Stay Informed

Plaintiffs seeking redress for injuries or death caused by an allegedly defective product often sue under many theories, including products liability – failure to warn, and negligence per se (i.e., a statutory violation). If the product can be characterized as a hazardous substance, plaintiffs will generally allege violations of the Hazard Communication Standards.

The Hazard Communication Standards, codified under both state and federal law, mandate that manufacturers, importers, distributors and suppliers of hazardous substances make the hazards associated with raw ingredients or finished products known to users or consumers through labels and other forms of warnings, including material safety data sheets (MSDS).

Generally, chemical manufacturers and importers are required to create labels and MSDS for each hazardous substance they import or produce. Distributors and suppliers are responsible for ensuring that their customers are provided a copy of the MSDS. Certain employers must have an MSDS for each hazardous substance used in the workplace, and such employers should ensure that their employees are properly trained in the handling of hazardous substances, including communication of the health hazards, and should provide proper ventilation and personal protective equipment, as necessary for the handing, use and storage of hazardous substances.

Among other requirements, an MSDS must state the chemical makeup of the substance, health hazards, potential routes of entry, and precautions for safe handling, use and storage. Although many companies comply with the Hazard Communication Standards, they still get sued for products liability under a failure to warn theory. So this begs the question, what is the impact of compliance with the Hazard Communication Standards on a lawsuit alleging the company failed to warn? As explained below, compliance with the Hazard Communication Standards could have a significant impact on successfully defending a failure to warn claim.

In order to prove liability in a products liability action premised upon a failure to warn theory, a plaintiff must prove (among other things) that the defendant failed to adequately warn a product user (who would not otherwise realize the danger) of the potential risks that were known or knowable at the time of distribution or sale. A plaintiff must also prove that the lack of a sufficient warning was a substantial factor in causing his or her harm.

Compliance with the Hazard Communication Standards can help a company develop affirmative defenses, specifically, comparative negligence. In California, where it is found that a plaintiff is partially responsible for his or her injuries, any recovery will be reduced by the percentage of the plaintiff’s fault. An employer’s negligence could also reduce plaintiff’s recovery. For example, if a product manufacturer, importer, distributor or supplier complies with the Hazard Communication Standards and provides appropriate warnings to a plaintiff’s employer, and that employer fails to communicate those warnings to its employee who then sues the product manufacturer, importer, distributor or supplier for failure to warn, the employer’s negligence can serve to reduce, if not eliminate, plaintiff’s recovery.

Consequently, a company’s compliance with the Hazard Communication Standards, in terms of providing proper labeling and MSDS warnings, can be prima facie evidence that the company properly warned, therefore defeating a failure to warn claim. Not only can this be used as a defense at trial, it may also be used before trial as grounds for a summary judgment or adjudication motion or to facilitate settlement.