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December 30, 2013 2:28 AM

The US Court of Appeals for the District of Columbia has held that The Occupational Safety and Health Administration’s (OSHA) HazCom Standard does not preempt state law, therefore allowing state lawsuits to go forward based on “failure to warn” claims.

The Court dismissed the Petition filed by the American Tort Reform Association for a definitive determination concerning Federal preemption of state court based actions. The case overrules an unpublished NJ Appellate Court decision dismissing a state based claim for “failure to warn.”  Bass v. AirProducts & Chemicals Inc., et al.Docket No. A-4542-03T3, 2006 WL 1419375, May 25, 2006 (N.J. Superior A.D.), NJ Supreme Court denied certification, 907 A.2d 1014, Sept. 8, 2006.

The Court reasoned that the petition for review was, “….much to do about nothing.” The Court held, that while OSHA had no authority to issue an authoritative statement, OSHA could issue an interpretative statement that is not subject to notice and comment rulemaking  under the Administrative Procedures Act (APA) 5 U.S.C. § 553(b).

The HazCom Standard establishes labeling requirements for chemicals used in the workplace. 29 C.F.R. § 1910.1200(a)(2).

American Tort Reform Association v. OSHA, et al., Docket No. 12-1229 (2013 D.C. Cir.)  Decided: December 27, 2013.





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