Additives

Judging an Oil by Its Label

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A changing landscape of laws and regulations regarding lubricant packaging in the United States is making life more complicated for lubricant manufacturers and everyone else along the supply chain. Some of the sources of this angst are the usual litany of federal regulations as well as those promulgated by individual states, such as Californias Proposition 65. But ongoing action on the judicial front, such as a high-profile case involving the Dollar General stores, could make labeling as much a matter for the legal department as for the marketing department.

According to Jeff Leiter at Bassman, Mitchell, Alfano & Leiter, general counsel for the Independent Lubricant Manufacturers Association in Washington, D.C., there are labeling requirements for many kinds of lubricants-particularly for the automotive market-that flow from the National Conference on Weights and Measures. Those fundamental requirements are embodied in NIST Handbook 130: Uniform Laws and Regulations in the Areas of Legal Metrology and Fuel Quality. That document specifies method of sale and other uniform laws and regulations for lubricants, and it discusses having specific language like SAE viscosity listed on products.

Some of those particular requirements are at the center of the current controversies. Likely due to competitive pressures, some lubricant makers have continued to market non-detergent motor oils labeled as meeting API SA, which is an obsolete service category and effectively meaningless designation. In fact, it isnt an acceptable category of lubricant for automobiles made since 1930, according to the American Petroleum Institute.

While non-detergent oils were still in common use long after 1930, they have generally disappeared from the market, particularly in the case of lower-viscosity products required in most automobiles in recent decades. And yet, products with that labeling can be found in convenience stores and auto part dealers across the country.

Those issues are at the center of a lawsuit against Dollar General, which had gone so far as to place cautionary statements on the back label of the SA-type motor oil it sold. The assertion made by plaintiffs is that consumers are unlikely to read the back of the container and instead will simply buy based on the price.

Leiter said another, similar case is pending in a state court in Florida involving Amalie XCEL motor oil sold in viscosities once widely recommended for cars such as SAE 10W-40 and SAE 10W-30 but, again, marked as API SA. A class-action lawsuit accuses the company of violating Florida consumer protection laws.

Lessons from the Grocer

Leiter said the issues are similar in many ways to those that have emerged in the food industry in recent years. Kellogg, for instance, had a Cheez-It snack product that proclaimed whole grain ingredients on the label. In Manitakas v. Kellogg, consumers claimed that the label violated California and New York consumer protection laws, because the whole grain claim caused them to believe it was the predominant ingredient, which was not the case. Kellogg claimed that the ingredient list on the side panel clearly showed that whole grain was not the predominant ingredient and the trial judge agreed, dismissing the case.

Then, on appeal, the 2nd Circuit Court of Appeals reversed that determination, asserting that reasonable consumers should not be expected to consult the nutrition facts portion of a label in making their purchasing decision. To justify that position, the appeals court cited a previous court decision involving Gerber baby food (Williams v. Gerber Products, 9th Circuit), where the court said that a reasonable consumer should not be expected to look beyond misleading representation on the front label to discern truth.

However, Leiter noted, another court facing a broadly similar issue-how much Parmesan cheese should be in something labeled 100 percent Parmesan cheese-found that a reasonable consumer should be expected to review the labels as a whole. The implication, Leiter suggests, is that the definition of reasonableness is in flux, and the trend might not bode well for motor oil products that are less than forthcoming in their labeling.

If youre going to put out an API SA product and not mention that its not for use in cars after 1930 and then use pictures and words on the label that denote quality, I dont think a court or jury has to reach very far to find that unacceptable, he explained. Unfortunately, he said, many product makers look at what other companies are doing, and if they havent been challenged or sued, they simply issue a similar label for their own product.

Leiter said ILMA is in the process of working with other allied associations through the weights and measures group to deal with the issue of these obsolete oils; in other words, oils that do not meet a currently licensable API service category.

State and Federal Regulations

States, of course, are also part of the equation, and the Golden State has some of the more challenging regulations on the books, including those embodied in Proposition 65. Richard J. McNeil, environmental attorney at Crowell & Moring LLP in Irvine, California, said the proposition is wide-ranging, listing thousands of chemicals deemed hazardous in the state. Thats the bad news. With such a long list, its hard to find a product that isnt potentially impacted. However, McNeil explains, theres a bright side.

For one thing, he said, its a long list, but if you arent on the list, even if your product might actually be hazardous, you arent covered; there is no separate risk assessment.

Compliance is also fairly straightforward. Just start by comparing your material safety data sheet to the Prop. 65 list, he said. One further level of analysis involves determining whether a consumer could be exposed to a listed chemical. If a substance is fully encapsulated and a consumer couldnt be exposed to it, then you probably dont need to worry about Prop. 65 either, McNeil stated.

Finally, if you do have to comply, the warning requirements are well laid out, generally involving certain language or icons. And, on the positive side of the ledger, it is a requirement that everyone doing business in the state must adhere to, he added.

Universality-the level playing field argument-is one aspect of regulation that may make it more palatable; regulations can be helpful as a way to set rules for everyone to follow. For instance, noted David Reischer, attorney & CEO of LegalAdvice.com, an internet-based legal advice company in New York City, the Fair Packaging and Labeling Act of 1966, a law that applies to labels on many consumer products, is aimed at providing key information to allow a buyer to choose among competing products. The law requires the label to state the identity of the product, the name and address of the manufacturer, the name of the packer or distributor and the net quantity of contents contained within. Thats essentially a good business practice embedded in a federal regulation.

The law has generally been well received, notwithstanding some recent pressure by the European Union to compel metric-only labeling, Reischer said.

Yet another challenge involving labeling is currently concerning people at Flexcon, a Spencer, Massachusetts-based maker of coated and laminated films and adhesives used in labeling manufactured goods, including lubricants. According to Brian Ayers, market development specialist, the issue of concern to his company and its customers is primarily related to the opportunity to reuse drums for shipping oil and chemicals. Current labeling regulations mandate that labels be permanent.

Jim Potter, a regulatory specialist for the company, has been making some headway on the problem. He said the requirements currently aim for a label durable enough to survive (among other things) 90 days immersed in salt water. If a ship goes down and no one knows what the cargo is, they dont want a situation that could create a bio-hazard if people try to salvage or remove those drums-thats why it is so important they know what is in them, he said. But that makes removing a label so that a drum can be reused both time-consuming and expensive.

Potter has been working on the topic through a recently established standards committee led by MHI, an international trade association that represents material handling, logistics and supply chain interests. An American national standards committee has also been formed to formulate the United States position in international standards activities conducted in the ISO TC 122/WG 14 Label Material working group. Potter serves as chair of the MH10.10 committee, which has already met with the ISO label committee and the MH10/SC8 Coding and Labeling of Unit Loads committee.

Others have said theyre interested in discussing this, and we hope we can do something that meets everyones requirements, Potter added.

Lubricant makers with other products in the commercial environment also need to be mindful of regulations and labeling requirements at both the state and federal level. If you offer an allied product like antifreeze, you might have a Consumer Products Safety Commission issue associated with those products, cautioned Leiter. He also explained that both California and New York are implementing right-to-know requirements that will soon require that cleaning products, including those for automotive applications, have additional labeling and a related website with more detailed safety and handling information.

The original legislation was ostensibly designed to protect domestic workers who handle a lot of cleaning products, but the definitions are so broad it will likely impact a much wider range of products, Leiter noted. And, so far, there seems no likelihood of narrowing or clarifying those definitions.

While the regulators are unlikely to stop regulating and courts will forever attract controversies, Leiter said the industry-and the bigger manufacturers in particular-want to be transparent. So, depending on the product, they may need to implement more specific language and labeling requirements beyond weight, volume or SAE viscosity on lubricant products.

It comes down to the simple fact that these products usually come in a container, and it is important to fairly represent the contents of that container on the label; that is always the challenge, Leiter concluded.

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