The best possible product warning label is essential for the manufacturers and sellers of products in today’s markets. They need these warning labels in order to avoid warning defect liability. Warning defect is a category of product liability.

A manufacturer or seller of products has a legal duty to warn of any danger posed by either the intended or the unintended but reasonably foreseeable use of its products. This duty applies to people purchasing the product, as well as to anyone who could reasonably be expected to be harmed by its use. There are many ways to publish warnings, but attaching warning labels to products is the traditional method of fulfilling this duty.

Unfortunately merely posting a warning of the danger posed by a product may not be enough. A manufacturer may still be liable if the warning provided is not deemed to be legally “adequate.”
There are three types of defects in warning:

  • Failure to warn: no warning at all is given;
  • Failure to give a warning that is adequate: there is a warning, but it is not sufficient for a consumer to avoid the foreseeable risks of harm posed by the product and the inadequacy of the warning makes the product unreasonably unsafe;
  • Failure to adequately instruct: providing a warning of dangers does not fulfill the duty of manufacturers or sellers; they must provide instructions in safe use or operation of a product as well; instructions must allow a user to operate a product correctly; this is separate from the duty to warn. Both adequate warnings and adequate instructions are necessary.

The law today holds product manufacturers and sellers responsible only for the knowledge they had or should reasonably have had when they sold the product. Apparently the same standard applies to all product liability actions whether based on strict liability, negligence or breach of warranty, the standard applied to warnings is the same.

Thus courts currently analyze warning defects according to the “reasonableness” standard. Reasonableness does not mean that the warning has to be perfect or even the best possible. It should be a warning that a reasonably prudent manufacturer would provide under similar circumstances. Reasonable warnings provide a consumer with the opportunity to reduce or avoid the foreseeable risks of harm posed by a product.

Here are three considerations to take into account when writing a protective warning about the potential dangers of a product:

  • Be Detailed and Specific about the Nature and Danger of the Risk: For a purveyor of prepared coffee, such as McDonalds or In-N-Out, a warning such as, “Caution: Handle with Care. Contents Are Hot” might be adequate, but given the lawsuits against the fast food industry, something more specific might be called for, such as, “Contact of bare skin with the hot coffee can result in burns.”
    • A good warning should clearly identify the nature and danger of the risk, but also the behavior which could cause the injury. Be graphic about the behavior and the risks that consumers should avoid, as well as why they should avoid them i.e., the harm that can come from failing to appreciate the risk.
  • The Warnings Should Be Prominent, Clear and Understandable A warning is only effective if people see and understand it. If the purpose of the warning is to avoid product liability, placing the warning on the last page at the bottom of the instruction manual in a tiny font is counterproductive. The warning should be printed prominently in the instruction manual, on the package and in any other location where the consumer is most likely to see it. The warning should also be printed in large enough letters that it can be read easily by everyone.
    • The warnings should also be in multiple languages. They do not have to be in every possible language; clearly that would not be possible. However, it should be in the most common languages in the markets in which the manufacturers products are distributed.
    • For example, in the San Francisco Bay Area, warnings should be translated into Spanish, Tagalog, and Chinese, at least. Pictures might also be helpful, especially if assembly by the consumer is required and if assembly done improperly could create a risk of harm to the consumer.
    • Again, the manufacturer or seller can analyze the markets into which it distributes, as well as the types of users of its products and draw useful conclusions about the dominant native languages among those populations.
  • The Warnings Should Be Written in Simple Language of a Type that the Ordinary Person Can Understand: The writer of product warnings should remember that they are working to communicate effectively with average, ordinary people. So warnings should be worded in simple as opposed to compound and complex sentences. The vocabulary used should be colloquial and non-technical.
    • Does a merchant need to be a linguist to compose a warning label? Well, yes, as a matter of fact, some experts promote consultation with linguists who can deploy the tools of linguistics for analyzing the adequacy of product warnings.

Can Warranties Be Disclaimed?

Liability for the harm caused by a defective product can also be based on a theory of breach of warranty, express or implied. The law implies two types of warranties in commercial transactions involving products, the implied warranty of merchantability and the implied warranty of fitness for a particular purpose.

At one time, it was legally acceptable to disclaim implied warranties. State law in most states still allows a merchant to disclaim the the implied warranties of merchantability and fitness for a particular purpose by using the words “as is,” “with all faults,” or other language that, as commonly understood, alerts the buyer to the fact that any implied warranties are excluded. However, even if a merchant uses these words, the disclaimer of an implied warranty might not be effective.

Some states simply prohibit dealers from disclaiming implied warranties. In these states, there is no formula that a merchant can use to defeat the legal prohibition of disclaimers of implied warranties..

In states that still permit disclaimers of implied warranties, e.g. “as is” sales, federal law prohibits dealers from disclaiming implied warranties if the dealer offers a service contract within 90 days of the sale or provides a written warranty in connection with the sale. In these transactions, the dealer may limit the duration of implied warranties to the duration of any written warranty, but the dealer cannot completely disclaim implied warranties. So this federal law limits the situations in which implied warranties can be disclaimed.

Will These Warnings Actually Prevent Lawsuits?

No one can guarantee that any particular warning about a product will protect a manufacturer or seller from a product liability lawsuit. However, having the best possible warnings and instructions certainly provides a manufacturer or seller with a viable defense in the event that they are named as a defendant in such a case.

The success of the defense cannot be guaranteed, of course, but presenting evidence of a searching and professional effort to formulate and present warnings and instructions about product risks and dangers would certainly add strength to a defendant’s position in a product liability lawsuit.

Should I Hire a Lawyer?

Warning label defects can create serious risks to consumers and users of a product. You may wish to hire an experienced defective products lawyer if you need assistance with a products liability claim that involves a warning defect. Your lawyer will be able to guide you through the legal process to ensure that your rights are being represented.

But it would be a good idea to be proactive and consult an experienced product liability lawyer before you are named as a defendant in a product liability lawsuit. Consulting with a lawyer about the warnings of foreseeable risks and harms, as well as instructions for assembly or operation of products would be the best approach. Make sure your warnings are as effective as possible and the process used to arrive at them meets professional standards. This can be achieved with the assistance of an experienced product liability lawyer.