Child-Resistant Packaging Preemption

Readers of this space know we pay close attention to how courts handle preemption in product cases.  This week, we stumbled across a new-to-us variation, by virtue of the federal Poison Prevention Packaging Act (“PPPA”), 15 U.S.C. § 1471, et seq. and its implementing regulations, 16 C.F.R. Part 1700, et seq. 

The PPPA authorizes the Consumer Product Safety Commission (CPSC) to set “standards for the special packaging of any household substance if it finds that–

(1) the degree or nature of the hazard to children in the availability of such substance, by reason of its packaging, is such that special packaging is required to protect children from serious personal injury or serious illness resulting from handling, using, or ingesting such substance; and

(2) the special packaging to be required by such standard is technically feasible, practicable, and appropriate for such substance.”

Foods, drugs, and cosmetics are expressly covered.  16 C.F.R. Part 1700.1(b)(2)(ii).  The regulatory scheme apparently works pretty well:  The CPSC notes that since it took effect, “there have been remarkable declines in reported deaths from ingestions by children of toxic household products including medications.” 

In H.H. an Infant by Parent and Natural Guardian, Robert Avallone v. L.N.K. International, Inc., No. 613433/2026, 2026 WL 3079412 (N.Y. Sup. Ct. Oct. 6, 2026), the plaintiff asserted strict liability and negligence claims after an eight-year-old child was able to open a bottle of acetaminophen and take some.

The PPPA, however, only specifies that covered products must be in packaging that is “significantly difficult for children under five years of age to open…within a reasonable time.”  15 U.S.C. § 1471(4).  Thus, the plaintiff’s allegations sought to impose a higher degree of child resistance than the PPPA requires—namely, that the packaging not only be significantly difficult for a five-year-old, but that it actually prevent access by an eight-year-old.  The age difference is significant–it’s the difference between Bluey and Avatar: The Last Airbender. So is the degree of child-proofing.

The PPPA’s express preemption provision states that:

no State or political subdivision thereof shall have any authority either to establish or continue in effect, with respect to such household substance, any standard for special packaging … which is not identical to the standard established under [the PPPA].

15 U.S.C. § 1476(a).

Because the strict liability claim depended on a packaging standard “not identical to” the PPPA’s “under five years of age” requirement, it failed to state a cognizable claim under New York law and was dismissed with prejudice.

The plaintiff’s second cause of action sounded in negligence, and alleged the bottle was defectively manufactured.  This claim also was dismissed with prejudice.

First, there was no specific defect alleged.  While the complaint had the words “defective manufacture” and “defective condition,” it did not actually identify what supposedly was wrong with the bottle or its closure system that allowed it to be opened by the child.

Second, the complaint alleged no specific duty that was violated.  The complaint had a lot of generalized words—design, assembly, inspection, testing, quality control, packaging, labeling, marketing, distribution, and so on.   But it did not spell out what specific duty, grounded in law or regulation, the defendant allegedly had breached.

Had the complaint done so, the negligence claim likely would have run into preemption as well, as the court noted that these areas are “controlled by the Federal Statute,” the PPPA.

HH is a useful, albeit brief, illustration of (1) how the PPPA can provide an express preemption defense to state-law product claims in cases related to drug packaging, and (2) the pleading rigor New York courts (sometimes) impose on defect and duty allegations.