Warning Labels: Are They Necessary? Do They Work?

by Charles H. Van Gorder

Risk of personal injury is a fact of life for the outdoor enthusiast, although some pursuits certainly entail greater risks than others. For manufacturers, distributors and retailers, the threat of legal liability resulting from such injuries is also an unfortunate fact of life. This article looks at one sources of such exposure to liability - product liability, and one method of reducing such exposure - the use of warning labels.

Product liability is a legal theory which can impose liability upon persons and companies in a product's "chain of distribution," including the manufacturer, distributor and retailer or lessor. In these cases, a plaintiff will argue the product was defective in some way, and that defect caused the injuries or damages suffered by the plaintiff. The alleged defect could be in the design or manufacture of the product, or in its assembly, maintenance or adjustment. Inadequate warnings or instructions for the use of the product are also a potential source of product liability. One generally recognized statement of law states that a product may be defective due to inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by providing reasonable instructions or warnings, and the omission of those renders the product not reasonably safe. Note that product liability is generally not covered by a typical commercial general liability insurance policy. Special product liability insurance should be considered by manufacturers, and perhaps by retailers as well!

Warning labels can be short and sweet, or complex. Manufacturers of climbing equipment such as carabiners, harnesses and ropes use brief warnings stating their products are for climbing and mountaineering purposes only, thus implying they are not designed for professional use by persons employed in activities involving heights (whose equipment may be required to meet OSHA requirements). Some manufacturers such as have lengthy, illustrated instructions for use attached to the product. These instructions may also include a comprehensive warning of the inherent dangers of climbing and mountaineering, as well as an acknowledgment that injury or death may result from participation in the particular activity. Disclaimers or limitations of liability are sometimes included, but may not always be enforceable.

Several years ago, following a product lability claim involving a fatality in a white water kayak, paddlesport manufacturers worked with Atlanta attorney John D'Orazio to develop a standardized warning label to be attached to all canoes, kayaks, rafts and other watercraft. The safety warning acknowledges specific risks inherent in boating activities, recommends a series of safety precautions, and gives the manufacturer's telephone number in case of questions. This label has been approved by the American National Standards Institute (ANSI). Having been adopted as a national industry standard, the question then becomes whether a manufacturer's failure to utilize the approved warning label can itself provide a basis for product liability.

In general, a manufacturer and others in the chain of distribution are responsible for providing the consumer with an adequate warning regarding the risks of using the product, and adequate instructions in how to use the product. Unless and until there is a court test of a particular warning, there is no way to be sure a warning is adequate. Adoption of a specific label as an industry standard may help tilt the scales in favor of its suitability, but is not a guarantee. If there is a recognized industry warning label, however, a manufacturer who chooses not to use it may significantly increase its exposure to potential liability. You need to be aware if there is a recognized standard in your particular industry!! In determining whether a warning label is adequate, a court will likely balance the foreseeable risks involved in using the product against the utility and cost of an effective warning. Also, be sure you know whether the federal government or your state has adopted by statute or administrative regulations specific requirements for warning labels.

The use of warning labels is only one way of reducing exposure to product liability claims.
It is particularly important for distributors and retailers to be aware of manufacturer recommen-dations for the transport, storage, assembly and use of equipment, and to comply with those recommendations. Product modification can significantly increase potential liability. If product modification are desired, obtain the manufacturer's recommendations and approval regarding such modifications. If unauthorized equipment modification is an element of an accident, not only may there be an additional basis for a retailer's liability, such modifications may act to release the manufacturer from potential exposure to product liability claims. For lessors and outfitters, a well-written release form may also provide some protection from product liability claims.

Product liability is a complex area of the law. Manufacturers should work closely with a legal advisor experienced in this field to determine what labels, warnings or instructions, if any, are necessary for specific products. Others in the chain of distribution should make sure this issue has been adequately addressed by the manufacturer. Industry trade groups, such as the Trade Association of Paddlesports, can be an effective means of addressing this issue. For further information on product liability, you are welcome to refer to the article prepared by Catherine Hansen-Stamp for the Outdoor Recreation Coalition of America (ORCA) which can be found on the Internet at <http://www.orca.org/research/irp/index.html>.

First Published August, 1999