Manufacturers, distributors, and retailers are responsible for the safety of the products they sell even during the holiday season, so if you’ve been injured as a result of a dangerous or defective holiday product, your injury is their liability.
Product liability doesn’t suddenly disappear during the holiday season. While everyone works extra hard to be courteous, forgiving, and considerate during those times of the year, the joviality of Christmas and surrounding holidays doesn’t automatically mean accountability can be overlooked. A dangerous or defective product can cause serious personal injury or, even worse, wrongful death. Is it the fault of the person who bought the gift? What about the person who used the gift?
The reality is that when an unsafe product injures a consumer, the party or parties responsible for manufacturing, distributing, or selling the unsafe product can be sued for product liability.
In this article, it’s brought out that 2020 was a year dominated by the pandemic and political gridlock. So, it comes as no surprise that we saw no major product safety laws or regulations in 2020. However, it’s noted that an uptick in regulatory activity should be expected this year. Why? Because consumer product safety advocates urge the incoming Biden administration to take a more aggressive approach to product safety.
Proposed Class Action Lawsuits to Consider During the Pandemic
Ikea US Retail LLC is facing a proposed class action (PA). The popular retail store allegedly carried out a “weak” recall of dressers that are prone to tipping over and have resulted in injuries to and deaths of children. And, instead of providing cash refunds for the dressers as promised, many consumers instead received Ikea gift cards, according to the complaint.
F.D.A warns hand sanitizer company Purell to stop claiming it can prevent Ebola and the flu. The US Food and Drug Administration slapped the maker of Purell with a warning letter telling it to stop marketing the hand sanitizer as reducing or preventing diseases, including the Ebola virus and the flu. Shortly after, Purell maker Gojo Industries Inc. was sued in New York federal court by consumers seeking to represent a nationwide class claiming the Ohio-based company violated consumer protection laws by marketing its Healthcare Advanced Hand Sanitizer product line as effective for reducing the spread of viruses.
Germ-X maker sued over Coronavirus protection claims. You’re reading this right: Another hand sanitizer company was sued in california federal court allegedly of falsely claiming that its hand sanitizer germ-x can fight off the coronavirus. The reality is that Germ-X can’t protect against the coronavirus, but according to a proposed class action in California federal court, the company that makes the popular hand sanitizer, Vi-Jon, has falsely claimed that it can fight off the headline-grabbing pathogen and certain other disease-causing germs. The consumers pointed out that the advertisements of Germ-X were misleading with the use of words, images, and links.
Understanding 2020 Recalls Across the Top Five Industries
The automotive, consumer products, pharmaceuticals, food and beverage, and medical device industries carried on at a relatively normal pace in 2020, despite the COVID-19 pandemic. In that same article quoted near the beginning of this, safety issues with vehicle equipment like service brakes accounted for a majority of recalls last year for automotive companies. Lithium-ion batteries, infant and toddler products, and tip-over furniture recalls remain the top concerns for consumer product companies (just like the Ikea class action lawsuit we mentioned earlier).
The U.S. Food and Drug Administration, while focused on the COVID-19 pandemic, continued to pursue its other top priorities — tackling the opioid crisis, issuing warning letters to companies throughout the supply chain, and targeting deviations in good manufacturing practices and quality concerns in the drug manufacturing practice. In the food and beverage space, the top recall concerns continued to be undeclared allergens and bacterial contamination.
Finally, medical device recalls decreased, as the FDA shifted its focus toward addressing shortages in personal protective equipment for health care providers.
The Future: Looking Out for Gifts that Could Cause Injury
The truth is that many dangerous products are available in-store and online, including children’s toys. In its newly released report, World Against Toys Causing Harm (WATCH) says many toys contain hidden hazards unnecessarily putting children at risk of injury or death and also identified some of the safety hazards recently identified on toy store shelves and online, including toys with small parts, or fiber-like hairs with the potential for choking or ingestion injuries, a particular concern for young children.
In this article, classic toy dangers, such as small parts, strings, projectiles, toxic substances, rigid materials and inaccurate warnings and labels, shockingly continue to reappear in new generations of toys putting children at risk.
Kirstie Haslam, partner at DSC Attorneys, agrees and says that unfortunately there have been many deaths, disfigurements and disabilities inflicted upon children as a result of poorly designed and tested toys. “This is alarming considering that many of toy-related injuries are preventable,” Haslam adds.
With many shopping online this Covid-19 festive season around the world, Haslam advises parents to check for warnings and cautions on toys before giving them to a child, regardless of their location.
A Word of Product Liability For Businesses
It’s important to remember that as a business owner, you should always aim to provide the best quality products for your customers. However, the massive production of an item due to demand will measure the quality of the item you will produce. There is no possible way to guarantee every single product that you sell is good at all times.
Courts have held that a manufacturer may be relieved of liability for injury caused by a product in a defective condition unreasonably dangerous to the user or consumer or his property only if:
- The item considered as altered after it left the manufacturers control
- The modifications were not foreseeable to the producer. For example, a washing machine maker will not be liable if someone takes a bath in its washing machine and gets injured
- The changes to the product were a superseding cause of the users’ injury (the seller is not liable if a safe product is made unsafe by subsequent modifications).
Ensuring that your product is safe from risks may seem like a daunting task. However, you can begin to protect your company by incorporating the following five steps of product liability protection. Your business can begin a comprehensive product liability protection program by considering these steps from this article:
1. Transfer risk through management of suppliers. a risk transfer program helps your business avoid financial vulnerability to damages and claims due to liabilities caused or contributed to by others. without effective risk transfer, decisions of liability are often made after the fact, in court. it is much better to have such decisions documented in writing and at the beginning of a business relationship. legal agreements can be designed to assist you in transferring risk. work with a qualified attorney familiar with product liability law to draft these agreements at the beginning of a business relationship.
- Hold harmless agreements help ensure that your contractors and suppliers are contractually responsible for their own negligence and/or errors and omissions in the case of a claim.
- Statements of financial responsibility, e.g., certificates of insurance, can help your company avoid bearing financial responsibility for product-related claims by confirming that a contractor or supplier has the appropriate insurance in the case of a claim.
2. Manage supplies and imported goods. Companies that import products, components, raw materials, and sub-assemblies subsequently provided to an end user may bear sole responsibility for certain safety requirements. They may be responsible for verifying that the imported product complies with applicable industry standards and government regulations, and confirming that proper safety warnings, labels and instructions are provided for the end user. Importers should strive to gather pertinent information from suppliers that might be needed in light of these responsibilities and in the event of a subsequent claim.
3. Build safety into design. We talked about the risks of children’s toys just based on the sheer design of many. How can this be avoided? Hazards and risks can often be eliminated or controlled in the product design phase. When designing products, a safety review should take into account how a product will be used and the kind of hazards that may result… who is using the product and how? Products should comply with industry and government safety standards. Labels, warnings and instructions should adhere to these standards and be prominent, understandable and provided where applicable. A regularly scheduled safety review should confirm that products comply with the latest standards.
4. Keep essential records. Manufacturers should establish documentation policies to meet applicable regulatory requirements and business objectives, while also preparing for the possibility of product liability claims.
- Keep copies of customer design specifications and product orders, including customer signoff on final designs. Establish an engineering change order system to document any change and provide a clear and complete reason for the change.
- Develop written procedures and instructions that describe the flow of the product through the manufacturing process and quality control steps. Keep documentation to help verify the quality and conformity at each of the quality control steps.
- Establish a document retention policy to help ensure preservation of documents important to the investigation and defense of product liability claims.
5. Enable and review customer feedback. While some businesses find this to be risky in itself because of inaccurate client reviews, enabling customer feedback could help you learn about potential defects or injuries that might not have been considered before. The reality is that, every year, defective, faulty or misused products cause serious injuries, property damage, and business interruption. In extreme cases, product recalls, high-profile negative publicity, and loss of goodwill may occur. Many of these incidents can be avoided if manufacturers or distributors review the complaints and feedback from their customers. Such information can help a company take positive steps at an early stage to minimize or avoid product issues and exposures.
Understand Both Sides of Product liability (Consumer and Business) with the Right Legal Guidance
Your control of product liability may vary depending on the stage in your product’s life cycle. During development and production, you have a significant opportunity to build in safeguards against potential liability claims.
At Raynes | Erickson, our litigation team has the expertise to protect and represent clients throughout Southern California and the Inland Empire. The applicable statute of limitations is likely already running, so timing can be critically important to your case. Contact Raynes | Erickson today for a free, no obligation, confidential legal consultation.