Warnings for Hazardous Chemical Products – When are They Enough?

Hazardous chemical products that are sold commercially require warnings to alert potential users of these products, as well as others who may be adversely affected by them, to the health and physical dangers posed by these products. Four federal agencies, as well as some states (California, for example) have promulgated requirements for these warnings.

In all instances, hazardous chemical product warnings are designed to alert users of the hazards associated with the intended use (and potential misuse) of the products they cover. For example, laundry detergent tabs, though often colorful and seemingly harmless, are corrosive to human tissue. Consumers who use such tabs as intended must be cautioned regarding their contact with skin and eyes. Nevertheless, there have been a large number of injuries to children who have ingested these tabs. This is most likely because they can look like toys or candy. They have suffered severe esophageal, tracheal, and lung injuries – even death – following ingestion. As a result, it’s become apparent that an unanticipated misuse of these tabs poses a danger to young children.

Likewise, concrete is a highly alkaline material that is corrosive to skin on contact. Despite this fact, it’s easy to anticipate that some of the people working with concrete will kneel in it. They’ll be under the assumption that their clothing will protect them from dermal injury. As a result, there have been numerous instances of construction workers and regular consumers suffering second and third degree burns. Accordingly, a warning to avoid contact of wet concrete with clothing is required.

Finally, chlorine bleach is commonly used as a bathroom disinfectant in bowls and sinks. Chlorine fumes are a respiratory toxin that can burn lung tissue, thus requiring a warning to that effects. However, when ammonia is added to chlorine, dangerous chloramine fumes are produced instantly. This can cause respiratory arrest and death upon inhalation. Regretfully, numerous instances of chloramine poisoning are recorded every year. This is due to the fact that people mix the two chemicals in an attempt to produce a more potent cleaner. As an anticipated misuse, a warning to not mix these chemicals together is required on both liquid bleach and liquid ammonia cleaners.

So, what constitutes a good warning? Is it the written words? The prominence of the warning presentation on the label? The graphics on the label? Or some combination of the three? The answer depends upon the nature of the product, and the regulatory body that specifies the warnings. Let us examine the four federal and the state of California regulatory requirements for warning labels.

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The United States Environmental Protection Agency (EPA) regulates all pesticide products sold in the United States under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Under FIFRA, all products that claim to kill or repel any living organism are required to be registered with EPA prior to their sale.

Registrants must prove to EPA that their products comply with the claims made, supply precise instructions for use, and contain warnings that adequately alert users to the dangers associated with their products. Product labels must be approved by the EPA prior to the sale of these products. As a result of these stringent requirements, courts have ruled that all registered pesticide products are inherently properly labeled. Consequently, law suits claiming failures to warn on pesticide products may not go forward. As a result, the only successful pesticide claims are those in which applicators have failed to follow the instructions for use printed on the labels.

Hazardous chemical products other than pesticides are defined as those that pose a health or physical danger (via flammability, for example) to users and others. The warning requirements for these products are specified by three different government agencies. Chemical products intended for commercial or industrial use are regulated by the Occupational Safety and Health Administration (OSHA). Those products intended for consumer use fall under the aegis of the Consumer Product Safety Commission (CPSC) as specified in the Federal Hazardous Substances Act (FHSA). Consumer products intended for personal care use (cosmetics and cleansers, for example) are regulated by the Food and Drug Administration (FDA).

OSHA requires that chemicals intended for commercial and industrial use contain product labels and detailed material safety data sheets (MSDS). These must fully alert the user to all hazards associated with the product’s use. It also has to outline the protective measures that must be taken to safely transport and use the product safely and without adverse environmental impacts. Unlike EPA’s requirements for pesticides, OSHA does not require pre-approval of warnings. Additionally, it does not review labels and MSDS for the adequacy of their warnings. As a result, identical products marketed by different companies often contain varying warnings on their labels and MSDS. Accordingly, the potential for successful litigation exists when injuries occur.

The Consumer Product Safety Commission (CPSC) and the FDA, like OSHA, do not require pre-approval of warnings on hazardous chemical products. The CPSC will review a proposed label for adequacy if submitted, but FDA will not. Both agencies have published warnings guidelines. However, here too different manufacturers of identical products often have varying degrees of hazard warnings on their labels. Consumer products, unlike commercial and industrial ones, are not required to have MSDS distributed to users. Since product labels have limited space, many of the warnings found in an MSDS are, of necessity, missing from consumer products, with different manufacturers deciding what to include and what to exclude from warnings. These decisions often lead to successful litigation following chemical exposure injuries as well as fires and explosions.

The state of California, under Proposition 65, has additional requirements that augment federal label warning requirements. A product that is a carcinogen or known to cause birth defects must have the following statement on its label: “WARNING: This product contains a chemical known to the state of California to cause cancer (for a carcinogen) and/or birth defects or other reproductive harm (for a teratogenic chemical).”

The following is an example of a warning that is often improperly used. Many chemicals are volatile and their vapors may cause toxic health effects and/or be flammable. Under OSHA regulations, instructions for ventilation to reduce the toxic or flammability levels to safe values are required to be precisely specified in the MSDS. For consumer products, however, the words “use with adequate ventilation” often appear on labels. These words mean little to users unless they are given specific instructions on how to determine if ventilation is adequate. If such instruction is lacking, the ventilation warning is meaningless. The user has no way of knowing if he or she is safely using the product.

Finally, there is the issue of whether the user of a hazardous chemical product actually reads the warnings, and if so, are they heeded. Put another way, is the warning delivered to the user? It is my opinion that a good warning is one that will cause the user to read it. Therefore, it should effectively scare him or her into action that prevents injury.