As products liability lawyers, we spend our days focused on the nature and proof of defectiveness.  The tort law recognizes limitations on claims that products have defects when there are obvious dangers and user conduct defenses (think drunk driving).  Contributory negligence, whether from failure to follow instructions or warnings, reckless behavior, or frankly, deliberate misuse of an otherwise safe product, is a well-recognized defense to product liability claims.  Yet misuse defenses are disfavored at the CPSC—and often labeled victim blaming—even though the defect rules written by the Commission direct the CPSC to consider the product liability law.  Recalls have been required by the CPSC in cases where the defectiveness of the product may have been beyond what a court would consider “ordinary use” under state tort law.  It can be tough going to advise a client that the CPSC expects reporting on a potential product defect when our advice can sometimes sound like we are asking them to report in the face of deliberate misuse or otherwise solve for what can seem like stupid behavior.

Last Thursday, the Acting Chairman of the U.S. Consumer Product Safety Commission (“CPSC”) Robert Adler generously spent time with interested ABA members to share his thoughts on these issues.  At a meeting of the ABA’s Administrative Law and Regulatory Practice Section, Consumer Products Regulation Committee, Chairman Adler discussed his recent law review article, “The Misuse of Product Misuse: Victim Blaming at its Worst,” co-authored by Andrew R. Popper.  The theme of his presentation could not have been clearer—if there is a reasonably foreseeable safety risk present with a product, including potential misuse, and there is a cost effective measure to address it, take action!  Adler explained that the article was inspired by his self-professed “pet peeve” of arguments that effective safety measures need not be promoted because foolish consumers are misusing products in ways that do not deserve protection.  In his words, the “penalty for stupidity” shouldn’t be death or serious injury.  He expressed his strong policy perspective that CPSC should regulate broadly for foreseeable misuse, either through rulemaking or its recall authorities.  He further expressed his view that companies must consider foreseeable misuse in designing safe products and in reporting under Section 15(b) of the Consumer Product Safety Act.

Chairman Adler drew distinctions repeatedly between the CPSC’s role in protecting the consumer versus the product liability system’s focus on compensation for injuries, noting that it’s “easier to re-design products than it is to re-design consumers.”  His position is grounded in the CPSC’s authorizing legislation, which has as its purpose “to protect the public against unreasonable risks of injury associated with consumer products.” He pointed to the Poison Prevention Packaging Act and the Refrigerator Safety Act as successful initiatives to protect consumers from unreasonable risks, even though it is clear product misuse for children to drink chemicals or to hide in abandoned refrigerators.  Chairman Adler also expressed skepticism over warnings noting that, although there is a place for warnings, they should be used as a last resort and that a redesign in the case of a potential hazard is optimal and 100% effective.

Chairman Adler welcomed dialogue on his policy perspectives.  Attendees voiced uncertainty about where lines are drawn between product misuse that manufacturers can foresee and should reasonably prevent (such as a safety standard to ensure baby walkers cannot fall down unguarded stairs) and clearly reckless behavior (such as teenagers daring each other to eat laundry detergent pods).  Others noted the concern that recalls for product misuse often have low response rates as consumers who intend to use the product properly may choose not to participate in the recall.  Chairman Adler sympathized with this concern as low response rates can be used to criticize the agency as well.  He did try to articulate a legal standard for when misuse would not require the Commission to take action—reckless behavior such that it was the proximate cause of the injury.  But, even in those cases, he stated that the CPSC would have “little obligation” to protect consumers—not a complete absence of obligation – given the CPSC’s mission to protect consumers and prevent unnecessary risks.

At the end of the day there is still no black and white standard for when industry members will be held responsible when consumer misuse of their products presents unreasonable risks of injury.  But insight into how Chairman Adler views the issue is important and the proximate cause test he articulated provides a touchstone for discussion of the issue of consumer misuse. Commissioner Adler’s article can be found in the William & Mary Business Law Review (10 William & Mary Business Law Review 337 (2019) Robert S. Adler and Andrew F. Popper).

The discussion, hosted by the ABA’s Administrative Law and Regulatory Practice Section, Consumer Products Regulation Committee, was the first of several meetings to address legal issues in consumer products regulation . To receive notices of 2020 programming, sign up for this Committee is available at here.