specially concurring:
I concur in the judgment of the court. I write separately because I believe that Federal legislation preempts the plaintiff’s action in its entirety.
The majority holds that the provisions of the Federal Hazardous Substances Act (FHSA) (15 U.S.C. § 1261 et seq. (1988)) preempt the plaintiff’s claim against defendant AMREP, Inc., manufacturer of Misty Paint Stripper and Decal Remover. The majority declines, however, to adopt that reasoning with respect to defendant Graphic Color, which supplied the product to the plaintiff. The majority instead concludes that Graphic Color owed no duty of care to the decedent because she was not a foreseeable user of the product. I believe that the plaintiff’s claim against Graphic Color is similarly preempted by the FHSA and, like the trial judge and appellate court, would grant summary judgment to Graphic Color on that ground. Allowing the plaintiff to proceed with his common law action against Graphic Color would be inconsistent with the preemptive features of the Federal legislation.
The preemption provision of the FHSA states:
"[I]f a hazardous substance or its packaging is subject to a cautionary labeling requirement under section 2(p) or 3(b) *** designed to protect against a risk of illness or injury associated with the substance, no State or political subdivision of a 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 cautionary labeling requirement is identical to the labeling requirement under section 2(p) or 3(b) ***.” 15 U.S.C. § 1261 note (b)(1)(A) (1988).
The gravamen of the plaintiff’s claim against Graphic Color, like that of its claim against AMREP, is the defendant’s failure to provide warnings of the dangers of Misty Paint Stripper and instructions regarding its proper use. Notably, the plaintiff does not contend that there is any basis for distinguishing between these two defendants. Nor does the plaintiff argue that Graphic Color made any special warranty or representation regarding the use of the paint stripper. Just as the plaintiff’s claim against the product manufacturer is preempted by the Federal Hazardous Substances Act, so too must be the plaintiff’s corresponding claim against Graphic Color.
Cases construing the similar preemption provision of the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq. (1988)) have held that a manufacturer may not be held liable for failing to provide point-of-sale or other warnings in addition to those that appear on the product label; the rationale for those decisions is that imposing such a requirement would improperly suggest that the label on the product itself was in some way deficient. (Taylor AG Industries v. Pure-Gro (9th Cir. 1995), 54 F.3d 555, 561; Papas v. Upjohn Co. (11th Cir. 1993), 985 F.2d 516, 519; Jenkins v. Amchem Products, Inc. (1994), 256 Kan. 602, 621-22, 886 P.2d 869, 881-82.) By the same token, in the absence of some special duty or warranty running between Graphic Color and the plaintiff, requiring Color Graphics to provide separate warnings of the product’s dangers would suggest that the manufacturer’s own label was inadequate. (See Taylor AG Industries, 54 F.3d at 561 & n.3.) To hold Graphic Color liable in these circumstances would be inconsistent with the preemptive goals of the Federal legislation. The majority correctly finds that the plaintiff’s claim against AMREP is preempted by the FHSA, and I would extend the same reasoning to the plaintiff’s claim against Graphic Color.