Out Of The Box - Volume 1, Issue 1, June 2013

Proceed With Caution When Warning Product Users

For most consumer product companies, in-house counsel and risk managers can never be too careful when it comes to providing warnings or other disclosures that describe (and qualify) the potential risks and benefits associated with their products. Warning and misrepresentation litigation has become the predominant form of consumer product litigation in the United States. While most manufacturers and suppliers understand that they have some duty to warn about their products' potential dangers, crafting "adequate" warnings that will be understood and followed by product users may feel like reading tea leaves. Similarly, with the recent wave of false advertising class actions, companies are often left wondering what inadvertent omission or implied claim could be the subject of the next lawsuit.

The Duty to Warn. The origin of a manufacturer's duty to warn is derived from a fundamental principle of American tort law: a supplier of a product is liable to foreseeable users for harm that results from foreseeable product uses—or even misuses—if the supplier has reason to know of the danger, yet fails to exercise reasonable care to inform the user. Restatement (Second) of Torts, section 388.

The duty to warn exists at the time of sale, and continues after a product has been manufactured and sold if the manufacturer becomes aware of product risks thereafter revealed by user operation. A manufacturer must provide adequate instructions for safe use, and warnings as to dangers inherent in proper (and even foreseeable improper) product use. But instructions are not an appropriate substitute for adequate warnings of dangers that may be encountered if the instructions given are not followed.

Typical failure-to-warn cases involve the discrete, factual question—which often goes to the jury—of whether the warning given was adequate and whether a defendant exercised reasonable care in the issuance of the warning under the circumstances presented. A wide range of factors go into assessing the reasonableness or adequacy of a warning concerning a particular danger—including whether the danger is such that a redesign of the product is more appropriate and thus no feasible warning is adequate.

After internally identifying potential hazards associated with a product (or seeking the assistance of a risk assessment expert), the prudent manufacturer or supplier will consider the following issues in formulating product...

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