Product Liability

Product Liability

Consumers have reason be to concerned these days. It seems that not a single day goes by without some consumer product being withdrawn or recalled due to a defect that makes it unreasonably dangerous to the consumer. The Consumer Product Safety Commission has many of these safety warnings posted and people with children are advised to check for recalls on a regular basis. Currently, most individual States have been allowed to develop their own law as it concerns consumer products and the civil liability corporations must face if their products injure a person. This law has developed by the State’s Legislatures or through the Court system, in what is called the common law.

A trend has been developing over the years that threatens to seriously harm consumers. This is called federal preemption. Preemption refers to a term that derives from the Supremacy Clause of the United States Constitution. Under the Supremacy Clause, no State may pass a law that attempts to override or preempt a federal law. Obviously, this is a simplification of the law. Preemption involves many legal issues but this definition helps provide a good working knowledge of preemption. The danger of preemption is that it prohibits State’s from regulating or providing remedies for their citizens when they are injured by dangerous products. Most states in the past adopted a rule from The Restatement of Torts that placed responsibility on the manufacturer or businesses in the stream of commerce who handled the dangerous product. This method spread the risk to those companies that profited from the dangerous product and permitted them to calculate the risk into the manufacturing or distribution process.

Under the Bush Administration the process has been subverted and Federal Agencies have been attempting to preemption State tort or civil laws and replace them by Federal rules or laws. This dangerous trend has taken place in the areas of environmental protection and involves the air we breathe and water we drink. It has taken place in some areas involving the crashworthiness of automobiles, and recently it has occurred in pharmaceutical drugs. In the past ten (10) years there have been many dangerous drugs placed in the stream of commerce that have injured or killed thousands of people. There were the diet drugs, diabetes drugs and cough medicines just to name a few. The individual States have dealt with these legal issues under their tort laws, usually under a “failure to warn the consumer legal theory.” At this moment there is a case pending in the United States Supreme Court that may turn the law of the State’s upside down. This is not good.

A consumer only needs to consider the number of times that there have been recalls of dangerous lettuce, tomatoes, or other vegetable products to understand that States must be allowed to protect their citizens. Recently, federal preemption was raised in the instance of canned tuna that contained dangerous levels of mercury. Fortunately, the Third Circuit Court of Appeals unanimously rejected the argument that federal law preempts personal injury failure to warn claims related to mercury poisoning.

Consumers should be alert to the dangers that consumer products can cause. It is wise to regularly check the Consumer Product Safety Commission’s website and/or some other consumer safety website. These days dangerous products seem to be released and placed in stores weekly.