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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 810

## Text

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.
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.

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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.

A-42

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

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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.

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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]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0764%3A1. Public record. Not legal advice.