

Products, Inc. (1994), 256 Kan. 602, 620-23, 886 P.2d 869,

881-82.) By the same token, in the absence of some

special duty or warranty running between Graphic Color

A-28

and the plaintiff, requiring Color Graphics to provide

separate warnings of the product's dangers would suggest

that the manufacturer's own label was inadequate. (See

Taylor AG Industries, 54 F.3d at 561 & n. 3.) To hold

Graphic Color liable in these circumstances would be

inconsistent with the preemptive goals of the Federal

legislation. The majority correctly finds that the plaintiff's

claim against AMREP is preempted by the FHSA, and I

would extend the same reasoning to the plaintiff's claim

against Graphic Color.

FN1. In their opinion concurring in the judgment

in part and dissenting in part, Justices Scalia and

Thomas agreed with the four-member plurality

that the 1969 statute applied to State common law

actions and served to preempt the petitioner's

failure-to-warn claims. The justices went on to

conclude, however, that Congress clearly intended

the statute to preempt the petitioner's remaining

tort claims as well, as evidenced by the statute's

"text, structure, purposes and subject matter."

Cipollone, 505 U.S. at 544-45, 112 S.Ct. at 2632,

120 L.Ed.2d at 441 (Scalia, J., concurring in part &

dissenting in part, joined by Thomas, J.).

A-29

268 Ill_App.3d 763, 206 Ill.Dec. 71,

Prod.Liab.Rep. (CCH) P 14,143

Richard BUSCH, as Adm'r of the Estate of Melissa

Busch,

Deceased, Plaintiff-Appellant,

v.

GRAPHIC COLOR CORPORATION et al., Defendants-

Appellees.

No. 2-94-0141.

Appellate Court of Illinois,

Second District.

Jan. 5, 1995.

Rehearing Denied Jan. 31, 1995.

Presiding Justice McLAREN delivered the opinion of

the court:

The plaintiff, Richard Busch, as administrator of the

estate of his deceased wife, Melissa Busch, appeals the

grant of sumruary judgment by the circuit court of Du

Page County in favor of the defendants, Graphic Color

Corporation and Amrep, Inc., based upon the court's

determination that the plaintiffs State-law action for

wrongful death was preempted by Federal law. We

affirm.

Richard Busch owns R. Busch Drum, Inc., which buys,

sells, and brokers recyclable industrial drums. Early in

1989, Graphic Color engaged Busch to clean some of its

printing ink vats. Graphic Color provided Busch with 60

cans of Misty paint stripper and decal remover (Misty

A-30

paint stripper), which is manufactured by defendant

Amrep. Graphic Color also provided Busch with 12 *841

(206 Ill.Dec. 73] vats to clean, each of which was about

five feet high and five feet in diameter.

Graphic Color did not specifically warn Busch that

Misty paint stripper, which contains methylene chloride,

could be fatal if inhaled, but each can of the product

contained printed warnings which track language

required by the Federal Consumer Product Safety

Commission (Safety Commission). See Safety

Commission, Labeling of Certain Household Products

Containing Methylene Chloride; Statement of

Interpretation and Enforcement Policy (hereinafter 1987

Enforcement Policy), 52 Fed.Reg. 34,698-702 (1987).

Melissa Busch, although not an employee of R. Busch

Drum, Inc., occasionally helped her husband with his

business. On March 20, [268 Ill.App.3d 765] 1989,

Richard Busch left his Cicero, Illinois, place of business to

call on customers. When he returned he found Melissa

unconscious next to one of the vats. She died, and the

cause of death was determined to be methylene chloride

intoxication.

On January 31, 1991, the plaintiff filed a complaint at

law alleging wrongful death against the defendants based

upon a claimed breach by the defendants of the duty to

warn of the danger of methylene chloride. The plaintiff

proffered an affidavit by Robert E. Davis, a chemist

experienced in the properties of toxic chemicals, who

expressed the opinion that the warning label contained on

the Misty painter stripper cans was insufficient in that it

does not specifically warn of the asphyxiation hazard of

methylene chloride.

A-31

The defendants filed motions for summary judgment

pursuant to section 2-1005 of the Code of Civil Procedure

(Code) (735 ILCS 5/2-1005 (West 1992)), alleging that the

plaintiffs State-law action was preempted by the Federal

Hazardous Substances Act (FHSA). (15 U.S.C. Sec. 1261

etseq, (1988).) Following a hearing on January 3, 1994,

the circuit court granted summary judgment for both

defendants, finding preemption. The plaintiff filed a

timely appeal.

On appeal, the plaintiff argues that the circuit court

erred in finding preemption in that (1) the Safety

Commission did not comply with Federal law in

promulgating warning label requirements for products

containing methylene chloride, and (2) the warning

required for such products concerns a risk of injury which

is different from that suffered by Melissa Busch.

[1](2](3] We note initially that, because this matter

comes to us via summary judgment, we have_de novo

review. (Olympic Restaurant Corp. v. Bank of Wheaton

(1993), 251 Ill.App.3d 594, 598, 190 Ill. Dec. 874, 622

N.E.2d 904.) A motion for summary judgment is properly

granted only when " ‘the pleadings, depositions, and

admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a

matter of law.'" (Purtill v. Hess (1986), 111 Ill.2d 229,

240, 95 Ill.Dec. 305, 489 N.E.2d 867, quoting

Ill. Rev.Stat.1983, ch. 110, par. 2-1005(c) (now 735 ILCS

5/2-1005(c) (West 1992)).) Supreme Court Rule 191(a)

provides that facts asserted in support of or opposition to

a motion for summary judgment must be contained in

affidavits and "shall be made on the personal knowledge

of the affiants." (134 Ill.2d R. 191(a).) Such affidavits

must conform to the requirements of Supreme Court Rule

A-32

191. Giampa v. Sunbeam Corp. (1966), 68 IIApp.2d 425,

430, 216 N.E.2d 233.

We first consider the plaintiffs argument that the

Safety Commission's labeling requirements for methylene

chloride products are null and void because the Safety

Commission did not comply (268 I1l.App.3d 766] with the

federally mandated procedures for establishing binding

labeling requirements. Therefore, the plaintiff argues, the

labeling requirements for methylene chloride do not in

fact exist and can have no preemptive effect.

[4] The defendants counter that the plaintiff waived

this argument for appeal because he did not raise the

issue below. The parties agree that, as a general principle

of law, issues not raised in the trial court are waived for

purposes of appeal. Lannom v. Kosco (1993), 247

fll. App.3d 629, 635-36, 186 Ill.Dec. 541, 616 N.E.2d 731.

[5] Here, the record discloses that the only mention of

the plaintiff's contention that *842 [206 IIl.Dec. 74] the

Safety Commission's labeling requirements for methylene

chloride were void came in a brief colloquy during

argument for summary judgment. Counsel for the

plaintiff stated:

"What was issued in 1987 [1987 Enforcement Policy]

was merely an intention of bringing enforcement

actions.

They [Safety Commission] followed none of the rule-

making procedures to get a valid rule under the

Federal Hazardous Substance [gic } Act. They just said,

‘If you don't do this, we're going to sue you. But if you

beat us in court, you can win.'"

A-33

The plaintiff's counsel offered no affidavit in support of

this contention, nor did he claim that he knew of his own

knowledge or through some research that the Safety

Commission in fact violated Federal rule-making

procedures. Thus, the plaintiff did not satisfy the

requirements of Supreme Court Rule 191. His comments

were mere argument and did not raise a sufficient factual

assertion to prevent the trial court from deciding the issue

as a matter of law. The plaintiff has waived this issue for

appeal.

The plaintiff cites Toepper v. Brookwood Country Club

Road Association (1990), 204 Ill. App.3d 479, 149 Ill. Dec.

585, 561 N.E.2d 1281, as supporting his claim that he did

not commit waiver. This case, however, is inapplicable

here. In Toepper, we determined that the plaintiffs did

not waive an argument for purposes of appeal when they

first raised the issue during oral arguments on a motion

for judgment on the pleadings. However, the plaintiffs in

Toepper raised that same issue again during argument on

a motion before the trial court to reconsider entry of

judgment on the pleadings. Three years later, the

plaintiffs incorporated that issue in their response to

renewed motions for judgment on the pleadings.

(Toepper, 204 Ill.App.3d at 490, 149 Ill Dec. 585, 561

N.E.2d 1281.) Thus, the opponents in Toepper, and the

trial court which considered the issue, clearly had ample

opportunity to consider the merits of the argument.

(6] Further, the issue in Toepper was raised in a motion

for judgment on the pleadings pursuant to section 2-615(e)

of the Code. (735 ILCS 5/2-615(e) (West 1992).) The

767] to a motion for summary judgment under section 2-

1005. Supreme Court Rule 191, as we have noted,

requires that factual assertions made pursuant to

A-34

summary judgment motions under section 2-1005 be

contained in affidavits based on personal knowledge.

Supreme Court Rule 191 does not apply to section 2-615(e)

motions for judgment on the pleadings.

(7}(8] Additionally, while we are bound to follow

Federal case law which interprets Federal statutes

(Templeton v. Chicago & North Western Transportation

Co. (1991), 211 IL App.3d 489, 495, 155 Ill. Dec. 954, 570

N.E.2d 467), the plaintiff has cited no Federal cases or

other authority which passes on the validity of the Safety

Commission's labeling requirements for methylene

chloride. We note that the defendants’ counsel countered

the plaintiff's contentions during the summary judgment

hearing. Defendants’ counsel contended that the Safety

Commission's rules were valid because they complied with

a summary procedure permitted under Federal law. This

argument was not supported by a Rule 191 affidavit nor

by citation to case law. However, in the absence of a clear

statement in any Federal statute or case law that this

particular regulation is void, we will assume that a

facially valid regulation is binding.

We next consider the plaintiff's contention that his

State-law cause of action is not preempted because his

wife died from an ailment not covered by the warning

label required by the Safety Commission for methylene

chloride products. We first note the general principles of

Federal preemption.

(9}(10}(11] The supremacy clause of the United States

Constitution mandates that any State law which conflicts

with Federal law is without effect. (Farner v. Brunswick

Corp. (1992), 239 Ill App.3d 885, 889, 180 Ill. Dec. 493,

607 N.F 2d 562.) Our preemption analysis begins with

the assumption that the h.storic police powers of the State

A-35

are not to be superseded by Federal law unless that is "the

clear and manifest purpose of Congress." (Farner, 239

Ill. App.3d at 889, 180 Ill Dec. 493, 607 N.E.2d 562.)

Thus, the *843 [206 Ill Dec. 75] ultimate question in any

preemption analysis is to determine the intent of

Congress, which may be stated expressly in the statute's

language or implied in the Federal law's structure and

purpose. Farner, 239 Ill.App.3d at 889, 180 Ill. Dec. 493,

607 N.E.2d 562.

(268 Ill. App.3d 768] [12] Three circumstances give rise

to preemption of State law by a Federal enactment. First,

State law is preempted if the Federal statute at issue

explicitly defines the extent of preemption intended.

Second, Congress may demonstrate an intention to occupy

a field of regulation with a scheme so comprehensive that

there is no room for State supplementation. Third, State

law is preempted to the extent that it actually conflicts

with Federal law, thereby making compliance with both

State and Federal regulations impossible. Brennan v.

Wisconsin Central Ltd. (1992), 227 Ill.App.3d 1070, 1075-

76, 169 Ill. Dec. 321, 591 N.E.2d 494.

The question of whether and to what extent Federal

law preempts State law recently was revisited by the

United States Supreme Court in Cipollone v. Liggett

Group, Inc. (1992), 505 U.S. ----, 112 S.Ct. 2608, 120

L.Ed.2d 407. That case declared that a State-law claim

for damages based on the failure to warn by cigarette

manufacturers was preempted by Federal law to the

extent that the claim relied on omissions or inclusions in

advertisements or promotions. (Cipollone, 505 U.S. at ----,

112 S.Ct. at 2625, 120 L.Ed2d at 431-32.) Such

warnings, the Court determined, were preempted by

federally mandated health warnings printed on each

package of cigarettes.

en

A-36

The preemption section of the FHSA which is relevant

here provides:

"{I]f a hazardous substance or its packaging is subject

to a cautionary labeling requirement under section 2p)

or 3(b) [subsec. (p) of this section or section 1262(b) of

this title] designed to protect against a risk of illness or

ijury associated with the substance, no State or

political subdivision of a State may establish or

continue in effect a cautionary labeling requirement

applicable to such substance or packaging and designed

to protect against the injury * *

*." (Emphasis added.) 15 U.S.C. Sec. 1261 Note Sec.

18(b\ 1A) (1982).

It is uncontested that products containing methylene

chloride are subject to the cautionary labeling required by

the FHSA. Thus, the sole substantive issue presented

here is whether the warning contained on the can of Misty

paint stripper is aimed at “the same risk of illness or

injury" as that suffered by Melissa Busch.

Each can of Misty paint stripper carried the following

warning on the front label:

"WARNING

VAPOR HARMFUL, CONTENTS

UNDER PRESSURE KEEP OUT

OF REACH OF CHILDREN. Read

other precautions on back panel.”

The back panel of each can contained the following

A-37

statement:

"WARNING

Contains methylene chloride

which has been shown to cause

cancer in certain laboratory

animals. Risk to your health

depends on level and duration

of exposure."

The plaintiff contends that the Misty paint stripper

label warns only of a risk of cancer, whereas Melissa

Busch died of acute methylene(268 [ll.App.3d 769]

chloride poisoning. The precise question we face here was

answered by the Safety Commission in its report of final

rules under the FHSA, published in the October 9, 1992,

edition of the Federal Register:

"Comment. An ancillary comment was made that the

labeling requirements under the FHSA are too weak

and vague to preempt state laws.

Response. The requirements of the FHSA are not

vague. *** [Tjhe labeling must communicate to the

consumer an understanding of the potential hazard or

hazards presented by the product in order *844

{206 Ill. Dec. 76] to avoid being misbranded and

subject to legal action.

> e+ + * *& #

A-38

The cautionary labeling required under the FHSA must

present a balanced perspective of the potential hazards

of the product. Many products which may cause

chronic health effects may also be acutely toxic and

present physical hazards, such as flammability._ The

suggested labeling for methylene chloride paint

- - ;

strinpara bad to take-inta consideration the product's inhalati toxicity i iditi to _th

carcinogenicity hazard. Therefore, the suggested front

panel label statement is 'VAPOR HARMFUL ' with the

instruction ‘Read Other Cautions and HEALTH

HAZARD INFORMATION on back panel’ and the back

panel statement is ‘Contains methylene chloride, which

has been shown to cause cancer in certain laboratory

animals.' For products where the only hazard is

carcinogenicity and the evidence of increased risk of

cancer to humans is clear, the labeling would be more

straight forward." (Emphasis added.) 57 Fed.Reg.

46,664 (1992) (to be codified at 16 C.F.R. pt. 1500

(1994)).

[13][14] Although we agree with the plaintiff that the

warning label on the cans of Misty paint stripper focuses

most specifically and directly on the cancer risk, there is

no question that it tracks the language which the Safety

Commission has determined to be an adequate warning

for the exact danger experienced by Melissa Busch. As the

Safety Commission's rules are, as we noted above, facially

valid, they preempt State regulation in the area of

warning labels for the danger of acute inhalation

poisoning from methylene chloride. State regulation

includes permitting the filing of tort actions which impact

on the regulated area. (Farner, 239 Il. App.3d at 891, 180

Ill.Dec. 493, 607 N.E.2d 562.) Thus, we conclude that

a law preempts the plaintiff's State-law cause of

on.

A-39

We find unpersuasive the plaintiffs citation to a

Federal case which found no preemption by the FHSA of

a Connecticut law regulating toys designed for children

between the ages of three and seven._Toy Manufacturers

of America, Inc. v. Blumenthal (2d Cir.1993), 986 F.2d

615.

(268 Ill.App.3d 770] In Toy Manufacturers, the Court

of Appeals for the Second Circuit found that Congress

specifically declined to enact legislation regulating toys for

children in the age group governed by the Connecticut

statute. The court noted that a subsection of the FHSA

expressly states that the Federal regulation " ‘does not

apply to toys or other articles which are solely intended for

use by children 3 years of age or older.’ " (Emphasis

omitted.) (Toy Manufacturers, 986 F.2d at 621, quoting 16

C.F.R. Sec. 1501.2(c) (1992).) Connecticut passed the law

at issue in Toy Manufacturers specifically to fill in that

gap by regulating toys for children under the age of three.

Quoting the precise preemption section from the FHSA

that is applicable here (Toy Manufacturers, 986 F.2d at

618, citing 15 U.S.C. Sec. 1261 Note Sec. 18(b)(1)(A)

(1982)), the court determined that, because the FHSA and

the Connecticut statute were clearly aimed at different

age groups, the Connecticut law did not address the same

risk of illness or injury as governed by the FHSA. (Toy

Manufacturers, 986 F.2d at 623.) Further, the court

found no implied preemption, reasoning that there was a

"reliable indicium of congressional intent with respect to

state authority." (Emphasis omitted.) (Toy

Manufacturers, 986 F.2d at 624.) Here, the plain

language of the Safety Commission's published rules and

commentary clearly indicates preemption.

Although no Illinois cases have passed on the

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preemptive effect of the FHSA, we find support for our

holding in an analogous case in which this court found

preemption under similar circumstances. Farner v.

Brunswick Corp. (1992), 239 Ill.App.3d 885, 180 Ill. Dec.

493, 607 N.E.2d 562.

In Farner, we determined that a State-law products

liability complaint against the manufacturer of a boat

motor was preempted by the Federal Boat Safety Act of

1971 (Boat Act) (46 U.S.C. Sec. 4301_et seg, (1988)).

(Farner, 239 Ill.App.3d at 892, 180 Ill. Dec. 493, 607

N.E.2d 562.) The plaintiff in Farner was injured when

she was struck by a boat propeller *845. [206 Ill.Dec. 77]

which had no blade guard. We concluded that a

preemption provision within the Boat Act precluded a

State cause of action despite the existence within the Boat

Act of a so-called "savings clause," which provided:

“Compliance with this chapter [46 U.S.C. Sec. 4301_et

seq,] or standards, regulations, or orders prescribed

under this chapter [46 U.S.C. Sec. 4301_et seq.) does

not relieve a person from liability at common law or

under State law." Farner, 239 Ill.App.3d at 890, 180

Ill.Dec. 493, 607 N.E.2d 562.

Nonetheless, we found preemption based on a section

of the Boat Act which, in language similar to that in the

present matter, prohibited a State from establishing or

enforcing laws or regulations governing recreational

vessel equipment safety standards. (Farner, 239

Ill. App.3d at 891-92, 180 Ill. Dec. 493, 607 N.E.2d 562.)

We believe that the preemption section of the FHSA

similarly expresses a clear statement by Congress that

States may not establish guidelines, nor by extension

entertain tort (268 Ill. App.3d 771] actions arising out of

them, for labels which address the danger of acute

A-41

inhalation poisoning from methylene chloride.

The judgment of the circuit court of Du Page County is

affirmed.

Affirmed.

GEIGER and BOWMAN, JJ., concur.

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UNITED STATES OF AMERICA

STATE OF ILLINOIS COUNTY OF DUPAGE

IN THE CIRCUIT COURT FOR THE

EIGHTEENTH JUDICIAL CIRCUIT,

RICHARD BUSCH, As Special )

Administrator of the Estate of )

of MELISSA BUSCH, deceased, )

Plaintiff,

vs.

GRAPHIC COLOR CORPORA-

TION and AMREP, INC.,

Defendants.

No. 91L 207

A i ee

ORDER

THIS CAUSE COMING ON TO BE HEARD upon the

Motions for Summary Judgment of AMREP, INC. and

GRAPHIC COLOR CORPORATION, the Court having

considered the written and oral arguments of the parties

IT IS HEREBY ORDERED:

1) The Motion for Summary Judgment of AMREP, INC.

is granted and judgment is entered in favor of AMREP,

INC. and against the Plaintiff.

2) The Motion for Summary Judgment of GRAPHIC

COLOR CORPORATION is granted and judgment is

entered in favor of GRAPHIC COLOR

CORPORATION and against the Plaintiff.

Name: Wylie Mulherin, et al. ENTER:

DuPage Attorney No. 92700

Attorney for Graphic Color

Address: 416 E. Roosevelt _(Richard A. Lucas)

City: Wheaton, IL 60187 Judge

Phone: (708) 643-9300 Date: January 3, 1994

A-43

22

(THE COURT:)

on recreational vehicles.

It's clear here that this label satisfies the

label that the bureaucrats in Washington determined

should be found on what they determined was a

hazardous substance.

MR. SCHROEDER: May I have a brief response to my

invention?

THE COURT: Really brief.

MR. SCHROEDER: We're found by the terms of

what's written in the statute and what's written in their

rule that they're trying to rely on. It says that the

proposal was prompted by a concern that methylene

chloride might pose a carcinogenic risk to humans. That

was raised by tests showing that inhalation of methylene

chloride vapor increased the incidence of various types of

benign and malignant tumors in rats and mice.

MS. MC CULLOUGH: He says the proposal is

prompted, and then later they explain what it was

designed to cover.

THE COURT: [I'll grant the motion for summary

judgment. I believe this is beyond any doubt

A-44

23

preempted by the Federal Hazardous Substance Act. I've

reviewed in great detail your response, and I may as a

nonjudge agree with some of your thoughts on the matter,

Carl. But it's the law of the land. You can rap

bureaucrats till the inth degree.

A great human tragedy occurred in this

case. Maybe I'm on a roll with summary judgments lately

involving fatalities, and it brings a tear to your eye. It

truly does. But we've got to follow the law. And I think,

the law is, in my opinion, unquestionably clear. I think

you're preempted out of this court. I grant the motion for

summary judgment.

MR. VARCHETTO: I have adopted the argument on

behalf of Graphic Color as well, Your Honor.

THE COURT: Same ruling.

MR. SCHROEDER: Can I argue on that, Judge?

THE COURT: Sure.

MR. SCHROEDER: It's going to be a different issue.

THE COURT: There appears to be overlapping from

what I can see.

MR. SCHROEDER: Well, with the exception tl.at the

A-45

The Federal Hazardous Substances Act

(15 U.S.C. 1261 ff.)

§ 1261. Definitions

For the purposes of this chapter--

(d) The term "Commission" means the Consumer Product

Safety Commission.

(f) The term “hazardous substance” means:

(1XA) Any substance or mixture of substances

which (i) is toxic, (ii) is corrosive, (iii) is an

irritant, (iv) is a strong sensitizer, (v) is flammable

or combustible, or (vi) generates pressure through

decomposition, heat, or other means, if such

substance or mixture of substances may cause

‘. substantial personal injury or substantial illness

during or as a proximate result of any customary

or reasonably foreseeable handling or use,

including reasonably foreseeable ingestion by

children.

(B) Any substances which the Commission by

regulation finds, pursuant to the provisions of

section 1262(a) of this title, meet the requirements

of subparagraph (1)(A) of this paragraph.

(p) The term "misbranded hazardous substance" means a

hazardous substance . . . if the packaging or labeling of

A-46

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 (A) the name and

place of business of the manufacturer, packer,

distributor or seller; (B) the common or usual

name or the chemical name (if there be no

A-47

from the hazard, and

(2) on which any statements required under

subparagraph (1) of this paragraph are located

prominently and are in the English language in

conspicuous and legible type in contrast by

typography, layout, or color with other printed

matter on the label.

Note, effect upon Federal and State Law

common or usual name) of the hazardous

substance or of each component which contributes

substantially to its hazard, unless the Commission

by regulation permits or requires the use of a

recognized generic name; (C) the signal word

Pub.L. 86-613, § 18, formerly 17, July 12, 1960, 74 Stat.

380, as amended Pub.L. 89-756, § 4(a), Nov. 3, 1966, 80

Stat. 1305; renumbered and amended Pub.L. 91-113, §

4(a), (bX 1), Nov. 6, 1969, 83 Stat. 189, 190; Pub.L. 94-284,

"DANGER" on substances which are extremely

§ 17(a), May 11, 1976, 90 Stat. 510, provided that:

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; (I) instructions for handling and storage

of packages which require special care in handling

or storage; and (J) the statement (i) "Keep out of

the reach of children" or its practical equivalent,

or, (ii) if the article is intended for use by children

and is not a banned hazardous substance,

adequate directions for the protection of children

(bX 1A) Except as provided in paragraphs (2) and

(3), if a hazardous substance or its packaging is

subject to a cautionary labeling requirement

under section 2(p) or 3(b) [subsec. (p) of this

section or section 1262(b) of this title] designed to

protect against a risk of illness or injury

associated with the substance, no State or political

subdivision of a State may establish or continue in

effect a cautionary labeling requirement

applicable to such substance or packaging and

designed to protect against the same risk of illness

or injury unless such cautionary labeling

requirement is identical to the labeling

requirement under section 2(p) or 3(b) [subsec. (p)

of this section or section 1262(b) of this title!.

§ 1262. Declaration of hazardous substances

(a) Declaration of hazardous substances by regulation;

review

A-48

(1) Whenever in the judgment of the Commission

such action will promote the objectives of this

chapter by avoiding or resolving uncertainty as to

its application, the Commission may by regulation

declare to be a hazardous substance, for the

purposes of this chapter, any substance or mixture

of substances which it finds meets the

requirements of subparagraph (1A) of section

1261(f of this title.

(2) Proceedings for the issuance, amendment, or

repeal of regulations under this subsection and

the admissibility of the record of such proceedings

in other proceedings, shall in all respects be

governed by the provisions of section 371(e), (f), -

and (g) of Title 21, except that--

(A) the Commission's order after public hearing

(acting upon objections filed to an order made

prior to hearing) shall be subject to the

requirements of section 348(f(2) of Title 21; and

(B) the scope of judicial review of such order

shall be in accordance with the fourth sentence of

paragraph (2), and with the provisions of

paragraph (3) of section 348(g) of Title 21.

(b) Reasonable variations or additional label requirements

If the Commission finds that the requirements of

section 1261(pX1) of this title are not adequate for the

protection of the public health and safety in view of the

special hazard presented by any particular hazardous

substance, it may by regulation establish such reasonable

variations or additional label requirements as it finds

necessary for the protection of the public health and

safety, and any such hazardous substance intended, or

packaged in a form suitable, for use in the household or by

A-49

children, which fails to bear a label in accordance with

such regulations shall be deemed to be a misbranded

hazardous substance.

A-50

52 FR 34698-02

NOTICES

CONSUMER PRODUCT SAFETY COMMISSION

Labeling of Certain Household Products

Containing Methylene Chloride; Statement

of Interpretation and Enforcement Policy

Monday, September 14, 1987

AGENCY: Consumer Product Safety Commission.

ACTION: Notice of interpretation and enforcement policy.

SUMMARY: The Commission [FN1) is issuing an

interpretation and a statement of enforcement policy for

household products that contain methylene chloride and

that expose consumers to significant amounts of

methylene chloride vapor. The Commission considers

such products to be hazardous substances, under the

provisions of the Federal Hazardous Substances Act,

basing its determination on animal test results that

indicate such products may pose a carcinogenic risk to

humans. Accordingly, if such products are not labeled

properly, they are misbranded hazardous substances.

This action by the Commission results from concerns

raised by tests showing that inhalation of methylene

chloride vapor can cause an increased incidence of benign

mammary tumors in male and female rats and can cause

an increased incidence of carcinomas and adenomas in

male and female mice. The evidence currently available

to the Commission shows that products in a number of

classes present sufficient exposure of consumers to

methylene chloride vapor that they should be considered

A-51

to be hazardous substances. These product classes are

named in the following enforcement policy. Additional

information may become available in the future showing

that additional products are also hazardous substances.

Once the enforcement policy becomes effective, the

Commission intends to bring individual enforcement

actions against products that are not properly labeled (or

against the products’ manufacturers, distributors, or

importers). Such actions will provide full opportunities for

the Commission's technical data and legal conclusions to

be contested. In addition, such enforcement actions will

be preceded by opportunities for industry members and

Commission staff to discuss the applicability of the

enforcement policy to particular products containing

methylene chloride.

SUPPLEMENTARY INFORMATION:

A. Background

On August 20, 1986, the Commission published a

proposed rule that would declare household products

containing other than contaminant levels of methylene

chloride to be hazardous substances. 51 FR 29778. The

proposal was prompted by a concern that methylene

chloride might pose a carcinogenic risk to humans that

was raised by tests showing that inhalation of methylene

chloride vapor increased the incidence of various types of

benign and malignant tumors in rats and mice.

eee

B. Determination of Hazardous Substance

After considering the comments on the proposed rule

described above, the Commission has concluded that the

animal test data showing increases in the incidence of

various types of benign and malignant tumors in rats and

A-52

mice are sufficient to warrant a concern that methylene

chloride may pose a carcinogenic risk to humans and that

products containing it should be considered hazardous

substances.

Rather than continue with the rulemaking, the

Commission believes it is preferable to issue this

statement of interpretation and enforcement policy. If the

rulemaking proceeding were continued, there is a

potential that there would be a subsequent adjudicatory

hearing, as well as subsequent appeals to the Commission

and to a court of appeals, which could delay the effective

date of the rule for up to several years.

As discussed below, the Commission intends to allow a

sufficient time for manufacturers to adopt revised labels

without unnecessary costs involved in overlabeling

products or discarding previously printed labels. After

that time, the Commission intends to bring individual

enforcement actions against improperly labeled products,

or against the manufacturers, distributors, or retailers of

such products. In such enforcement actions, the

defendants will have full opportunity to contest the

toxicity of methylene chloride, the exposure to consumers

presented by the particular product, or any other technical

or legal principle relied on by the Commission.

The publication of this notice expresses the Commission's

‘view that the issues raised in the proposed rule can be

best dealt with by issuing this statement of interpretation

and enforcement policy; however, it is not intended to

withdraw the proposed rule. Therefore, if it appears in

the future that voluntary compliance with the

Commission's interpretation, supported by enforcement

actions against noncomplying firms, is inadequate to

A-53

obtain uniform compliance with the FHSA, the

Commission will have the option of resuming the

rulemaking proc eding.

D. Required Labeling

General FHSA Labeling Requirements

Since the Commission has determined that hou.ehold

products which can expose consumers to methylene

chloride vapor are hazardous substances because they

may pose a carcinogenic risk to humans, such products

will be required to bear labeling that meets the

requirements of section 2(p)(1) of the FHSA.

Labeling for Potential Cancer Hazards

3. Detailed Example of Labeling for Paint Strippers

The Steering Committee for Methylene Chloride, a group

of industry and consumer interest representatives

working with the Commission's staff, previously

considered the question of labeling language that will

adequately convey to users the information needed to

enable users to protect themselves and that will also

comply with the requirements of the FHSA. The Steering

Committee recommended the following labeling for

products, such as some paint stripper 5, that contain high

percentages of methylene chloride. The Commission

believes that this labeling meets, and in certain respects

exceeds, the minimum requirements of section 2(p)\1) of

the FHSA.

[Front Panel]

A-54

CAUTION: Vapor Harmful, Read Other Cautions and

HEALTH HAZARD INFORMATION on Back Panel

lor equivalent language]

[Back Panel]

Contains methylene chloride, which has been shown to

cause cancer in certain laboratory animals. Risk to your

health depends on level and duration of exposure.

[Or equivalent language]

[The back panel labeling given above would be placed

separately from use precaution information such as the

following.]

Use this product outdoors, if possible. If you must use it

indoors, open all windows and doors or use other meais to

ensure fresh air movement during application and drying.

If properly used, a respirator may offer additional

protection.* Obtain professional advice before using.* A

dust mask does not provide protection against vapors.* Do

not use in basement or other unventilated area.

FN*The use of respirators may not be a practical way for

most consumers to protect themselves from methylene

chloride vapors. Accordingly, the Commission should

point out that the statement concerning respirators in the

above labeling example that was recommended by the

Steering Committee on Methylene Chloride is not required

by the FHSA.

Open container carefully and close after each use. Clean

up rags, papers, and waste promptly. Allow solvent to

evaporate, then dispose of in metal containers.

[Or equivalent language suitable for the particular

product involved. ]

A label such as that stated above would be required by

the potential carcinogenic inhalation hazard from paint

strippers, although some of the precautions stated also

may serve to protect against acute hazards that might be

presented. Of course, the product's labeling would also

have to meet the other requirements of the FHSA and to

A-55

address other hazards that the product may present. For

example, the label may have to address the acute toxicity

of methylene chloride, flammability hazards associated

with a product, toxic gases that can be produced by

contact with flame or hot surfaces, or the need to avoid

contact with skin or eyes because of irritant or corrosive

qualities in a product. Also, the label would have to

include, when necessary or appropriate, instructions for

first aid treatment, including instructions on actions to

take if overcome by vapors.

Also, the particular precautions about actions to be taken

or avoided that are given in the above example are

intended primarily for paint removers, and these

precautions may not apply to other products containing

methylene chloride. For example, some products may not

involve rags or other items that need to be —T of

separately.

E. Effect on State and Local Laws

Section 18(b1A) of the FHSA, 15 U.S.C. 1261n,

provides:

(bX 1A) Except as provided in paragraphs (2) and (3) [15

U.S.C. 1261n], if hazardous substance or its packaging is

subject to a cautionary labeling requireme der section

2(p) or 3(b) [15 U.S.C. 1261(p), 1262(6)] designed to

protect against a risk of illness or injury associated with

the substance, no State or political subdivision of a State

may establish or continue in effect a cautionary labeling

requirement applicable to such substance or packaging

and designed to protect against the same risk of illness or

injury unless such cautionary labeling requirement is

identical to the labeling requirement under section 2(p) or

3(b).

Under the Commission's interpretation, products that

contain methylene chloride and that expose consumers to

significant amounts of methylene chloride vapor are

A-56

hazardous substances subject to the requirements of

section 2(p1) of the FHSA. Therefore, under the terms of

section 18(bX1XA) of the FHSA, the Commission

concludes that any statutes or regulations of state or local

governments establishing cautionary labeling

requirements designed to protect against the risk are void

and unenforceable to the extent that the state or local

requirements are not identical to the requirements under

section 2(p)(1) of the FHSA.

H. Conclusion

For the reasons explained above, the Commission believes

that household products that present a significant

exposure to methylene chloride vapor are hazardous

substances due to a potential hazard of human

carcinogenicity. Labeling required by the FHSA will be

enforced in accordance with the policy explained above.

This policy is not a binding rule, but is merely a notice of

the Commission's intention to bring appropriate

enforcement actions under the FHSA. In any such actions,

any parties who disagree about whether particular

products containing methylene chloride are hazardous

substances will have the opportunity to challenge the

Commission's technical data and legal conclusions in

federal district court.

Because this enforcement policy is not a proposed or final

rule, the Regulatory Flexibility Act is inapplicable.

Further, neither the publication of this notice nor the

bringing of enforcement cases under the policy has any

significant potential for affecting the environment, and no

environmental assessment or environmental impact

statement is required.

Dated: September 9, 1987.

Sadye E. Dunn,

A-57

Secretary, Consumer Product Safety Commission.

[FR Doc. 87-21094 Filed 9-11-87; 8:45 am]