When we think of defective products, we usually picture something that is poorly designed or inadequately manufactured. However, a product can also be considered defective if a company does not adequately inform consumers about its safe use.
Insufficient instructions or warnings are an example of a marketing defect, where failing to properly communicate with consumers poses potential risks. This type of defect can occur even if the design and manufacture of the product are not defective.
Failure to warn is a legal principle that may come up in products liability claims. This principle holds that consumers have a right to be informed about any potential hazards or risks so they can make informed decisions when using a product or choosing whether to buy it.
What responsibility does a company have to warn consumers about risks?
Since some products may present inherent dangers associated with the normal and foreseeable use of a product, companies that manufacture and sell products have a duty to warn consumers about them.
A company can be held liable in a personal injury claim if they do not provide sufficient instructions on how to use a product, as well as warnings about any potential risks. In these claims, a plaintiff must show that inadequate instructions or warnings contributed to their unsafe use of the product, which resulted in their injury.
Some examples of failure to warn include:
- Failing to update warnings with new information on potential hazards
- Failing to include labels or instructions warning about potential hazards
- Failing to warn about risks that may not be obvious to the consumer
- Using unclear or ambiguous language in instructions or warnings
- Omitting important information, including instructions on the proper storage, maintenance, and disposal of a product
- Improper placement of a warning label, such as locating it where it cannot easily be seen or only including the warning in the instruction manual or on packaging materials
Who can be held responsible for failure to warn?
Creating a product and bringing it to consumers requires a chain of distribution. When a product causes injury due to inadequate instructions or warnings, one or more of the following could be to blame:
Manufacturers
Companies that design and manufacture products are responsible for assessing the potential risks of a product and providing clear instructions and warnings about how to use the product safely.
Distributors
If a manufacturer uses a separate distribution company to deliver its products to consumers, this company may have a duty to communicate potential risks to a retailer or directly to a consumer.
Retailers
Retailers may be held liable for failure to warn if they do not make consumers aware of a product’s potential risks, do not provide products with updated warnings, or do not warn a consumer that they have modified a product in a way that introduces new risks.
Other parties can also be held responsible for failing to warn about risks, including wholesalers and suppliers. Individuals who are selling a used item generally have more limited liability but can still be held responsible if they do not warn a buyer about known defects or dangers.
Can a manufacturer still be liable if they were unaware of a risk?
Yes. Being unaware of a risk is not an acceptable defense since manufacturers have the responsibility to identify and address potential hazards before a product becomes available to consumers.
Manufacturers must go through a quality control process, including researching and testing products, to identify potential risks and make consumers aware of them. This responsibility continues after the product goes to market, as manufacturers are expected to do post-market surveillance, collect and analyze data, assess consumer feedback, and make reports to regulatory agencies. This process allows them to note any safety concerns and address them.
If a safety issue does come up after a product goes to market, a manufacturer must take reasonable actions to address it. This could include issuing a product recall and communicating with the public, as well as others in the distribution chain, about recommended actions.
When is a warning necessary?
Manufacturers aren’t expected to warn about every single scenario where the use of their product could cause injury, although they may seek added liability protection by including seemingly common sense precautions. This is why you occasionally see warnings as obvious as a jar of peanut butter with the label “Warning: contains nuts.”
In addition to providing instructions and warnings about the safe use of their product and potential risks involved in its use, manufacturers must provide warnings about the foreseeable misuse of their product. This typically addresses hazards associated with mistakes that a consumer could easily make, such as incorrectly installing a child’s car seat. Manufacturers must also advise when a product creates greater risks for certain consumer groups, such as young children or pregnant women.
A manufacturer is not expected to provide a warning if a risk is obvious or common knowledge. For example, a cutlery manufacturer doesn’t need to include a warning label on each of its knives advising that they are sharp since consumers will be aware of this fact. Warnings are also not required for simple or common objects where normal use does not create any foreseeable risks.
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