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This article has been written by Itisha Agarwal pursuing the Diploma in International Business Law from LawSikho. This article has been edited by Aatima Bhatia (Associate, Lawsikho) and Dipshi Swara (Senior Associate, Lawsikho). 

Introduction

The need for proper handling of potentially dangerous chemicals is essential for public safety. OSHA’s Globally Harmonized System of Labelling and Classification of dangerous chemicals outlines the standards for the well-being of over 43 million people who produce or handle these hazardous materials in the United States.

However, these standards are not extended to the average American customer and that’s where the Federal Hazardous Substance Act’s Labelling requirements play an essential role. If you are an organization that produces and/or sells hazardous products, then you must update and follow the outlines of label printing as per FSHA.

In this article, we will explore the labelling requirements of selling certain goods inter-state and set out the products subject to this act. We will also discuss prohibited activities under FSHLA and their effects. In the end, we will discuss and analyze penalties and civil remedies available to the consumers when the minimum requirements and guidelines of FSHA are not followed.

How did FHSLA come into existence : a brief history

The Federal Hazardous Substance Labeling Act was passed by Congress in 1960. Its sole purpose was to provide nationwide uniformity in the labelling of hazardous substances. The scope of this act was broad and ambitious still it was proven as a “sleeping giant”. Its requirements were ignored extensively by manufacturers and distributors. The American consumers failed to avail themselves of protection under this Act.

It would be difficult for a distributor to label his products separately for each state. It was firmly believed that in absence of federal law varying labelling requirements will not be adopted by the states as a multiplicity of requirements would lead to unnecessary confusion in labeling criteria.

Due to such shortcomings, congress in 1969 re-framed the labelling requirements of FHSLA.

What is FHSA?

The Federal Hazardous Substance Act (FSHA) makes it mandatory to put precautionary labelling on the containers of hazardous products to ensure consumer’s safety while storing and using such products. It provides them with immediate information and first aid remedies in case of an accident. The Act empowers the Consumer Product Safety Commission (CPSC) to ban certain products that are dangerous to the extent that labelling act requirements are not sufficient to protect the consumers.

The FSHA is a part of The United States Code included in Title 15, starting at Section 1261. Requirements as per the act, determining mandatory labelling requirements, labelling required for specific products, and what products are completely banned are all part of Title 16, part 1500 of the Federal Regulations Code.

Information to be included in warning labels of hazardous products

The Federal Hazardous Substance Labeling Act (FHSLA) defines labelling as a written display, printed or graphic matter on the container of the product. The label must be easily readable and must have complete directions to use the product properly.

It is mandatory to put labelling on the packed as well as unpacked products. It should also include warning statements like “keep out of the reach of children”.

If you are a producer of products that include hazardous substances and sell hazardous products, your prime concern should be designing high-quality commercial labels that communicate important information outlined by FHSA.

Warning labels must include the following information, written neatly and clearly in English.

  • Name and business address of seller, distributor, packer, and/or manufacturer of the product.
  • Chemical, usual, or common name for each hazardous ingredient.
  • “Danger” for corrosive or extremely flammable products.
  • Writing “Caution” or “Warning” for all hazardous products.
  • Mentioning “Poison” on the label for highly toxic products.
  • Warnings like “Keep out of the reach of children” for all hazardous products.
  • Affirmative statements like, “harmful if swallowed,” “causes burns,” “flammable,” etc.
  • Special instructions for handling or storing products.
  • Precautionary statements indicating the actions that must be taken to ensure consumer safety.
  • Instructions for first aid treatment if the product causes illness or injury.

What are the guidelines to make the label conspicuous?

According to FHSA all the essential information of the hazardous products should be visible prominently on the label and should be readable in terms of the typography, colour, and layout printed on the product. All such rules and guidelines are mentioned at 16 Code of Federal Regulations 1500. The code contains guidelines, where a single word or the statements of warning must be visible on the surface of the product or the package of the product and the remaining information may appear elsewhere on the product as well as on the package. The code also covers a variety of topics like typing size, colour, style, and literature.

How to find if a product contains hazardous substances?

A hazardous substance is defined by the federal government as “one that may cause substantial personal injury or illness during reasonable handling or use, including possible ingestion by children.” Many of our household products contain hazardous substances. If these substances are not disposed of properly can cause personal injury and problems in the environment. Therefore, it is essential to identify hazardous substances and learn how to use and handle these safely.

FHSA has given a specific definition of each hazardous substance. The Act has issued certain tests that can be performed to analyze the product for a particular hazard. The definitions and appropriate tests can be referred from the commission’s website. While evaluating a product of hazardous substance one should consider the finished product that the consumer will use, rather than individual ingredients. 

According to FHSA products are hazardous if they consists of one or more of the following hazardous properties:

  • Corrosive – A product that can cause burn injury or destroy living tissues by chemical actions. Examples: Drain cleaners, oven cleaners, and lye.
  • Irritant – A product is called an irritant if it causes injury to the part of a body that it comes in direct contact with immediately, or repeated contact if it’s not corrosive. Examples: toilet cleaners, pool chemicals, and chlorine bleach.
  • Strong sanitiser – A product that causes allergic reaction upon repeated use of a particular substance. Examples: perfumes, tars, polishes, paint, and dyes.
  • Flammable substances – Any substance that can be easily set on fire in the form of liquid, solid, or self-pressurised container. Extremely flammable, flammable, or combustible are three categories of flammable based on testing standards. Examples: hair spray, adhesives, and paint thinners.
  • Toxic substances – A product is considered toxic if it causes long term effects like cancer, birth defects, or neurotoxicity etc. Examples: insecticides, pesticides, and antifreeze.

Guidelines to evaluate exposure to a hazardous product and the risk it may cause

The Chronic Hazard Guidelines (CHG) issued by the Consumer Product Safety Commission (CPSC) comply with the FHSA in assisting the manufacturers regarding hazardous substances and handling of such products. These guidelines are added at 15 CFR 1500.135. These provide information on:

  • Daily intake of a particular product;
  • Toxicity;
  • Evaluating exposure of a toxic product;
  • Estimating the risk;
  • Risk management .

Banned hazardous substance

According to FHSA banned hazardous substances are defined and applied to two groups of substances. The first group consists of substances that are used by children such as toys or materials used in making these toys. The second group consists of products that are used in the household which are dangerous.

Certain products are exempted from the banned list. Articles that contain hazardous substances but are necessary to produce electronic, thermal or mechanical products can be exempted only if they include adequate labelling. Another category of articles that are used by children of mature age who can read and understand the warning and directions mentioned on the products e.g., chemistry sets. Fireworks are another example of products that are exempted. They must be labelled adequately to protect the consumer and minimize the purchase and usage of such products.

Penalties

A violation under FHSA can be punishable by a fine or imprisonment, or both. The act prohibits the production and selling of hazardous substances inter-state. The district courts of the United States are given jurisdiction to control violations. Any banned hazardous substance or falsely labelled substance falls under the scope of this act. The FHSA empowers the CPSC to order administrative actions and to take corrective measures to control the unreasonable risk against consumers. It also allows CPSC to conduct on-site inspections of firms for effective enforcement.

Remedies

Violation of FHSA can provide for a remedy under civil penalties as well criminal prosecution. The maximum term for conviction does not exceed one year. Determining the amount of penalty in a civil suit depends on the criteria specified in the statutes. The penalty may exceed a maximum of 1 million, depending on the number of violations under FHSA. The Federal district courts are also authorized to grant an interim injunction relief while the proceeding is pending.

Conclusion

The Federal Hazardous Substance Act’s Labelling requirements have evolved with time to include new hazardous substances. Consumers must go through the special instructions for handling or storing of products and Instructions for first aid treatment to minimise health risks associated with the product. Businesses involved in the manufacturing of such substances must follow these guidelines to ensure the well being of their consumers and avoid unnecessary legal action. 

References

  1. https://core.ac.uk/download/pdf/149262247.pdf
  2. https://www.osha.gov/sites/default/files/publications/OSHA3636.pdf
  3. https://www.issa.com/wp-content/uploads/consumer_precautionary_label.pdf
  4. https://www.cpsc.gov/Business–Manufacturing/Business-Education/Business-Guidance/FHSA-Requirements/
  5. https://www.govinfo.gov/content/pkg/CFR-2015-title16-vol2/pdf/CFR-2015-title16-vol2-part1500.pdf
  6. https://www.justice.gov/civil/consumer-protection-branch-14

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