Academic journal article The University of Memphis Law Review

Product Recalls & the Third Restatement: Consumers Lose Twice from Defects in Products and in the Restatement Itself

Academic journal article The University of Memphis Law Review

Product Recalls & the Third Restatement: Consumers Lose Twice from Defects in Products and in the Restatement Itself

Article excerpt

I. INTRODUCTION

The product recall provisions of the Restatement (Third) of Torts: Products Liability (Third Restatement)1 should themselves be recalled, as they are dangerous to the health and security of the innocent consumer. The consequence of their adoption by a state supreme court would be that the consumer would not receive the full measure of protection which the law should provide. The facial appearance of fairness and remedies is deceptive and merits revision, either in the Restatement (Fourth) of Torts: Products Liability or as individual states consider adopting modifications of the Third Restatement.

These are harsh words of course, but the recall provisions of the Third Restatement illustrate the cynical view of the Golden Rule: "Those who own the gold make the rules." Marketers enjoy freedom from recall obligations under section 11(a)(1) of the Third Restatement.2 In states that may adopt the Third Restatement, the plaintiff whose injury could have been prevented by an effective recall is unable to use that recall as an element of products liability recovery. This Article urges that state supreme courts should disdain the laxity of section 11. A refusal to protect the consumer from post-sale harm is reprehensible and the law should penalize such inactivity. The issue represents a classic case in which a tort remedy is needed to augment the deficient regulatory regime. A duty to protect consumers from known risks should be recognized in the recall context. Conventional negligence principles would serve the public far better than this new approach permitted under the Third Restatement,

A. Definitions

A product recall is the removal from the market of a product, including a consumer's home where necessary, that is suspected of posing an acute risk of injury to consumers.3 Broadly expressed, any removal of a marketed product that seeks to address a safety risk can be considered a recall.4 Although products are removed from being sold based on factors such as their age, aesthetic qualities, or market conditions, these types of removals are not discussed when recall is addressed in this Article because these removals have neither a safety motivation nor the legal constraints that affect a safety-related decision to replace marketable products.

B. Rarity of Recalls

Until very recently, product recalls affected only a small number of regulated categories of products within the United States. Even so, the number of transactions that can be considered genuine safety recalls remains miniscule compared to the overall transactions that promote product sales. Recalls exist, but are rarely encountered in the reported case decisions. Since voluntary actions do not reach appellate courts, the courts have rarely encountered product recall issues in products liability tort cases.

C. Why Recalls Occur

The purpose of a recall is to prevent a future injury from a product that is known or suspected to be harmful to future consumers. Recalls of products are the result of errors or flaws in design or assembly of a product, although the admission of such an error is virtually never made in explicit terms by the company whose product is being retrieved. To do so would be an admission against interest in future products liability litigation.5 Indeed, the prudent company eschews the term recall and wraps its announcement in terms that disclaim seriousness of the risk.6 The product sponsor defensively defines these actions as retrievals, product withdrawals, and by other softer synonyms that spare the opprobrium that a recall would carry. For example, the regulatory definition of a recall in the rules of the Food & Drug Administration (FDA) speaks of a product that is both in violation of an FDA norm and which would have been prosecuted or acted against if it had not been voluntarily withdrawn.7 The prudent firms call their actions market withdrawals instead.8

D. Manufacturing Defect Recalls

Most recalls result from assembly or manufacturing defects for a group of products whose identifiable units did not satisfy the manufacturer's own specifications or design. …

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