The issue of whether makers of men's toiletries adequately warn consumers about the danger of flammability has flared up in the case of a Wisconsin man who was severely burned after using Brut products.

Charles Lewitzke, 81, has sued the manufacturers of Brut's Splash-On Lotion cologne and aerosol deodorant, alleging they are liable for the injuries he sustained in a May 2004 mishap at a campground.

The cologne carries the warning, “Flammable. Do not use when smoking or near fire, flame or heat.” But Lewitzke may have learned to his cost that the alcohol-containing product remains flammable for some time after it is applied.

“[T]he products were not made reasonably safe by adequate warnings and/or instructions to users,” the Milwaukee resident alleges in a suit that was originally filed in May in state court but was recently transferred to federal court.

According to the complaint, Lewitzke splashed the cologne onto his face, neck and chest and used the deodorant after his morning shave in the campground bathhouse. He then went over to his camping group's fire pit to cook breakfast.

“While doing so, the parts of his body on which he had applied the Brut products ignited, causing burns to his hands, chest and neck,” the suit says.

The labels for both the cologne and deodorant warn against use near a fire. But Lewitzke's attorney, Michael J. Hanrahan, stresses that he was not actually using either product when he ignited.

“Our view is there is no warning that after you apply it, you remain flammable for some period of time,” he told the Milwaukee Journal Sentinel. “You aren't thinking, 'I'm still flammable.'”

Flammability was also the key issue in the case of a Texas man who alleged the use of Brut's Splash-On Lotion caused him to catch fire in 1976. Arthur Lee Howard's expert testified that the product was flammable for several minutes after application, though the defense contended it would not ignite, even when moist.

A Houston jury rejected the case, finding that any failure to warn did not make the cologne unreasonably dangerous, but the Texas Court of Appeals ordered a new trial because of reversible error by the trial judge. Howard v. Fabergé, Inc., 679 S.W.2d 644 (1984).

After Howard was injured, Brut manufacturer Fabergé changed the label to read, “CAUTION: Cologne flammable until dry.” Other men's colognes such as English Leather, British Sterling and Jovan Musk also say “Flammable until dry” on their labels.

In a deodorant ignition case, the North Carolina Court of Appeals said the plaintiff had a triable case in part because “No suggestion is made [on the product label] that the contents might be flammable once they have reached their ultimate destination (i.e., armpits, etc.).” Reid v. Eckerd's Drugs, 253 S.E.2d 344 (1979).

Helen of Troy Ltd., a Texas company, now makes Brut in the U.S. after acquiring the brand from Unilever for $55 million in 2003. Its defense may hinge on how it explains the omission of the words “until dry” from its packaging.

By Matthew Heller
9/13/07