Chapter 11 Product Advertising and Liability
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Transcript of Chapter 11 Product Advertising and Liability
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Its Legal, Ethical &Global Environment 6th Ed.
Its Legal, Ethical &Global Environment 6th Ed.
B U S I N E S SB U S I N E S S
MARIANNE M. JENNINGS
Copyright ©2003 by West Legal Studies in Business, a division of Thomson Learning. All rights reserved.
Chapter 11Product Advertising
and Liability
Chapter 11Product Advertising
and Liability
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Development of Product LiabilityDevelopment of Product Liability
Initially No Liability for the SellerCourts followed a theory of Caveat
Emptor (‘Let the buyer beware’)
Caveat Emptor Removed in Section 402A of the Restatement of TortsLaw has swung from no liability to
almost per se liability.
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Advertising as a Contract Basis for Product LiabilityAdvertising as a Contract Basis for Product Liability
Express WarrantiesCreation
• Affirmation of fact or promise of performance (samples, model, descriptions)
Restriction• Must be part of the basis of the bargain
Disclaimer• Cannot make a disclaimer inconsistent with
an express warranty
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Case 11.1 Castro v. QVC Network, Inc. (1998)Was the pan represented as suitable for
roasting a 25 lb. Turkey?What is the relationship between tort
liability and warranty liability?Did the pan pass the risk/utility test?
Case 11.1 Castro v. QVC Network, Inc. (1998)Was the pan represented as suitable for
roasting a 25 lb. Turkey?What is the relationship between tort
liability and warranty liability?Did the pan pass the risk/utility test?
Advertising as a Contract Basis for Product LiabilityAdvertising as a Contract Basis for Product Liability
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Federal Regulation of Warranties and
Advertising
Federal Regulation of Warranties and
AdvertisingFederal Trade Commission Act
Authorizes FTC as Enforcement Agency Passed in 1914 Federal Trade Commission given broad
authorityRequires regulation of “unfair and
deceptive trade practices”
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Federal Regulation of Warranties and
Advertising
Federal Regulation of Warranties and
AdvertisingFTC broadened by Wheeler-Lea Act of
1938 “Is public deceived?” standard Not limited to adverse impact on
competition
FTC Improvements Act of 1980Put some restrictions on FTC regulation
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Types of FTC RegulationContent control and accuracy
• “No aspirin,” “aspirin free,” all dairy products, and so on (like express warranties)
Performance claims • Advertiser must be able to prove claim
Corrective advertising• FTC has required corrective advertising when
unsubstantiated claims have been made.
Federal Regulation of Warranties and
Advertising
Federal Regulation of Warranties and
Advertising
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Case 11.2 Warner-Lambert Co. v. FTC (1977)What proposals for corrective advertising
are made in the order?What modification in the order does the
court make?
Federal Regulation of Warranties and
Advertising
Federal Regulation of Warranties and
Advertising
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Types of FTC RegulationCelebrity endorsements
• Celebrity must have used the product• If the celebrity has not used the product, the
source of claims must be givenBait and switch
• Prohibits advertising cheaper product and then getting customers to buy the more expensive product
Federal Regulation of Warranties and
Advertising
Federal Regulation of Warranties and
Advertising
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Types of FTC RegulationProduct comparisons
• FTC took a laissez-faire approach during the 1980s
• It encouraged comparisons • Congress amended trademark law in 1989 to
allow competitors to bring suit for deceptive statements about products in competitor’s ads
Federal Regulation of Warranties and
Advertising
Federal Regulation of Warranties and
Advertising
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Case 11.3 S.C. Johnson v. Clorox Co. (2001)What was the standard to determine the
truthfulness of the Clorox Glad Lock ad?What is the Lanham Act?How were customers being misled about
the ads?
Case 11.3 S.C. Johnson v. Clorox Co. (2001)What was the standard to determine the
truthfulness of the Clorox Glad Lock ad?What is the Lanham Act?How were customers being misled about
the ads?
Federal Regulation of Warranties and
Advertising
Federal Regulation of Warranties and
Advertising
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Types of FTC RegulationFTC remedies
• Consent decree is a negotiated settlement
Ad Regulation by FDAFDA is regulating more as more
prescription medications are directly advertised
Federal Regulation of Warranties and
Advertising
Federal Regulation of Warranties and
Advertising
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State Regulation of AdvertisingState Regulation of Advertising
Professional AdsMost states have limitations on the types
of ads used by professionals
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Types of Product Related Accidents
Types of Product Related Accidents
3%
3%
4%
8%
9%
9%
10%
15%
18%
21%Toys/Sports/etc.
Household
Industrial Equipment
Heavy Equipment
Knives
Construction Material
Minerals/Chemicals
Building/Mine Structure
Heavy Objects
Other
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Contract Product Liability Theories: Implied
Warranties
Contract Product Liability Theories: Implied
WarrantiesImplied Warranty of Merchantability
(§ 2-314)Given in every sale of goods by a
merchantGoods are fit for ordinary purposes
Average quality with adequate packaging
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Contract Product Liability Theories: Implied
Warranties
Contract Product Liability Theories: Implied
WarrantiesCase 11.4 Mexicali Rose v. Superior
Court (1992)What is the foreign-natural test?What is the reasonable expectation test?Which test is better?
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Contract Product Liability Theories: Implied
Warranties
Contract Product Liability Theories: Implied
WarrantiesImplied Warranty of Fitness for a
Particular Purpose (§ 2-315)Requirements
• Seller has particular skill or judgment• Buyer is relying on that skill or judgment
• Seller knows or has reason to know of
reliance • Seller makes recommendation to buyer
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Contract Product Liability Theories: Implied
Warranties
Contract Product Liability Theories: Implied
WarrantiesEliminating Warranties by Disclaimers
Can disclaims both implied warranties by using “with all faults,” “as they stand,” “as is”
Can also disclaim by using the names of both warranties in clear language
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Contract Product Liability Theories: Implied
Warranties
Contract Product Liability Theories: Implied
WarrantiesPrivity Standards (§ 2-318)
Privity at buyer level—three code alternatives• Alternative A—buyer, members of
household, and guests • Alternative B—any natural person expected
to use goods • Alternative C—extends to any person
expected to use the goods
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Tort Liability: Product Liability Under Section
402A
Tort Liability: Product Liability Under Section
402AStrict Tort Liability (§ 402A)
Defendant had duty to manufacture a reasonably safe product/was in the business of selling or manufacturing product
That duty was breachedBreach of duty caused plaintiff’s injury
(product reached plaintiff in same condition)Foreseeable that defect would cause injuryPlaintiff has property or physical damages
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Tort Liability: Product Liability Under Section
402A
Tort Liability: Product Liability Under Section
402AUnreasonably Dangerous Defective
ConditionDesign defectImproper warnings or insufficient
instructionsNegligent packaging, manufacturing, or
handling • Example: Drug tampering/food tampering
cases
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Tort Liability: Product Liability Under Section
402A
Tort Liability: Product Liability Under Section
402ACase 11.5 Schoen v. Spotlight
Co., Inc. (1997)Did the nightgown meet federal
standards for children’s sleepwearWhat liability theories were proposed
again Spotlight and Wal-Mart
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Tort Liability: Product Liability Under Section
402A
Tort Liability: Product Liability Under Section
402AManufacturing, Handling, or Processing
ErrorProduct must be properly manufactured,
handled and packaged to avoid liability
Reaching the Buyer in the Same ConditionNo substantial change in product design that
caused malfunction or injuryProduct not tampered with during distribution
Manufacturing, Handling, or Processing ErrorProduct must be properly manufactured,
handled and packaged to avoid liability
Reaching the Buyer in the Same ConditionNo substantial change in product design that
caused malfunction or injuryProduct not tampered with during distribution
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Tort Liability: Product Liability Under Section
402A
Tort Liability: Product Liability Under Section
402ARequirement of a Seller Engaged in a
BusinessNeed not be a merchantNeed not be “in the business” of selling
that product• Example: peanuts sold at games by a
baseball clubIn some cases recovery has been allowed
against groups of sellers.
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Negligence : A Second Tort
for Product Liability
Negligence : A Second Tort
for Product LiabilitySuits Based on Negligence
Same elements as strict tort liability plus prior knowledge of defective condition
Punitive damages if plaintiff can show manufacturer/seller knew of defect
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Privity Issues Tort Theories
of Product Liability
Privity Issues Tort Theories
of Product LiabilityDoes not require privity of contractWas injury to that party foreseeableShould anticipate household use,
presence of children, and so on
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Defenses to Product Liability Torts
Defenses to Product Liability Torts
Misuse or abnormal use: Exceeding weight limitations, using around flames
Contributory negligence: complete defense that overlaps with misuse
Comparative Negligence: reduces the amount of recovery.
Assumption of riskPlaintiff aware of danger Does it anyway
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Defenses to Product Liability Torts
Defenses to Product Liability Torts
Case 11.6 Binakonsky v. Ford Motor Co. (1998)What role does Binakonsky’s blood-
alcohol level play in the case?If Binakonsky would have died
regardless of the design, should there be recovered under product liability?
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Product Liability ReformProduct Liability Reform
Movement Toward ReformVerdicts and costs affect international
competitivenessCongress has made efforts to make laws
uniformBusinesses need to focus on prevention
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Federal StandardsFederal Standards
Consumer Product Safety CommissionFederal Penalties of $2,000 per ViolationUp to $500,000 Maximum (willful
violations carry $50,000 and/or 1 year)Uniform Product Liability Law
The Department of Commerce has tried to get states to adopt uniform product liability laws
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International Issues in Product Liability
International Issues in Product Liability
EU Trying to Gain Uniformity“State-of-the-Art” Defense
• Product as good as it can be upon release
International Standards Organization’s 9000 guidelines for quality assurance