PRODUCT SAFETY

Product safety is part of a broad consumer movement commonly referred to as consumerism. Consumerism refers to a number of activities designed to protect consumers from a wide range of practices that can infringe on their rights and in some cases their safety in the marketplace. The consumer movement is generally supported by consumers, many business organizations, and various levels and branches of government—most especially the judicial branch, but also in the executive and legislative branches to varying degrees.

Product safety refers to the production, distribution, and sale of products that from various perspectives are either potentially unsafe or inherently unsafe to consumer use. Reasons for a product being unsafe include design defects, misrepresentation as to use, or the absence of adequate warnings as to potential dangers and hazards of the product even when it is used as intended. Product safety and product liability are inseparable. Product liability is concerned with the legal responsibility for injuries caused by one or more of the above factors. If an injury occurs through the use of a product the producer is offered, as prescribed by law and judicial precedent, various defenses. Generally speaking sellers and manufacturers are expected, as also prescribed by law and judicial precedent, to provide adequate instructions and warnings regarding a products use.

Consumer protection per se is not a current phenomena. There are references in the Bible to merchants maintaining fair standards and then are similar references in Hammurabi's code of ancient Babylonia. The ancient Romans had laws to protect consumers and they have come to be known in consumer and business circles for the Latin phrase caveat emptor —-let the buyer beware." Consumers have always, to one degree or another, been concerned about the products they buy in the marketplace. In terms of the development of consumer protection in the United States there are three distinct periods that ultimately led to the current status of product safety.

The first period, between 1879 and 1905, is often referred to as the Muckraking Era. The name is taken from the term muckrakers, which was coined to describe newspaper reporters who exposed various business abuses and violations. As a result of these exposes a number of bills were introduced in Congress to regulate the sale of food and drugs. These bills, however, resulted from the work of small groups of consumer advocates and were met with apathy by the general public and Congress. This apathy, coupled with the political and judicial clout enjoyed by business, meant that no significant legislative action was taken on the consumer front during these years. Much of this apathy dissipated in 1905, however, with publication of The Jungle by Upton Sinclair. Sinclair's book, although fiction, was a sordid expose of the Chicago meat packing industry. The book provided gruesome details of the way meat was processed under dangerous and unsanitary conditions. This book, more than any other single event, jolted the public out of its apathy and made the need for consumer protection apparent to many people. Congress responded by passing the following public policy measures: Pure Food and Drug Act (1905); Federal Meat Inspection Act (1907); Federal Trade Commission Act (1914); and the Water Power Act (1920).

The next era, known as the Information Era, began in the 1930s, and was sparked by a book called Your Money's Worth written by Stuart Chase and F.J. Schlink. This book pictured the consumer as sort of an "Alice" in a "Wonderland" of conflicting product claims and bright promises. It focused on the advertising and packaging that inundated the consumer with information designed to sell a product rather than help the consumer make an intelligent decision. (In 1957 and 1960 Vance Packard would write The Hidden Persuaders and The Wastemakers, both best selling exposes of the advertising industry.) Your Money's Worth made a plea for impartial product testing agencies that had no vested interest in the product and thus could supply the consumer with objective and trustworthy information about the performance of the product. The 1930s, then, saw the development of independent product testing agencies, such as Consumers Union, that would test products and publish the results. In addition, the following important public policy measures were also passed in the 1930s: Food, Drug, and Cosmetic Act (1938); and the Wool Products Labeling Act of 1939.

The modern consumer movement began in 1965 with the publication of another book, Ralph Nader's Unsafe at Any Speed. Nader's book severely criticized the Chevrolet Corvair and accused its maker, General Motors, of a lack of concern for automobile safety and the safety of its automobile's occupants. The issue received national attention when it became public knowledge that General Motors had hired private investigators to follow Nader and investigate him while he was a witness before a Senate subcommittee. The time was ripe for a new consumer movement concerned with a range of issues that affected an increasingly affluent and educated populace, a technologically sophisticated marketplace, and a society that had high expectations and aspirations for the fulfillment of its needs. The increasing complexity of many modern products made it difficult for the average consumer to make rational choices, and many products were virtually impossible for the average consumer to repair should they break. During the latter half of the 1960s and early 1970s, Congress passed dozens of pro-consumer laws. The most significant piece of consumer legislation was the Consumer Product Safety Act, which was signed into law on October 27, 1972 by President Richard Nixon. This act created the Consumer Product Safety Commission, an independent federal agency intended to protect the public against unreasonable risk of injury associated with a wide range of consumer products.

Consumer rights and product safety as a legal concept pre-dates by centuries the creation of the Consumer Product Safety Commission. The theologian Aquinas (1225-1274 A.D.) asks, "Is a sale rendered unlawful by a defect in the thing sold?" He answers that a defect in kind, quantity, or quality if known by the seller and not revealed to the buyer voids the sale and is fraud and sin. The seller is thus bound to recompense the buyer. If the defect was unknown to the seller then it is not fraud but the seller must still make good to the buyer. The seller is also obliged to reveal secret flaws in the good "… that may occasion loss through a decrease in value of the article or danger through the ware becoming harmful in use." If the flaw, however, is "manifest" the seller is not bound to reveal it as according to the ancient adage "a buyer's eye is his merchant where the defect is obvious."

In the United States a significant body of law has come into being that is concerned with product safety and product liability and the legal rights of both the consumer and the producer or seller of the product. Product safety law is regulatory law and consists of a system of rules and regulations promulgated by legislation and administrative agencies. All levels of government—local, state, and federal—contribute to the body of product liability and product safety law. Municipal authority, for instance, may require a minimum gauge of electrical wire to be used in new building construction, while states often regulate usage of such things as life preservers on its waters. Numerous federal agencies regulate standards for everything from automobiles to meat, poultry, and eggs.

Product safety law operates ex ante by seeking to prevent accidents, injuries, or disease before they occur. Product liability law, however, regulates the private litigation of accidents and injury due to product defects, et al. and thus functions ex post, or after an accident or injury has occurred, according to David Owen, Professor of Law at the University of South Carolina.

Generally speaking, a product is considered to be tangible personal property often referred to as a "good" or "chattel." Product liability, however, also includes such intangible goods as electricity coursing through the wires in a home, natural products such as a pet skunk, and "writings" such as aircraft navigational charts. Liability is generally imposed against a product's supplier when injuries are caused by a defective product. Product liability also applies to products that are not defective but are involved in "negligent entrustment." Selling a knife or slingshot to a small child could, for instance, make a merchant liable for negligent entrustment. Product liability also applies to situations in which a product's capabilities are misstated or when a supplied product constitutes an abnormally dangerous activity. A shattered windshield that was said to be shatterproof is an example of the former and delivering gasoline in a leaky container could constitute an abnormally dangerous activity. "A product that is harmful—because of defendant's negligence, misrepresentation, or abnormally dangerous conduct—is a defective product in the context of its use," according to Jerry Phillips, Professor of Law, University of Tennessee.

There are generally three types of defective products: those with manufacturing or production flaws, those with design defects, and those accompanied by defective or insufficient warnings or instructions. Manufacturing or production flaws may be attributed to physical flaws in the raw materials or components used to make the product or mistakes made in assembling the product. When product failure results in an injury and a product liability case results the crucial issue is: "Whether the product's defective condition is attributable to mismanufacture or to some other cause—such as normal wear and tear, abuse by the user, or perhaps even to the accident itself," according to Owen.

Defective design is a troubling aspect of product liability law and the question: "How safe is safe enough?" goes to the heart of the matter. It is troubling for the consumer side because it raises social issues such as personal responsibility and it is troubling to manufacturers because there is a potential to condemn an entire production line unlike manufacturing or production flaws which can be more easily corrected. Most design defect cases are brought over the absence of or deficiency in safety devices such as guards on power tools or lawn mowers. Design defect cases may, however, be concerned with other things such as the absence of flame retardant chemicals on clothing, unnecessarily caustic chemicals in products such as drain cleaners, or metals that are lacking temper and thus prone to failure due to softness.

A lack of adequate warnings and instructions accompanying a product also falls under the purview of product liability. A manufacturer is obligated to provide such material with products being sold. Ironically, it is often less expensive for manufacturers to provide warnings than it is to redesign a product with safety problems, and conversely it is often easier for a plaintiff to successfully attack a manufacturer's warnings and instructions as being deficient than it is to prove a product has an inherently defective design. Another aspect, however, is the growing concept in product liability law of the right of the consumer to "determine his own fate" vis-a-vis product warnings. The rationale for this reasoning was given in a 1974 court decision: "The user or consumer is entitled to make his own choice as to whether the product's utility or benefits justify exposing himself to the risks of harm. Thus, a true choice situation arises, and a duty to warn attaches, whenever a reasonable man would want to be informed of the risk in order to decide whether to expose himself to it." (see Owen: Borel v. Fibreboard Paper Products Corp.) Thus a consumer who is fully informed as to the risks of using a product may choose to modify or limit usage, use the product with full knowledge of the risks involved, or not use the product at all.

"Every transaction," according to Owen, "implies a decision about safety costs and benefits." Consumers are generally more concerned with cost, performance, ease of use, and appearance then they are with safety—at least until an injury occurs. Manufacturers are of course concerned with the production and marketing cost of a product and subsequent salability. Both the consumer and the producer thus trade off certain costs and benefits. "Because absolute safety is unattainable and because every product presents some risks, the seller and buyer are compelled to decide what level of hazard is acceptable," Owen writes. Product safety and product liability laws and regulations seek to ameliorate this hazard.