By way of example, in Liebstein v. LaFarge North America, Inc., a case currently pending before a New York Federal Court, the plaintiff sued to recover damages for the chemical burns he sustained after using the defendants' cement mix. Among the plaintiff's claims was his allegation that his injuries were caused by the defendants' failure to adequately apprise or warn him of the dangers inherent in exposing his skin to the cement mix.
In a decision that was rendered on February 12, and re-printed in the New York Law Journal on February 23, the Court dismissed the plaintiff's common law (i.e., non-statutory) failure to warn claims on the grounds that the cement mix at issue in the case qualified as a "hazardous substance," and therefore, "the labeling was governed by the Federal Hazardous Substances Act ("FHSA"), 15 U.S.C. § § 1261-1278 (2000)." (The FHSA was enacted in 1960 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.)
Even assuming the plaintiff clears the initial hurdle of preemption, he is not out of the woods on his failure to warn claim; he must still prove that the difference between the language that was on the label and what should have been on the label was responsible for his accident and injuries. When you consider that this may mean splitting the hairs between DANGER! and CAUTION!, this is not a simple claim in the slightest.