ELR Citation: ELR 20903
No(s). s. 92-1354, -1475 (4th Cir. Jan 28, 1993)

The court holds that a consumer's private tort action against a paint thinner manufacturer for noncompliance with federally mandated labeling requirements is not preempted by the Federal Hazardous Substances Labeling Act (FHSLA). The court holds that the plaintiff's common-law tort action for damages is not preempted. A common-law tort action may only be brought for noncompliance with existing federal labeling requirements, as long as the plaintiff does not seek more elaborate, stringent, or different warnings than those issued by Congress and promulgated by the Consumer Product Safety Commission. The court holds that to the extent the plaintiff seeks warnings based on state law for failure to warn, his claim is preempted by the FHSLA. The court holds that the manufacturer's warning label on its paint thinner complies with federal law. The label recites all the general warnings in accordance with the applicable federal standards.

Council for Plaintiff-Appellant
Ralph Ogden
Wilcox & Ogden
1306 Chancery Bldg., 1120 Lincoln St., Denver CO 80203
(303) 861-5501

Counsel for Defendant-Appellee
Gray T. Culbreath, Yolanda C. Courie
Collins & Lacy
1330 Lady St., Ste. 601, Columbia SC 29211
(803) 256-2660

Before RUSSELL and WILKINSON, Circuit Judges, and MORGAN, United States District Judge for the Eastern District of Virginia, sitting by designation.