Interpretation ID: 1984-3.43

TYPE: INTERPRETATION-NHTSA

DATE: 11/29/84

FROM: AUTHOR UNAVAILABLE; Frank Berndt; NHTSA

TO: Katten, Muchin, Zavis, Pearl & Galler

TITLE: FMVSS INTERPRETATION

TEXT:

U.S. Department of Transportation Mr. Stephen M. Neumer Katten, Muchin, Zavis, Pearl & Galler 4100 Mid-Continental Plaza 55 East Monroe Street Chicago, Illinois 60603

Dear Mr. Neumer:

This responds to Your August 28, 1984, letter to the National Highway Traffic Safety Administration (NHTSA) regarding the labeling requirements specified in paragraph 5.2.2.2 of Federal Motor Vehicle Safety Standard No. 116, Motor Vehicle Brake Fluids, for containers of brake fluid. You asked whether a label that is "permanently glued" to the container conforms to Standard No. 116. The answer to your question is no.

As you are aware, NHTSA does not pass approval on the compliance of any vehicle or equipment with a safety standard before the actual events that underlie certification. Under the National Traffic and Motor Vehicle Safety Act, the manufacturer is required to determine whether its vehicles and equipment comply with all applicable safety standards and regulations, and to certify its products in accordance with that determination. Therefore, the following statements only represent the agency's opinion based on the information provided in your letter.

In your letter you referred to the interpretation that we issued on April 3, 1984, to the Wagner Division of the McGraw-Edison Company. In that interpretation we stated that paper labels on brake fluid containers are not sufficient to comply with the "indelibly marked" requirements of the standard. We interpreted S5.2.2.2 to require the relevant information to be marked directly on the brake fluid container and not merely on a label that is affixed to the container. The agency based this interpretation on the language contained in a notice of proposed rulemaking (35 FR 15229) which proposed to allow labeling on either the brake fluid container or a label or tag attached to the container and the subsequent language in the final rule (36 FR 11987) which did not adopt the proposed alternative permitting markings on labels or tags.

Based on the clear language in Standard No. 116 and our past interpretations on labeling requirements, we are unable to concur with your interpretation that the information required on containers of brake fluids may be marked on labels "permanently glued" to the container.

Sincerely, Frank Berndt Chief Counsel

August 28, 1984

Via Air Courier Mr. Frank Berndt Chief Counsel National Highway Traffic Safety Administration 400 7th Street, S.W. Washington, D.C. 20590

Dear Mr. Berndt:

We are aware of the inquiry of the Wagner Division of McGraw-Edison Company respecting the use of the loose-fitted paper sleeve label on poly-bottles containing brake fluid and your opinion regarding that labeling process. Our client is a packager of brake fluid which, like many of the major marketers of this product, packages brake fluid in poly-bottles but with wrap-around labels permanently glued to the container. By way of background, our client has been packaging brake fluid in this manner for over six years, with millions of bottles having been sold, without one complaint of a label coming unaffixed from a poly-bottle. The labeling is accomplished by sophisticated equipment, acquired at significant cost, and, in addition, there is a quality control department, to assure the permanence of the labels.

Please note that our client does not use a loose-fitting paper sleeve, but its label is permanently glued to the poly-bottle. I have enclosed an example of this kind of container, which is widely used throughout the industry (by way of information, this is not our client's bottle).

It is our opinion that, since the ink on the label is indelibly marked on each label and each label is thereafter permanently glued to the container (not just loosely fitted to the container by sliding it on), there is compliance with Paragraph S5.2.2.2 of Motor Vehicle Safety Standard No. 116. Please confirm our opinion as soon as possible.

In advance, thank you for your attention to this matter.

Very truly yours, Stephen M. Neumer