In addressing the issue of pre-emption, I am mindful that there
is a strong presumption against preemption. The doctrine of
preemption derives from the Supremacy Clause of the Constitution.
See U.S. Const. Art. VI, § 2 ("This Constitution, and the Laws
of the United States which shall be made in Perseverance thereof;
. . . shall be the Supreme Law of the Land; and the Judges in
every State shall be bound thereby, anything in the Constitution
or Laws of any State to the contrary notwithstanding."); see
also Moss v. Parks Corp., 985 F.2d at 738. A preemption analysis
"starts 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the States [are] not to be superseded by Federal Act unless that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 v.
Liggett Group, Inc., 505 U.S. 504, 517, 112 S.Ct. 2608, 120
L.Ed.2d 407 (1992) (quoting Rice v. Santa Fe Elevator Corp.,
331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).
Therefore, "the purpose of Congress is the ultimate touchstone"
of an examination of preemption claims. Malone v. White Motor
Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 55 L.Ed.2d 443 (1978)
(quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84
S.Ct. 219, 11 L.Ed.2d 179 (1963)). The intent of Congress may be
either explicit or implicit. Cipollone, 505 U.S. at 516, 112
S.Ct. 2608 (citing Jones v. Rath Packing Co., 430 U.S. 519,
525, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977)).
However, in order for a state law to be implicitly pre-empted,
the law in question must, in fact, conflict with federal law.
Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (citing Pacific Gas
& Elec. Co. v. State Energy Resources Conservation and
Development Comm'n, 461 U.S. 190, 204, 103 S.Ct. 1713, 75
L.Ed.2d 752 (1983)). Where a state law does not actually conflict
with federal law, and where Congressional preemption is not
explicit, preemption may only be found where federal law so
occupies a particular field "as to make reasonable the inference
that Congress left no room for the States to supplement it."
Cipollone, 505 U.S. at 516, 112 S.Ct. 2608 (quoting Fidelity
Fed. Sav. & Loan Assn. v. de la Cuesta, 458 U.S. 141, 153, 102
S.Ct. 3014, 73 L.Ed.2d 664 (1982)).
In the instant case, Congressional preemption of the labeling
of hazardous household products is express; there is no need to
entertain an analysis of implied preemption. Malone v. White
Motor Corp., 435 U.S. at 505, 98 S.Ct. 1185 (where Congress has
included a preemption provision that is a "reliable indicium of
congressional intent with respect to state authority" the
preemptive scope of the statute is governed by the express
language); see also California Federal Savings & Loan Assn. v.
Guerra, 479 U.S. 272, 282, 107 S.Ct. 683, 93 L.Ed.2d 613 (1987)
(where there is an express preemption provision in a statute,
"there is no need to infer congressional intent to preempt state
laws" from the other provisions of the statute). However, even
where there is an express preemption provision the Court must
still determine the "domain expressly preempted." Hawkins v.
Leslie's Pool Mart, Inc., 184 F.3d 244, 247 (3d Cir. 1999)
(quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 484, 116 S.Ct.
2240, 135 L.Ed.2d 700 (1996)).
Under Supreme Court and Third Circuit law, the appropriate
analysis in determining the "domain expressly preempted" by a
Congressional enactment "rests primarily on a `fair understanding
of congressional purpose' as discerned from the language . . .
and the `statutory framework.'" Hawkins, 184 F.3d at 248
(quoting Medtronic, 518 U.S. at 485-86, 116 S.Ct. 2240,
Cipollone, 505 U.S. at 530 n. 27, 112 S.Ct. 2608, and Gade v.
National Solid Wastes Management Ass'n, 505 U.S. 88, 98 n. 2,
112 S.Ct. 2374, 120 L.Ed.2d 73 (1992)). In addition, a preemption
analysis must integrate the "structure and purpose of the statute
as a whole," and must not interpret the preemption provision in a
manner at odds with the intent of Congress. Medtronic, 518 U.S.
at 486, 116 S.Ct. 2240 (quoting Gade, 505 U.S. at 98, 112 S.Ct.
The FHSA, originally enacted in 1960, contained no preemption
provision. The purpose of the Act 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." Moss, 985 F.2d at
739 (quoting 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). In 1966 Congress considered amendments to the Act,
having recognized the difficulty inherent in allowing states to
individually regulate the labeling of a particular hazardous
substance. In recognition of the impracticality of having 50,
potentially different, labeling requirements for a single
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. . . ." Moss, 985 F.2d at 739 (quoting 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 5 U.S.C.C.A.N. 4095, 4096). In consideration of the
aforementioned factors. Congress amended the FHSA in 1966 to add
the following preemption provision:
[I]f 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 . . . 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 a cautionary labeling
requirement is identical to the labeling
requirement under 2(p) or 3(b). . . .
15 U.S.C. § 1261(b)(1)(A) (emphasis added).
It is beyond dispute that the plain language of the above
provision preempts state laws that dictate labeling requirements
not "identical" to the regulations embodied in the FHSA. See,
e.g., Comeaux v. National Tea Co., 81 F.3d 42, 44 (5th Cir.
1996); Moss, 985 F.2d at 740. However, in the instant case,
Netherwood alleges that Parks is liable under both the FHSA and
the NJPLA for failure to warn. Although the question of whether a
private right of action exists under the FHSA is one of first
impression in this district, other courts considering the issue
have held that the FHSA does not provide a private judicial
remedy to a party injured by the introduction of a misbranded
hazardous substance into the stream of commerce. Riegel Textile
Corp. v. Celanese Corp., 649 F.2d 894, 899 (2d Cir. 1981);
Christenson v. St. Mary's Hospital, et. al., 835 F. Supp. 498,
501 (D.Minn. 1993); Palmer v. Liggett Group, Inc. et. al.,
635 F. Supp. 392, 397 (D.Mass. 1984); Wallace v. Parks Corp., et.
al., 212 A.D.2d 132, 140, 629 N.Y.S.2d 570 (1995). Persuaded by
these precedents outside the Third Circuit, I find that the FHSA
does not contain a private cause of action. Netherwood's FHSA
claim thus fails.
Netherwood further claims under the NJPLA that "because the
third party defendant inadequately labeled its product under the
FHSA, a claim also exists under the New Jersey Products Liability
Act for a failure to properly warn," or latent failure to warn.
(TPP Br. at 18). Therefore, the Court must determine whether the
preemption provision of the FHSA preempts state law tort actions
alleging non-compliance with the labeling provisions of the FHSA.
While this question has never been addressed by the Third
Circuit, the case law in other jurisdictions informs this Court's
analysis. In an action virtually identical*fn4 to the case sub
Fourth Circuit held, "[i]n an area of limited preemption such as
the FHSA, a common law tort action based upon failure to warn may
only be brought for noncompliance with existing federal labeling
requirements . . . if the plaintiff requests a label that is
`more elaborate or different' than the one required by the FHSA
and its regulations, the claim is preempted." Moss, 985 F.2d at
740 (quoting Worm v. American Cyanamid Co., 970 F.2d 1301 (4th
Cir. 1992)). Where a plaintiff alleges a violation of the federal
labeling requirements as the basis of his tort action the claim
is not preempted; but all claims premised upon labels different
from those required by the FHSA are preempted by federal law.
The Fourth Circuit based its conclusion, in large part, on its
prior analysis of 7 U.S.C. § 136, et seq., the Federal
Insecticide. Fungicide, and Rodenticide Act ("FIFRA") a federal
labeling act with a preemption provision similar to that found in
the FHSA. This Court finds the analogy to the FIFRA an apt one,
and Third Circuit law addressing the FIFRA is in accord with the
Fourth Circuit's decision in Moss. See, Hawkins v. Leslie's Pool
Mart, Inc., 184 F.3d 244 (3d Cir. 1999).
In Hawkins, the Third Circuit addressed the preemptive effect
of the FIFRA, holding that damage claims for improper labeling
under the FIFRA are preempted if they impose requirements in
addition to or different from those imposed by the EPA, the
agency charged with enforcement of the FIFRA. Hawkins, 184 F.3d
at 249 (internal citations-and quotations omitted). By analogy,
this Court holds that claims by Netherwood against Parks premised
upon labeling in addition to or different from the labeling
required under the FHSA are preempted.
It must therefore be determined whether a common law tort claim
for failure to properly label under the FHSA is preempted. In
Hawkins, 184 F.3d at 249,*fn5 the Third Circuit did not reach
the question of whether such a damages claim would be preempted
because the plaintiff in Hawkins did not claim that the
defendant failed to label its product in accordance with the
FIFRA and EPA regulations. This Court nonetheless concludes that
a state common law claim based on a failure to properly label
under the FHSA is not automatically preempted by the Act.
Hawkins, 184 F.3d at 249; Moss, 985 F.2d at 740; Gurrieri v.
William Zinsser & Co., Inc., 321 N.J. Super. 229, 242-43,
728 A.2d 832 (App. Div. 1999); Canty, 296 N.J.Super. at 84-85,
685 A.2d 1365; Wallace, 212 A.D.2d at 141, 629 N.Y.S.2d 570; Busch
v. Graphic Color Corporation, et. al., 662 N.E.2d 397 (1996)
Jenkins v. James B. Day and Co., 634 N.E.2d 998 (1994).
Therefore, in addressing the tort claim raised by Netherwood,
this Court must determine whether or not the label on the Parks
Lacquer Thinner container complied with the requirements of the
The labeling requirements of the FHSA are found in § 1261(p),
and require that the label of a hazardous product:
(1)  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 common or usual name) of the
hazardous substance or of
each component which contributes substantially to its
hazard, unless the Secretary [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,"
"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 Secretary
[Commission] pursuant to section 3
[15 U.S.C. § 1262]; (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); (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, and
(2) on which any statement 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 the other printed
matter on the label.
15 U.S.C. § 1261(p). Additional requirements for specific
chemicals appear in 15 U.S.C. § 1262(b). For the sake of brevity.
I will address only those requirements with which Netherwood
asserts Parks failed to comply.