“A difficult question facing manufacturers is when — absent regulatory requirement to do so — must they warn consumers of potential, but not established, hazards associated with the use of their products. There is no set answer, but the changing legal landscape suggests that waiting for scientific consensus that a product conclusively causes harm to issue a warning may be taking on legal risk,” writes Brendan H. Fitzpatrick, a partner in Goldberg Segalla’s Toxic Tort and Environmental Practice Group.
In his article for Claims Journal, Brendan looks at the 2016 Johnson & Johnson talc rulings in St. Louis, and whether companies have a duty to warn consumers before the scientific community agrees on whether or not a substance is a danger.
“Human factors experts, researchers and even governmental regulators caution against warning of theoretical hazards. Warning of remote or hypothetical hazards will increase the number of warnings in the marketplace,” says Brendan. “Scientists suggest that as the number and prevalence of warnings increases, people will increasingly ignore warnings.” Brendan concludes by stating that while the scientific community cautions against premature warning labels, not including them may open up corporations to consumer lawsuits.
“Uncertain Risks Associated With Products May Pose Real Legal Risk for Manufacturers and Insurers,” Claims Journal, April 17, 2017