Academic journal article Defense Counsel Journal

A Legal Guessing Game: Does U.S. Common Law Require Manufacturers and Suppliers of Consumer Products to Warn in Languages Other Than English?

Academic journal article Defense Counsel Journal

A Legal Guessing Game: Does U.S. Common Law Require Manufacturers and Suppliers of Consumer Products to Warn in Languages Other Than English?

Article excerpt

OVER the last 30 years, the United States has become increasingly diverse. (1) In turn, this increased cultural variety--much due to immigration--has coincided with a rise in the number of households that speak primary languages other than English. (2) According to U.S. Census Bureau estimates, while approximately 80% of American households still speak English only, 12.8% speak Spanish, and 7.8% speak a foreign language other than Spanish. (3) Further, members of almost 9% of American households report speaking English less than "very well." (4) Estimates vary, but it appears relatively clear that well over 100 languages are spoken in the United States. (5) Nevertheless, the dominant and de facto common language of the United States remains English, which is recognized as the official language of over 30 states, including states with large Hispanic populations like California and Florida. (6)

Why is this background significant when discussing product liability issues? Failure-to-warn theories of liability are a regular feature in these lawsuits, (7) and as the percentage of the U.S. population that do not speak English with fluency rises, it is probable that so too will the number of cases in which plaintiffs premise liability on an alleged failure to warn in their native languages. Specifically, with regard to Spanish, at least one legal scholar would like to provide plaintiffs with three "hooks" on which to premise alleged warnings liability: (1) the product was sold or used in a geographic area of dense Hispanic population; (2) the product has been marketed toward Hispanics through Spanish-language media; or (3) the product is used in an industry with a large percentage of Hispanic workers (e.g., unskilled agricultural or industrial jobs). (8)

As discussed below, it remains to be seen whether U.S. common law imposes a general duty on consumer product manufacturers and suppliers to warn in languages other than English, particularly where the product is marketed in English and sold on a national basis, and where the manufacturer(s) and supplier(s) do not target minority-language groups. (9) The Restatement (Third) of Torts: Products Liability does not directly address the issue of foreign-language warnings; although, in assessing the reasonableness of a particular warning, it does discuss as relevant factors "comprehensibility" and "the characteristics of expected user groups." Specifically, section 2(c) and its comments exemplify the usual common-law rule used to assess the adequacy of consumer product warnings:

   A product ... is defective because of
   inadequate instructions or warnings
   when the foreseeable risks of harm
   posed by the product could have been
   reduced or avoided by the provision
   of reasonable instructions or warnings
   by the seller or other distributor, or a
   predecessor in the commercial chain
   of distribution, and the omission of
   the instructions or warnings renders
   the product not reasonably safe.

   Product warnings and instructions can
   rarely communicate all potentially
   relevant information, and the ability
   of a plaintiff to imagine a
   hypothetical better warning in the
   aftermath of an accident does not
   establish that the warning actually
   accompanying the product was
   inadequate. No easy guideline exists
   for courts to adopt in assessing the
   adequacy of product warnings and
   instructions. In making their
   assessments, courts must focus on
   various factors, such as content and
   comprehensibility, intensity of
   expression, and the characteristics of
   expected user groups. (10)

In many economic endeavors-including the manufacture, sale, and support of consumer products-consistency and predictability in the rules of the market are often essential to attaining preferred outcomes. (11) Unfortunately, extant U.S. case law addressing if and when product manufacturers and suppliers are required to provide bilingual or multilingual product warnings does not lend much certainty for those seeking a clear compliance strategy. …

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