Excessive consumption: marketing and legal perspectives

INTRODUCTION

Firms operating in mature or highly competitive markets often develop strategies to capture market share from their competitors, or to augment market size. Under such circumstances, firms can undertake several courses of action:

1. Attract new customers into the product market. Identify segments that are not current users and develop product and promotional appeals meaningful to these consumers.(1)

2. Draw customers away from competitors. Identify competitors’ key product attributes and determine ways to provide similar benefits.(2)

3. Suggest new uses for an existing product. Identify new benefits, i.e., different use situations for current product configuration.(3)

4. Urge customers to increase their consumption rate. Identify benefits of using the product more often or in increased amounts(4)

5. Enhance existing product with new features or improved current features. Identify benefits that attribute or quality enhancements could provide to existing customers.(5)

From a legal perspective, each of these approaches leads to situations which expose specific consumer groups to product-related dangers. In trying to attract new customers into the product market, the firm may attract buyers who are less able than current customers to understand either how to use an item or the dangers associated with the product. For example, in early 1990, RJR Nabisco introduced its Dakota brand of cigarettes targeted at young, less-educated females. Experts criticized this strategy, arguing that this segment of smokers is vulnerable to advertising campaigns that glamorize smoking.(6)

By attracting competitors’ customers, the firm may attract buyers who fail to comprehend the subtle dangers inherent in using the different product. For example, in order to compete directly with another firm’s offering, a manufacturer of snow throwers may redesign its top-of-the-line model by moving the thrower’s deadman switch from an above-the-handle to a below-the-handle position. The company’s current customers would have to learn how to engage the newly designed switch. The result is greater exposure to hand and foot injuries in an already dangerous product category.(7)

By encouraging new, but safe, uses for a product, the firm inadvertently may spur consumers to try other unintended uses that turn out to be dangerous and harmful. Drugs that are successful for approved uses are being used (and recommended) for off-label uses. For example, Viagra is being prescribed for a number of uses other than male impotence.(8) These unapproved uses are based upon a belief, usually not supported by clinical studies or generational testing, that products have many positive uses.

By advocating increased consumption, the firm may unintentionally cause consumers to use products in excess of their safe limits. Coke and Pepsi compete primarily against each other in a no-growth market in the U.S. by demonstrating various usage situations. However, excessive use of cola drinks containing caffeine can lead to physical dependency.(9) In the past year we have learned about the dangers of overusing diet pills when users, anxious to lose weight quickly, exceeded recommended dosages.(10)

By enhancing existing products through adding features or improving quality, the firm may change the product to require greater attention during use, thereby exposing consumers to higher danger levels. A “premium” liquor brand with higher alcohol content can lead more quickly to intoxication.(11) McDonalds targeted the Arch Deluxe sandwich, an item with high fat content, at older population segments already affected by blood cholesterol levels.(12) Cherry-flavored tobacco bits made chewing tobacco more palatable to younger people, thus exposing them to nicotine-related dangers.(13) A common characteristic of these examples is they combine product development and promotional efforts with some buyers’ inclinations to use products to excess.

To understand better how to deal with these situations, several lines of scholarly inquiry are relevant, including studies about addiction,(14) excessive use,(15) variety seeking behavior,(16) and compulsive,(17) impulsive,(18) ritualistic,(19) and symbolic(20) consumption. These tendencies have been examined at both the macro(21) and micro(22) levels. Researchers have begun to study the product acquisition and consumption patterns of persons who seem to lack control over their rate of product use.(23) Analysts therefore may have identified segments of the population that are particularly vulnerable to excessive product use due to their “lack of control” with regard to certain products or consumption conditions.(24) In addition, some consumers seem to believe that “if a little of a product works, a lot will work better,” resulting in intentional and dangerous product overuse.(25)

This article examines the legal consequences of consumer injuries resulting from product-related excesses. The interests of both consumers and manufacturers/marketers are considered in terms of the kinds of marketing programs necessary to forestall consumer overuse of products and thus minimize consumers’ injuries and the liability of sellers.

AN OVERVIEW OF EXCESSIVE PRODUCT USE

Overuse is a subset of product misuse. Overuse of a product involves using an item for its intended purposes in some manner beyond its safe capacity(26)-e.g., ingesting too many over-the-counter drug capsules at one time, or taking the drug too frequently or over too long a time period. Overuse encompasses the notions of overly intense use,(27) prolonged use,(28) and product use beyond its intended safe life.(29)

As in most situations involving possible product liability litigation, both the marketer and the consumer play important roles in minimizing excessive use of products. The seller has a legal duty to anticipate foreseeable product misuses by consumers and to take steps, e.g., warnings, protective packaging, package inserts, etc., to prevent consumers from using products for dangerously improper purposes. Prior to taking these precautions, the marketer must choose product designs that either preclude excessive consumption or minimize the possibility that an item could be used in an abusive fashion.

Product overuse cases involve an unusual form of “product defect.” The product is essentially not defective under traditional guidelines because it performs adequately for its intended purpose. The product is not broken, cracked, or out-of-order. For example, a product could be used in a manner that is too fast,(30) too long(31) or too stressful,(32) based on its design. Since these uses, apart from their rates, are intended by the manufacturer, courts often consider them reasonably foreseeable.

In other overuse cases, the outcome turns upon the perceptions, considering the circumstances, of reasonable consumers. Would they understand and appreciate the product’s limitations and the dangers associated with usage in excess of those limitations?(33) Resolution of the foreseeability question will determine if the manufacturer has marketed a dangerously defective product, a key issue in determining responsibility for plaintiff’s injuries.

Courts have employed various legal doctrines to determine whether marketers are liable for injuries resulting from product overuse. These include traditional negligence standards, strict liability in tort, breach of express warranty, and breach of implied warranty. Negligence liability turns upon the existence of a duty to warn about a foreseeable and anticipated product use, including misuse.(34) Strict liability claims may arise from state product liability statutes(35) or pursuant to the Restatement (Second) of Torts, Section 402A.(36) Warranty claims rest upon common law principles and/or state Uniform Commercial Code statutes.(37)

Although a marketer would not intend that consumers overuse its product, such behavior may be reasonably foreseeable by the seller. This gives rise to liability for injuries caused by such overuse because excessive product use, or product overuse, are subcategories of product misuse. A marketer’s liability for foreseeable product misuse occurs when a seller fails to take reasonable precautions against such risks. The focus is upon foreseeable uses, not intended uses. While automobile collisions are not an intended use of the product, marketers nonetheless must take reasonable steps in design, manufacture, instruction and warning to reduce the risk of injury in the event of a collision.

In many jurisdictions, marketer responsibility for product-related injuries rests upon the Restatement (Second) of Torts, which provides in pertinent part:(38)

Section 402A Special Liability of Seller or Product for Physical Harm to

User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without

substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale

of his product, and

(b) the user or consumer has not bought the product from or entered into

any contractual relation with the seller.

Product defects may arise from design, manufacture, instructions, or failure to provide an adequate warning. The comments which follow Section 402A offer some insights as to the nature of warnings requirements. As described in Comment h, a duty to warn arises where a seller “has reason to anticipate that danger may result from a particular use, as where a drug is sold which is safe only in limited doses, he may be required to give adequate warning of the danger (see Comment j), and a product sold without such warning is in a defective condition.”(39)

The restatement standards recognize that the existence of a product trait that makes it dangerous under some circumstances does not thereby make it unreasonably dangerous for all uses.(40) Further comments delineate the scope of a marketer’s duty to warn, which does not extend to dangers generally known to consumers, including those associated with excessive use.(41) An additional comment provides that a proper warning may prevent marketer liability for an unavoidably unsafe product if it is nonetheless useful and accompanied by a reasonable risk(42)

Overuse: Beyond Designed Capacity

One type of excessive product use occurs when a person uses the product beyond its designed capacity, often in a commercial or industrial setting. Although marketers seldom encourage such overuse (particularly in commercial settings), courts examine whether marketers had a duty to warn against the misuse, the adequacy of any such warning, and plaintiff’s conduct. In addition, as discussed below, advertising for consumer products may inadvertently encourage overuse.

For example, the manufacturer of a hose used to dispense liquid ammonia from a supplier’s storage tank into customers’ containers did not inform the supplier that the useful life of its product was thirty months.(43) The supplier kept the hose in use longer than this period and it eventually burst, causing injuries to the plaintiff, who owned the ammonia supply business. Although the defendant hose manufacturer argued that plaintiff, as a “sophisticated user” of the hose, should have known that it would not last “forever,” the appellate court found no evidence in the record that a sophisticated user would have known that the expected hose life would be thirty months.(44) It therefore upheld a jury verdict for the plaintiff. In another case, an Iowa court found that the manufacturer negligently breached a duty to warn of the maximum safe rated capacity of a wire rope sling used to move heavy machinery in a tire plant. Even though the product was used by experienced ironworkers who had extensive knowledge of the dangers associated with exceeding the sling capacity, the manufacturer had not attached a tag stating the maximum allowable load.(45)

Other courts have reached different conclusions when they have found adequate warnings against foreseeable overuse. In Ulrich v. Kasco Abrasive Co.,(46) a welder suffered personal injuries when an abrasive wheel exploded as he used it on a portable grinding machine. Defendant had manufactured both the grinder and the wheel. A label on the wheel specified a maximum 6000 rpm rating. An accompanying list of do’s and don’ts stated, “Don’t ever exceed maximum operating speed for the wheel.”(47) Plaintiff’s tool maintenance personnel failed to replace a worn governor on the grinding machine, allowing it to operate at 9,000 rpms, well beyond that of the manufacturer’s warning. Thus, the court found for defendant manufacturer. In another case, a hoist manufacturer provided warnings about maximum load capacity in catalogs supplied to its buyers, but did not attach warnings to the product itself. Information concerning load limits also was accessible in standard reference books available to the trade. This allowed the manufacturer to avoid liability when an attempt to lift a load that exceeded the 9,100 lb. rated capacity of its hoist caused fatal injuries to a steamfitter.(48)

An interesting issue concerning product overuse by exceeding intended capacity arose in a different context in Stewart v. Von Solbrig Hospital.(49) Defendants had produced a surgical pin, known as a “Rush pin,” that was inserted in plaintiffs tibia to promote healing of his fractured leg. The pin broke while in the leg, causing serious complications that necessitated subsequent operations. Plaintiff alleged that the manufacturing defects caused the pin to break. Defendant’s evidence at trial showed that the plaintiff had walked on the leg without a cast before the fracture healed, contrary to his physician’s instructions. The evidence also showed that the purpose of the pin was to align and stabilize the fracture, not to support the body’s weight on an unhealed fracture. Thus, the appellate court upheld the trial court’s entry of a judgment for defendant, notwithstanding the jury verdict, because of plaintiffs misuse of the Rush pin.

Where a reasonable, non-expert product user would not have knowledge of a product’s capacity, sellers do have a duty to warn. In Singer v. Walker,(50) a father used a geologist’s hammer to break open a two or three pound quartz rock. A fragment splintered from the hammer causing an eye injury to the geologist’s ten year old son. Despite testimony that an expert would not attempt to fracture rocks with such a small hammer, the court found a duty to warn against such a foreseeable misuse.

Overuse: Foreseeable Misuse and Adequacy of Warnings

Failure to provide an adequate warning about the risks of overuse will result in liability for injuries caused by such overuse. The key questions involve not only whether the marketer should have provided a warning, but also if the warning adequately conveyed the necessary safety information. Thus, in Fegan v. Lynn Ladder Co.,(51) plaintiffs used a commercial extension ladder as a component of an eighteen foot scaffold. The ladder broke while plaintiffs stood on the scaffolding when painting a house. Defendant ladder company knew of both the dangers associated with using extension ladders for scaffolding and the frequency with which it was done. The only relevant warnings given, however, consisted of a statement on a label that said, “When erecting extension ladder, place at 75 1/2 degrees angle so that bottom is away from vertical resting point one-quarter of extended length of ladder…. A ladder is meant to carry only one person at a time. Do not overload.”(52) The court found that defendant had failed to provide an adequate warning about the foreseeable and anticipated overstressing of its product.

In Gardner v. Q.H.S.,(53) an apartment owner sought to recover damages for destruction of his building when a fire resulted from a tenant’s overuse of defendant’s hair curlers. The tenant put the curlers into boiling water, in accordance with product instructions, and went to take a bath. She fell asleep in the tub, the water boiled away, the curlers ignited and caused the building to burn down.. The box had a warning printed on it, which stated: “Use plenty of water. Do not let water boil away. Cautionary note: Rollers may be inflammable only if left over flame in pan without water. Otherwise Q.H.S. Setting/Rollers are perfectly safe.”(54) The appellate court upheld the jury’s verdict for plaintiff, noting that defendant should have foreseen that under normal usage, a momentary interruption might permit the water in a pot to boil away, thereby subjecting the curlers to heat beyond 212 degrees Fahrenheit. Furthermore, the cautionary note was inadequate because it did not disclose that the curlers contained paraffin, and stated only that the product “may” be inflammable if left over “flame” and was otherwise “perfectly safe.”(55)

Failure to provide a warning may negate a contributory negligence defense, as it did in McCully v. Fuller Brush Company.(56) Plaintiff suffered severe burns on her hands after using defendant’s household cleaning compound for four and one-half hours. The product label included directions but no warning, despite undisputed evidence that the cleaner contained “well known irritants and sensitizers to the human skin.”(57) In reversing the defense verdict, the court noted:

In addition to the complete absence of evidence from which it could be
inferred that plaintiff was cognizant of danger to her safety, the
container from which she poured assured her “It’s Kind To Your Hands.” How
can it be said that one could be contributorily negligent in immersing her
hands into a solution mixed from a container with such words so
conspicuously displayed? … One who has been assured that a product is
safe is unlikely to be on the lookout for danger.(58)

When marketers do provide warnings, their adequacy well may be determined by a jury. In Torsiello v. Whitehall Laboratories,(59) plaintiff suffered gastrointestinal hemorrhaging after having taken eight Anacin tablets a day for fourteen months. The label warned: “Caution–If pain persists for more than 10 days or redness is present, or in arthritic or rheumatic conditions affecting children under 12 years of age, consult a physician immediately.”(60) Plaintiff consulted his physician about the product usage throughout the fourteen months. The trial court dismissed plaintiffs case, holding that, as a matter of law, the marketer’s only responsibility was to warn against usage for more than ten days without a physician’s advice.(61)

The appellate court reversed, noting: The warning we are here dealing with
could readily have been found by a jury to be inadequate…. it does not
even unqualifiedly instruct the user to consult a physician before
continuing use for more than ten days. Its much more ambiguous message is
to consult a physician if pain persists for more than ten days or redness
(whatever that vaguely described symptom is intended to mean) is present. A
jury could well have concluded that this warning did not even purport to
address itself to the existence of an inherent risk of harm in the use of
the product but only intended … to advise them that if a ten-day regimen
did not ameliorate the condition being treated, that condition might be
serious enough to require medical advice. Indeed, the warning might well be
found to be reasonably understood by the average consumer as not requiring
him to consult a physician at all with respect to continued use so long as
pain was being relieved and no redness was present. Clearly, a warning
reasonably susceptible of either such interpretation cannot be said to
constitute a warning that inherent in continued use is the risk of
gastrointestinal bleeding.(62)

Furthermore, a marketer’s warning that complies with federal Food and Drug Administration requirements does not automatically meet common law warning requirements. In Edwards v. Basel Pharmaceuticals,(63) plaintiffs decedent died of a nicotine-induced heart attack caused by smoking a cigarette while wearing two nicotine patches manufactured by defendant. The prescribing physician had received a detailed warning about risks associated with the patch, including cardiac failure, but the package insert said only that an “overdose might cause you to faint.”(64) The Oklahoma Supreme Court held that the required warnings “must not be misleading, and must be adequate to explain to the user the possible dangers associated with the product.”(65)

When a court determines as a matter of law that the risks associated with use of a product are obvious or well known, no obligation to warn of those dangers exists. In Garrison v. Heublein,(66) plaintiffs alleged that defendant manufacturer and marketer of Smirnoff Vodka had a duty to disclose that “consumption of its products may be hazardous to the consumer’s health and physical and economic wellbeing” and that “liquor poses latent risks not appreciated by users.”(67) In upholding the trial court dismissal of the action, the court stated” we find that even though there are dangers involved in the use of alcoholic beverages, because of the common knowledge of those dangers, the product cannot be regarded as unreasonably unsafe…. Thus, we affirm the district court’s finding that the defendant in this case has no duty to warn.”(68)

A similar case involved more specific allegations that a manufacturer and marketer of alcoholic beverages failed to meet its duty to warn about the risks of developing alcoholism from “prolonged and excessive” consumption of its products.(69) The Texas Supreme Court, in affirming dismissal of the action, noted:

From ancient times, the danger of alcoholism from prolonged and excessive
consumption of alcoholic beverages has been widely known and recognized.
(citations omitted). Consequently, we hold that, because the danger of
developing the disease of alcoholism from prolonged and excessive
consumption of alcoholic beverages is and has been generally known and
recognized, it is within the ordinary knowledge common to the community.
Therefore, under the limited circumstances present in this cause, Seagram
had no duty to warn or instruct of this particular danger.(70)

The Tennessee Supreme Court upheld dismissal of a claim brought by the parent of a minor son who died after consuming an excessive quantity of Everclear Grain Alcohol.(71) Plaintiff contended that defendant had a duty to warn of dangers “inherent in its consumption.”(72) The court maintained that whether the manufacturer had a duty to warn about overuse was determined by “the knowledge of the ordinary consumers of the product.”(73) This implies that the justices did not consider that inexperienced or minor consumers were entitled to a warning, even where their use was foreseeable.

Advertising That Encourages Overuse/Excess Consumption

Advertising may be used to attract new customers, to draw customers away from competitors, to urge customers to increase their consumption, or to try new uses for products. The content of the advertising itself, if it misleads consumers about the effects of overuse, may lead to product liability claims. For example, in the Seagram(74) case, in addition to their products liability claims based upon defendant’s alleged breach of a duty to warn against the risks of overconsuming alcoholic beverages to the point of becoming addicted, the plaintiffs emphasized the nature and extent of defendant’s advertising. They claimed that defendant used advertising and promotion to increase consumption, maintain regular customers, attract new customers, and “suppress vital information.”(75) Plaintiffs further contended that they were unaware of the symptoms of alcohol addiction and that they had relied upon newspaper, magazine, and billboard advertising that portrayed drinking as safe.(76) The court found these arguments unpersuasive and accepted the “common knowledge” defense to claims based upon failure to warn of the dangers of prolonged alcoholic beverage consumption. Nonetheless, the court seemed troubled by the influence of advertising when it observed:

Obviously, there is a certain irony in the ‘common knowledge’ defense.

Because the pervasive danger of alcoholism from prolonged and excessive
consumption of alcoholic beverages is so well known, Seagram has no duty to
warn or instruct. However, while Seagram argues that the danger of
alcoholism is a matter of common knowledge such that it had no duty to warn
or instruct, it continues to spend billions of dollars advertising the
consumption of alcoholic beverages as a particularly positive activity.(77)

Perhaps where marketers conduct intensive advertising and promotional campaigns that encourage frequent product use, which carries with it a serious likelihood of excessive use, courts may become more sympathetic to actions based upon failure to warn about the dangers of excessive consumption. Such was the case with the household cleaner labeled, “It’s kind to your hands.”(78)

It would appear that cases involving products with a significant risk of addiction, such as tobacco, certain pharmaceuticals and alcoholic beverages, offer the best opportunities to establish liability on the basis of excessive overpromotion that leads to overuse. Such liability might rest upon the doctrine that when advertising encourages excessive consumption that causes injury, it becomes false and misleading. If the ads created a false belief that excessive consumption was beneficial, or harmless at most, it could be construed as deceptive advertising. It might further amount to an express or implied warranty. Any such finding would lead to liability for injuries caused by excessive consumption or overuse.

Nonetheless, courts remain reluctant to find for the plaintiffs in suits brought against alcoholic beverage marketers on the theory that extensive promotion of the product leads to overuse (intoxication), thereby causing harm to others. In Maguire v. Pabst Brewing Co.,(79) an injured motorist sought recovery for injuries caused by another driver who became intoxicated aider consuming an excessive quantity of defendant’s beer. Plaintiff pointed out that in advertising its beer, Pabst had spent $25,023,000 in 1982, and $28,783,000 in 1983.(80) Their television commercials included ads that concluded with one character saying, “Let’s have another.”(81) Plaintiff characterized Pabst’s marketing practices as an “invitation to excess” that promoted consumption of alcohol by customers who drove to taverns, thereby threatening safety. The court, in rejecting this argument, considered whether the lack of a warning about the effects of overconsumption and excessive use made the product unreasonably dangerous. Observing that such dangers are “generally known and recognized,” and citing Pemberton,(82) the court found no duty to warn.(83)

In a Texas case, the plaintiffs sued a bartender, the bar where he worked, The Cowboy Palace, and a local radio station, KZZB-95, under the state’s dram shop act, for injuries caused by drunken drivers, one of them a minor, who had overconsumed liquor at the bar.(84) The bar and the radio station had conducted a vigorous joint promotion for seven years. The station had run advertisements for weekly “B-95 Nights” at the Cowboy Palace, deriving the event’s name from the radio station call letters. The promotions featured drinks priced at ninety five cents, free admission for women and radio spots that encouraged underage listeners to attend. The station did live broadcasts from the bar and cosponsored give-aways of automobiles, tee-shirts, and beer mugs.

In considering claims brought against defendant radio station, the appellate court observed that “[t]he facts of this present appeal are no doubt peculiarly unique [sic] to normal advertisement and promotional concepts. In advertising or promoting, seldom is seen such co-mingling, intertwining and common pursuit of purpose.”(85) The court further noted that it found “a distinction between a promotion of the ‘sale of alcoholic beverages’ and advertisement encouraging the unrestrained and uncontrolled purchase of alcoholic beverages.”(86) Although the appellate court concluded that plaintiffs could proceed against the radio station, the Texas Supreme Court subsequently limited recovery to the Cowboy Palace and its bartender on the grounds that the radio station had no legal duty to control the actions of the bar patrons.(87)

Advertising encouraging excessive consumption occurs for products other than alcohol, tobacco, and pharmaceuticals. Courts recognize that advertising may be relevant for determining foreseeable consumer use.(88) For example, in Leichtamer v. American Motors Corp., Jeep advertising clearly encouraged off road use and the owner’s manual claimed Jeep could proceed down a steep grade.”(89) When the plaintiffs were severely injured in a rollover while going downhill, despite having purchased the optional safety rollbar, the Ohio Supreme court affirmed an award of $2.2 million against the manufacturer American Motors Corp., most of which was punitive.(90) In addition, American Motors was challenged by the FTC for advertising showing that Jeep vehicles could be used on pavement like ordinary automobiles, without disclosing handling limitations resulting from the higher center of gravity. The FTC consent required a windshield warning of Jeep’s handling and maneuvering limitations and additional information in the owner’s manual.(91) No matter how it advertised, American Motors had difficulty avoiding showing their Jeep vehicles in some form of excessive use.

Furthermore, advertising may create either an express or implied warranty that a portrayed use is safe when it is actually excessive. For example, in the now classic Greenman v. Yuba Power Products, Inc., brochures for the Shopsmith power tool stated that positive locks would hold the wood being worked upon even through rough work.(92) When the locking devises loosened causing the wood being worked upon to strike the plaintiff in the head, the court found the product defective in violation of an express warranty.(93)

Similarly, when Rayex flip-down sunglasses were advertised for use while playing baseball with packaging that referred to “instant eye protection” and “lenses guaranteed for life against breakage,” the court found the product, which did not have shatterproof lenses, was sold in breach of a warranty of fitness for a particular purpose (playing baseball).(94) This despite the fact that advertising only discussed protection from sun and glare and the marketer never claimed the product had shatterproof lenses.

Advertising that encourages use beyond the capacity or capability of the product also can lead to marketer liability for false and misleading promotion. For example, Sears Roebuck & Company made promotional claims that its Lady Kenmore dishwasher would completely clean dishes, pots, and baking pans without prior rinsing or scraping. The owner’s manual, which consumers received after purchase, told users to pre-soak or scour baked-on foods. The Federal Trade Commission subsequently issued a cease and desist order which prohibited Sears from making performance claims about its home appliances, unless the company had supporting test data.(95) Similarly, advertising for denture cushions suggesting that the product would allow dentures to be worn for extensive periods of time, contrary to warnings on the product, was subject to prohibition in an FTC consent order.(96)

Overuse as a Defense

As the alcohol cases illustrate, defendants in products liability actions have successfully invoked the defense of product overuse. This subset of the product misuse argument may appear under the heading assumption of risk, contributory negligence, or comparative fault.(97) In McCurter v. Norton,(98) a grinding wheel disintegrated, injuring an experienced machinist. The grinding wheel, which subsequent tests showed had no defects in either design or manufacture, was marked “Max 2545 rpm.” However, the machinist was using a grinder capable of 18,000 rpms. The trial court, in a decision upheld by the appellate court, found that a combination of mis-mounting and excessive operating speed caused the failure.

A similar case involved the operator of a front-end loader tractor who drove at high speeds after having overloaded the tractor.(99) The resulting accident killed the operator, whose widow sought to recover damages from the manufacturer. The court upheld an assumption of risk defense, determining that the operator’s overuse was knowing and voluntary.

CONCLUSION: RECOMMENDATIONS FOR MARKETERS

When promoting and/or enhancing product design for additional consumption, the starting point for marketers is to look at the characteristics of the consumer segments being targeted. Commentators have suggested that target market decisions should include an ethical component regarding the potential vulnerability of segment members.(100) Research has shown that consumers feel that targeting vulnerable segments is unethical, particularly if the products are dangerous or of questionable value.(101) Inappropriate targeting strategies could result in negative publicity, including boycotts.(102)

The pervasive theme of this analysis is that marketers must consider not only the intended uses of their products as stated by product designers, but also how people will overuse them, particularly in light of product advertising and labeling. This perspective is now discussed in terms of designing products and their warnings. While we agree that physical design issues, including the development of guards and safety devices, should precede the creation of warnings, we believe the overall product design should fully integrate warnings into the total offering.

For more than forty years safety experts have argued that the primary steps in developing safe products are to eliminate hazards from products or to provide safety devices. Only then should warnings and instructions become relevant. The three safety priorities established in 1955 by the National Safety Council are:(103)

Principle 1: Hazard Elimination. If practical, design the hazard out of the product, workplace, job or facility via engineering means.

Principle 2: Safety Guards, Enclosures. If a hazard cannot be eliminated, guard against it or use safety design techniques to reduce risks.

Principle 3: Safety Warnings and Instructions. If the hazard cannot be guarded against, warn or instruct the user about the danger under reasonably foreseeable conditions of service and commerce.

Our analysis suggests adding a fourth principle:

Principle 4: Advertising and Labeling. In addition to proper warnings and instructions, advertising and labeling should not explicitly or implicitly encourage dangerous product overuse.

Two examples illustrate the importance of design over warnings.(104) Long-term use of a computer keyboard and mouse leads to a variety of problems, including carpal tunnel syndrome (CTS),(105) one of several types of repetitive stress injuries. As people gradually became aware of this problem, one which develops over a period of years, lawsuits were filed.(106) The initial response by providers of this equipment was to provide warnings about the dangers of prolonged use. Unfortunately, this did little to diminish the problem since workers using these devices could not avoid using them.

In recent years, product marketers turned to design alternatives to reduce the likelihood of people being afflicted with CTS. Contour Mouse models in various sizes, right- and left-handed versions, were developed so that mouse users would have a relaxed, comfortable hand position.(107) Computer keyboards and telecommunications call centers also have been reconfigured to place less stress on the muscle groups and joints of users.(108)

Prescription and over-the-counter drug products also pose significant risks for those who do not follow dosage instructions and at-risk persons, such as children and those with conditions exacerbated by certain drugs. Sellers have responded with a plethora of warnings, but they also have thought about product design alternatives. Some drugs are offered in smaller potency tablets or in smaller quantities, making an overdose less likely.(109) Caplets are easier to swallow than tablets, he]ping to prevent choking and to preclude tampering.(110) In addition, as part of their service delivery systems, more and more pharmacists are networking to track drug use by customers in order to prevent overuse of pharmaceutical products.(111)

Product Design Considerations

At the outset, we suggested several courses of action available to firms interested in revenue growth. These alternatives require companies to develop new brands of existing products, products with enhanced or additional features, additional uses for present offerings, or campaigns to encourage increased product usage. Each of these strategic options involves product design or redesign activities that could affect safety. During product development the marketer must decide if the potential for overuse can be minimized without eliminating essential benefits the product is intended to provide. This design issue should be examined at several levels.

First, does the product’s overall design encourage safe use? Are the controls and switches located correctly relative to typical hand-eye movements and in a fashion similar to corresponding controls on other products?(112) For example, why would a stove with four burners, two in front and two in back, have four control switches aligned left to right? Which of these is intuitively the control for the back right burner? The task is to make the product “user safe” and workable by having user input into the product design process for complex products.(113) Information about how to operate or use products should be “easy to comprehend and hard to forget.”(114) The importance of information is underscored by the role of the Federal Trade Commission in helping to insure the provision of safety information during product use.(115) Early involvement of users in prototype testing sets the stage for the development of devices to preclude unsafe use. If consumers instinctively turn a toaster oven’s temperature dial to an overheated position when following cooking instructions, the dial needs to be recalibrated and perhaps a resistance point should be built into the dial to indicate physically that a high temperature is being reached.

A second level of concern about product design is inadvertent overuse. Advances in automobile technology provide many safety features to compensate for driver inattention or carelessness. The marriage of computer technology with antilock brakes has improved the braking capacity of motor vehicles.(116) Synthetic engine oils have extended the oil change interval on most vehicles.(117) These and other changes provide safer driving situations for everyone.

A third level of concern about product design looks at intentional overuse. The computer mouse example described earlier illustrates how product design can lessen the chance for injury when overuse is intentional. Since data entry personnel are going to spend several hours per day using a mouse, it had to be reconfigured to lessen stress. Newer, curved designs allow the hand to rest comfortably, thumb at the side, while the fingers remain in a naturally extended position. This relaxes the wrist, thereby reducing stress on joints.(118)

A fourth level of concern focuses on the various psychological and physiological foundations of product overuse. For example, certain products are addictive, resulting in excessive consumption. Schwartz argues that warnings and usage instructions are of little help in minimizing consumption of addictive products because of the powerful effects of the addiction.(119) The only remaining solution, if the consumption of these products is to be minimized, is to ban them because the addictive properties are an integral part of the design of these products. Other products and consumption situations have taken on cultural symbolism.(120) Some holidays are characterized by the consumption of certain foods, sometimes to excess. This type of behavior is traditional, and the marketer will be hard pressed to develop warnings to dissuade people from overeating.(121) Following these holidays, people often resort to dieting to compensate and can harm themselves by overreacting in this direction, i.e., overuse of diet pills.(122)

Compulsive consumers(123) also present difficult problems for marketers. For example, someone who compulsively checks the on-off dial of a gas oven may eventually break the switch or perhaps alter its setting. This could lead to the oven being left on inadvertently in spite of continuous vigilance. A warning urging the owner not to check the on-off dial too often seems unusual, so this problem would have to handled by designing a switch capable of withstanding considerable pressure.

Researchers also have learned that some product misuses are related to “action slips,” usage errors due to inattention and task repetition.(124) Someone who has completed a task, even a dangerous one, many times tends to devote only partial attention to the task the next time it is performed. An example would be driving an automobile to the office while thinking about the upcoming work day. This driver could easily follow a lead vehicle too closely by not paying attention to speed and driving conditions. To combat this problem, Ford Motor Company is working on a prototype cruise control that automatically maintains a driver-specified interval from other cars.(125) Of course the driver still has to activate the cruise control system.

Warning Considerations

So far our recommendations for marketers have focused on safe product designs and accompanying safety mechanisms. For many products, written warnings still will be necessary in order to convey necessary precautions to product users. These products are unsafe in the absence of warnings or with warnings that do not adequately convey the needed safety information. Such warnings must be adequate in a number of ways, including semantics as well as the physical characteristics.(126)

The firm offering differentiated versions of its products to multiple market segments must consider the possibility of developing multiple versions of its warnings, particularly for those segments comprising persons who might overuse the product. This suggestion implies that the concept of an ordinary consumer with the ordinary knowledge common to the community(127) might be replaced with the ordinary consumer within each target market.(128) For example, some courts have found written warnings to be inadequate when product users do not read English.(129) Symbols may be adequate conveying simple messages, but inadequate for detailed or complex warnings. Ironically, many companies translate their promotional messages to appeal to localized minority segments, but fail to translate product-related warnings.(130) The language issue is unresolved(131) and will likely be handled on a case-by-case basis.(132)

Extending this reasoning to product overuse, we believe marketers should understand better the role warnings and promotion play in potential overuse circumstances. A product-related danger that is “open and obvious” to one set of consumers may fall beyond the “reasonably foreseeable risks” of another segment. For example, new customers attracted to recently developed product features may require more extended warnings than current product users who can readily comprehend the dangers associated with the new product attributes. Likewise, improving the durability of a product still requires that consumers monitor the product for signs of wear-out.

Advertising messages to some degree may contradict safety warnings or otherwise encourage unsafe product use. Firms devote considerable resources to develop and test new products. These efforts could be expanded to investigate warning effectiveness and test advertising messages.(133) Communications research could help to refine warning messages to see if they have their intended effect, i.e., alerting users to potential dangers and complying with legal requirements. Simply adding untested warnings as the final step in the product development process creates the ironic situation of risking product overuse by overusing warnings.(134)

(1) See, e.g., David A. Aaker, Should You Take Your Brand to Where the Action Is?, HARV. BUS. REV., Sept.-Oct. 1997, at 135, 136-37 (suggesting that new brands with added features may be superior for attracting new customers than repositioning of existing brands).

(2) See, e.g., John A. Bers et al., A Venerable Tool for a New Application: Using Scenario Analysis for Formulating Strategies for Emerging Technologies in Emerging Markets, ENGINEERING MGMT. J., June 1997, at 33, 34 (illustrating the importance of meeting current needs with new and superior technologies). See also Robert

(3) See, e.g., Dorothy Leonard & Jeffrey F. Rayport, Spark Innovation through Empathetic Design, HARV. BUS. REV., Nov.-Dec. 1997, at 102, 102-03 (demonstrating the importance of observing customers to understand how and why they discover new uses for product). See also Herb Norman, Past, Present, and Future: The Natural Soaps Market Evolves, SOAP-COSMETICS-CHEMICAL SPECIALTIES, Jan. 1997, at 48, 49 (describing the growing preference for natural soaps over insecticidal soaps due to the latter’s toxic residues).

(4) See, e.g., Bala Panchapakesan, Increased Recycled-Fiber Content Spurs Machine Design Evaluation, PULP & PAPER, June 1994, at 105, 107-09 (discussing environmental concerns and the “correctness” of using recycled products).

(5) See, e.g., Marco Iansiti & Alan MacCormack, Developing Products on Internet Time, HARV. BUS. REV., Sept.-Oct. 1997, at 108, 108-09 (highlighting the use of the Internet to develop new product features). See also Tim Renken, Disaggregate Discrete Choice, MARKETING RES., Spr. 1997, at 18, 19 (showing how to determine the impact of specific attributes on consumer preferences and purchasing patterns).

(6) Alix M. Freedman & Michael J. McCarthy, New Smoke from RJR Under Fire, WALL ST. J., Feb. 20, 1990, at B1, B7.

(7) Mark Canter, The Killer Chore: Shoveling Snow, 9 MEN’S HEALTH 38, 39 (Jan. 1994)

(8) Catherine Arnst, Danger: Read the Label, BUS. WK., May 11, 1998, at 100.

(9) W. Marvin Davis, Major Types of Primary and Secondary Headaches and Their Treatments, DRUG TOPICS, Apr. 8, 1996, at 128, 130.

(10) See, e.g., Kristine Napier, No More Diet Pills–What Now?, PREVENTION, Dec. 1997, at 39, 40

(11) See, e.g., Jennifer Waters, Survey Says–Even Russians Turning to Rum, MARKETING NEWS, Mar. 2, 1998, at 10. See also James Scarpa, Ticket to Paradise: It Takes More than Just a Fancy Garnish on a Fruity Tropical Drink to Sell Customers on a Sun & Fun Fantasy, RESTAURANT BUS., July 1, 1997, at 131, 131-32.

(12) See, e.g., Seth Mendelson, Research Gone Awry, SUPERMARKET BUS., Nov. 1996, at 43, 45. See also Diane Welland, EN’s Nominees for 10 Best, 10 Worst Products of the 90s, ENVTL. NUTRITION, Dec. 1996, at 1, 4.

(13) Cherry-Flavored Tobacco Bits, CONSUMER REP., Mar. 1995, at 142, 143-44.

(14) See, e.g., Frank Ackerman, Consumed in Theory: Alternative Perspectives on the Economics of Consumption, 31 J. ECON. ISSUES 651, 651-54 (1997) (suggesting that much excessive consumption in the U.S. is due to addiction).

(15) See, e.g., Marion Nestle, Alcohol Guidelines for Chronic Disease Prevention: from Prohibition to Moderation, 32 NUTRITION TODAY 86, 86-88 (1997) (emphasizing the importance of moderation in the consumption of alcohol). See also WILLIAM R. MILLER & STEPHEN ROLLNICK, MOTIVATIONAL INTERVIEWING: PREPARING PEOPLE TO CHANGE ADDICTIVE BEHAVIOR 4-15 (1991) (discussing the range of skills necessary to change addictive tendencies).

(16) See, e.g., Satya Menon & Barbara E. Kahn, The Impact of Context on Variety Seeking in Product Choice, 22 J. CONSUMER RES. 285, 285-87 (1995) (describing how different situations can stimulate people to seek change or variety). See also Hans C.M. van Trijp et al., Why Switch? Product Category–Level Explanations for True Variety-Seeking Behavior, 33 J. MARKETING RES. 281, 281-88 (1996) (arguing that variety seeking can be prompted by extrinsic cues as well as intrinsic feelings).

(17) See, e.g., Ronald J. Faber et al., Two Forms of Compulsive Consumption: Comorbidity of Compulsive Buying and Binge Eating, 22 J. CONSUMER RES. 296, 306-08 (1995) (demonstrating that some forms of compulsive behavior are interrelated and perhaps develop in similar ways).

(18) See, e.g., Dennis W. Rook & Robert J. Fisher, Normative Influences on Impulsive Buying Behavior, 22 J. CONSUMER RES. 305, 305-12 (1995) (showing that impulsive behavior can result in both positive and negative outcomes). See also Dennis W. Rook, The Buying Impulse, 14 J. CONSUMER RES. 189, 189-90 (1987) (demonstrating that impulsive behavior can lower self-esteem).

(19) See, e.g., Robert A. Westbrook & Richard L. Oliver, The Dimensionality of Consumption Emotion Patterns and Consumer Satisfaction, 18 J. CONSUMER RES. 84, 84-88 (1991) (illustrating that consumer purchases result in a broad range of emotional patterns that in turn motivate subsequent purchases). See also Cele Otnes & Linda M. Scott, Something Old, Something New: Exploring the Interaction between Ritual and Advertising, 25 J. ADVERTISING 33, 33-34 (1996) (discussing the use of ritual symbolism in marketing, especially advertising).

(20) See, e.g., John W. Schouten, Selves in Transition: Symbolic Consumption in Personal Rites of Passage and Identity Reconstruction, 17 J. CONSUMER RES. 412, 412-22 (1991) (using in-depth interviews to develop constructs about the symbolism in consumption). See also John W. Schouten & James H. McAlexander, Subcultures of Consumption: An Ethnography of the New Bikers, 22 J. CONSUMER RES. 43, 43-44 (1995) (analyzing the rituals of shared consumption of social groups).

(21) See e.g., Melanie Wallendorf & Eric J. Arnould, “We Gather Together”: Consumption Rituals of Thanksgiving Day, 18 J. CONSUMER RES. 13, 13-30 (1991).

(22) See, e.g., Donna B. Johnson, Nutrition in Infancy: Evolving Views on Recommendations, 32 NUTRITION TODAY 63, 63-64 (1997).

(23) See, e.g., Ronald J. Faber & Thomas C. O’Guinn, Compulsive Consumption and Credit Abuse, 11 J. CONSUMER POL’Y 97, 97-100 (1988). See also Thomas C. O’Guinn & Ronald J. Faber, Compulsive Buying: A Phenomenological Exploration, 16 J. CONSUMER RES. 147, 148-51 (1989).

(24) See, e.g., Fred W. Morgan et al., A Framework for Examining the Legal Status of Vulnerable Consumers, 14 J. PUB. POL’Y & MARKETING 267, 267-77 (1995). See also, Ronaid Paul Hill Spring, Researching Sensitive Topics in Marketing: The Special Case of Vulnerable Populations, 14 J. PUB. POL’Y & MARKETING 143, 143-47 (1995).

(25) See, e.g., Helen J. Anderson, Bug Bouncers: If It’s Last Call in the Wall, They’ll Show ’em to the Door, CHI. TRIB., Oct. 26, 1990, at D24.

(26) See, e.g., David E. Gardels, Overuse in Products Liability, 57 NEB. L. REV. 817, 817-22 (1978). See also Genteman v. Saunders Archery Co., 355 N.E.2d 647, 647-52 (Ill. App. Ct. 1976), where a man purchased a “string silencer” to use with his archery bow and was injured when the silencer detached and hit him in the eye. An Illinois appellate court upheld a judgment favoring the silencer manufacturer that claimed that the plaintiff had used the silencer many more times than would normally occur. The silencer was supposed to be used only during hunting, but the plaintiff had used it more than 50 times during target practice, thereby weakening it for its intended use.

(27) See, e.g., Adam Cohen et al., Battle of the Binge, TIME, Sept. 8, 1997, at 54 (describing the consequences of binge drinking of alcohol).

(28) See, e.g., Ann Louise Gittleman, The Issue of Calcium Absorption, TOTAL HEALTH, June 1996, at 32 (explaining how prolonged use of some products can prevent the body from absorbing needed amounts of minerals).

(29) See, e.g., Wayne R. Dunham, Are Automobile Safety Regulations Worth the Price: Evidence from Used Car Markets, 35 ECON. INQUIRY 579, 583-86 (1997) (discussing the effect of safety improvements in new automobiles on the prices of used vehicles).

(30) See, e.g., Ulrich v. Kasco Abrasive Co., 532 S.W.2d 197, 198-99 (Ky. 1976) (spinning a grinding wheel too fast, causing it to disintegrate).

(31) See, e.g., McCully v. Fuller Brush Co., 68 Wash. 2d 675, 676 (Ct. App. 1966) (using a household cleanser for several hours, causing skin burns).

(32) See, e.g., Stewart v. Von Solbrig Hospital, Inc., 321 N.E.2d 428, 429-31 (Ill. App. Ct. 1974) (walking too soon after surgical pin inserted into tibia, causing pin to snap).

(33) See, e.g., Richard C. Ausness, Unavoidably Unsafe Products and Strict Products Liability: What Liability Rule Should Be Applied to the Sellers of Pharmaceutical Products?, 78 KY. L. J. 705, 706-20 (1990) (discussing the standard of proof required of the plaintiff under the consumer expectations test). See also Gina M. DeDominicis, No Duty at Any Speed?: Determining the Responsibility of the Automobile Manufacturer in Speed-Related Accidents, 14 HOFSTRA L. REV. 403, 403-08 (1986) (discussing liability issues in cases involving automobile accidents due to speeding). See also Vernon Palmer, A General Theory of the Inner Structure of Strict Liability: Common Law, Civil Law, and Comparative Law, 62 TUL. L. REV. 1303, 1308-13 (1988) (outlining the various standards applied in strict liability cases, particularly with respect to the seller’s standard of care).

(34) See, e.g., Fegan v. Lynn Ladder Co., Inc., 322 N.E.2d 783, 784-85 (Mass. Ct. App. 1975).

(35) See, e.g., Pemberton v. American Distilled Spirits Co., 664 S.W.2d 690, 690-93 (Tenn. 1984).

(36) See, e.g., Maguire v. Pabst Brewing Co., 387 N.W.2d 565, 565-68 (Iowa 1986).

(37) See, e.g., Singer v. Walker, 331 N.Y.S.2d 823, 824-28 (1972).

(38) RESTATEMENT (SECOND) OF TORTS [sections] 402A.

(39) Id. cmt. h.

(40) Id. cmt. i.

Unreasonably dangerous. The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics…. That is not what is meant by “unreasonably dangerous” in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics

(41) Id. cmt. j.

Directions or warning. In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use. The seller may reasonably assume that those with common allergies, as for example to eggs or strawberries, will be aware of them, and he is not required to warn against them. Where, however, the product contains an ingredient to which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product, the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger. Likewise in the case of poisonous drugs, or those unduly dangerous for other reasons, warning as to use may be required.

But a seller is not required to warn with respect to products, or ingredients in them, which are only dangerous, or potentially so, when consumed in excessive quantity, or over a long period of time, when the danger, or potentiality of danger, is generally known and recognized. Again the dangers of alcoholic beverages are an example, as are also those of foods containing such substances as saturated fats, which may over a period of time have a deleterious effect upon the human heart.

(42) Id. cmt. k.

Unavoidably unsafe products. There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs. An outstanding example is the vaccine for the Pasteur treatment of rabies, which not uncommonly leads to very serious and damaging consequences when it is injected. Since the disease itself invariably leads to a dreadful death, both the marketing and the use of the vaccine are fully justified, notwithstanding the unavoidable high degree of risk which they involve. Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. … The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

(43) Strauch v. Gates Rubber Co., 879 F.2d 1282 (5th Cir. 1989).

(44) Id. at 1284.

(45) But see West v. Broderick & Bascom Rope Co., 197 N.W.2d 202, 203-08 (Iowa 1972) (finding that an informational tag should have been attached directly to a machine).

(46) 532 S.W.2d 197, 197-201 (Ky. 1976).

(47) Id. at 199.

(48) McKay v. Upson-Walton Co., 317 F.2d 826, 826-29 (7th Cir. 1963).

(49) 321 N.E.2d 428, 428-31 (Ill. App. Ct. 1974).

(50) 331 N.Y.S.2d 823, 824-28 (1972).

(51) 322 N.E.2d 783, 783-86 (Mass. App. Ct. 1975).

(52) Id. at 785.

(53) 448 F.2d 238 (4th Cir. 1971).

(54) Id. at 240.

(55) Id. at 241.

(56) 68 Wash. 2d 675, 677 (Ct. App. 1966).

(57) Id. at 676.

(58) Id. at 678.

(59) 398 A.2d 132, 132-41 (N.J. Super. 1978), cert. denied, 404 A.2d 1150 (N.J. 1979).

(60) Id. at 315.

(61) Id. at 318.

(62) Id. at 326-27.

(63) 933 P.2d 298 (Okla. 1997).

(64) Id. at 300. The Learned Intermediary Doctrine did not shield the pharmaceutical firm from liability because the FDA had mandated that the manufacturer give a warning directly to the consumer.

(65) Id. at 303.

(66) 673 F.2d 189 (7th Cir. 1982).

(67) Id. at 190.

(68) Id. at 192.

(69) Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 386-87 (Tex. 1991).

(70) Id. at 388.

(71) Pemberton v. American Distilled Spirits Co., 664 S.W.2d 690, 692 (Tenn. 1984).

(72) Id. at 693.

(73) Id. at 692.

(74) Seagram, 814 S.W.2d at 386.

(75) Id.

(76) Id. at 387.

(77) Id. at 388 n.5.

(78) McCully v. Fuller Brush Co., 68 Wash. 2d 675, 677 (Wash. Ct. App. 1966). See supra notes 56-58 and accompanying text.

(79) 387 N.W.2d 565, 567 (Iowa 1986).

(80) Id. at 568.

(81) Id.

(82) Pemberton v. American Distilled Spirits Co., 664 S.W.2d 690, 692 (Tenn. 1984).

(83) Maguire, 387 N.W.2d at 569.

(84) Riley v. Triplex Communications, Inc., 874 S.W.2d 333, 333-53 (Tex. Ct. App. 1994).

(85) Id. at 349.

(86) Id. at 349-50.

(87) Triplex Communications, Inc. v. Riley, 900 S.W.2d 716 (Tex. 1995).

(88) King v. Kayak Mfg. Corp., 570 So. 2d 612 (Ala. 1990) (promotional materials showing people diving into above ground swimming pool).

(89) 424 N.E.2d 568, 578-79 (Ohio 1981).

(90) Id. at 581.

(91) In re American Motors Corp., 100 F.T.C. 229 (1982), order set aside, 105 F.T.C. 194 (1985) (comparable warning required by the National Highway Safety Administration).

(92) 377 P.2d 897, 899 (Cal. 1963).

(93) Id. at 901.

(94) Filler v. Rayex Corp., 435 F.2d 336 (7th Cir. 1990).

(95) In re Sears Roebuck & Co., 95 F.T.C. 406 (1977).

(96) In re Mentholatum Co., 96 F.T.C. 757 (1980). See also In re D’Arcy-MacManus & Masius, Inc., 99 F.T.C. 324 (1982) (advertising agency).

(97) See, e.g., Stewart v. Von Solbrig Hospital, Inc., 321 N.E. 2d 428, 434 (Ill. App. Ct. 1974).

(98) 69 Cal. Rptr. 493 (Cal. Ct. App. 1968).

(99) Stark v. Allis Chalmers & Northwest Roads, Inc., 2 Wash.App. 399, 399-402 (1970).

(100) See, e.g., Craig N. Smith & Elizabeth Cooper-Martin, Ethics and Target Marketing: The Role of Product Harm and Consumer Vulnerability, J. MARKETING, Summer 1997, at 1, 18-19. See also Terri L. Rittenburg & Madhavan Parthasarathy, Ethical Implications of Target Market Selection, J. MACROMARKETING, Fall 1997, at 49.

(101) See, e.g., Ronald P. Hill, Researching Sensitive Topics in Marketing: The Special Case of Vulnerable Populations, 14 J. PUB. POL’Y & MARKETING 143, 143-48 (1995).

(102) See, e.g., David J. Moore et al., Target Marketing of Tobacco and Alcohol Related Products to Ethnic Minority Groups in the U.S., 6 J. ETHNICITY & DISEASE 83, 83-98 (1996).

(103) See, e.g., Vincent A. Gallagher, Jr., Safety Experts Needed, PROF. SAFETY, March 1998, at 18, 18-23 (noting the safety priorities established by the National Safety Council in 1955).

(104) The new RESTATEMENT (THIRD) OF THE LAW OF TORTS: PRODUCTS LIABILITY [sections] 402A, comment 1 (Proposed Final Draft approved by the American Law Institute, May 20, 1997) states that warnings are not “a substitute for the provision of a reasonably safe design.” At least two cases seem to be following this new provision. See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W. 2d 328 (Texas 1998) (5-4 affirmation of $10.3 million judgment for injuries because a safer design was available when plaintiff, contrary to clear warning, mounted a smaller tire on a larger rim

(105) See, e.g., David Warner, Business News in Brief, NATION’S BUS., Jan. 1998, at 10, 10 11. See also Michael Higgins, Big Keyboard Award Overturned, 83 A.B.A.J. 34, 34-36 (1997).

(106) See, e.g., Benne v. IBM, 87 F.3d 419 (10th Cir. 1996) (carpal tunnel syndrome and overuse syndrome allegedly caused by extensive use of defendant’s computer keyboard–summary judgment for defendant affirmed because plaintiff filed case after period allowed by relevant Kansas statute). See also Shrader v. OMC Aluminum Boat Group, Inc., 128 F.3d 1218 (8th Cir. 1997) (carpal tunnel syndrome due to computer keyboard use).

(107) See, e.g., Contour Mouse Design Aims to Reduce OOS Risk, NZ INFOTECH WKLY., May 12, 1997, at 19, 19-20.

(108) See, e.g., Allie Paul, Establishing an Ergonomically Correct Call Center, TELEMAR KETING & CALL CENTER SOLUTIONS, Nov. 1996, at 20.

(109) See, e.g., Elena Portyansky, Aim … Fire, DRUG TOPICS, June 1, 1998, at 25

(110) See, e.g., For Sleep That Isn’t Hard to Swallow, CHEMIST & DRUGGIST, Aug. 9, 1997, at 12

(111) See, e.g., Greg Muirhead, Iowa Pharmacies to Launch Cognitive Services Experiment, DRUG TOPICS, Apr. 25, 1994, at 82.

(112) See, e.g., Bryce G. Rutter, Intuitive Cooktops: The Human Touch, APPLIANCE MANUFACTURER, Feb. 1997, at 8.

(113) See, e.g., Steven Cinciantelli & John Magdison, Customer Idealized Design: Involving Consumers in the Product Development Process, 10 J. PRODUCT INNOVATION MGMT. 341, 341-47 (1993).

(114) See, e.g., Bruce Nussbaum & Robert Neff, I Can’t Work This Thing, BUS. WK., Apr. 29, 1991, at 58.

(115) See, e.g., Ross D. Petty, Regulating Product Safety: The Informational Role of the U.S. Federal Trade Commission, 18 J. CONSUMER POL’Y 387, 387-415 (1995).

(116) See, e.g., Teri Sprackland, Software Development Tools Take on Integration Challenges, ELECTRONIC DESIGN, May 25, 1998, at 53, 54. But see Owen Edwards, Analog Rebels, FORBES 71, 71-72 (June 1, 1998) (suggesting an interesting opposing trend: good drivers may not be willing to lock the brakes to enable antilock feature to function effectively). See also, Ramona Vassar Isbell & Gerald Brown, Business News, CELLULAR & MOBILE INT’L, Sept. 1997, at 16, 57.

(117) See, e.g., Bruce W. Smith, Lil’Red Toy, OFF ROAD, July 1992, at 40, 41-42.

(118) See, e.g., Pmosing Products, COMPUTER RETAIL WK., Nov. 13, 1995, at 103.

(119) Alan Schwartz, Views of Addiction and the Duty to Warn, 75 VA. L. REV. 509, 512-14 (1989).

(120) See, e.g., Russell W. Belk et al., The Sacred and the Profane in Consumer Behavior: Theodicy on the Odyssey, 16 J. CONSUMER RES. 1, 1-18 (1989). See also Wallendorf & Arnould, supra note 21, at 26-27.

(121) See, e.g., Dianne Neumark-Sztainer & Mary Story, Dieting and Binge Eating Among Adolescents: What Do They Really Mean?, 98 J. AM. DIETETIC ASS’N 446, 446-52 (1998).

(122) See, e.g., Government Weighs Action on Vitamins, Supplements, CHAIN DRUG REV., July 28, 1997, at RX13.

(123) See, e.g., Mark F. Eddy & Gordon S. Walbroehl, Recognition and Treatment of Obsessive-Compulsive Disorders, 57 AM. FAM. PHYSICIAN 1623, 1624-25 (1998). See also Elizabeth C. Hirschman, The Consciousness of Addiction: Toward a General Theory of Compulsive Consumption, 19 J. CONSUMER RES. 155, 155-79 (1992).

(124) See, e.g., Heinza Heckhausen & Jurgen Beckmann, Intentional Action and Action Slips, 97 PSYCH. REV. 36 (Jan. 1990). See also DONALD A. NORMAN, THE PSYCHOLOGY OF EVERYDAY THINGS (1988)

(125) See, e.g., Jack Keebler, Traffic-Tracking Cruise Control, MOTOR TREND, May 1998, at 140, 141-42.

(126) See, e.g., Todd Barlow & Michael S. Wogalter, Alcoholic Beverage Warnings in Magazine and Television Advertisements, 20 J. CONSUMER RES. 1, 2-8 (1993). See also Gauray Bhalla & John L. Lastovicka, The Impact of Changing Cigarette Warning Message Content and Format, 11 ADV. CONSUMER RES. 305, 305-08 (1984)

(127) See, e.g., RESTATEMENT (THIRD) TORTS [sections] 402A, cmt. i. See also Mark Geistfeld, Inadequate Product Warnings and Causation, 30 U. MICH. J.L. REFORM 309, 345-50 (1997).

(128) See, e.g., Karl A. Boedecker et al., Continuing Duty to Warn: Public Policy and Managerial Views, 17 J. PUB. POL’Y & MARKETING 127, 127-31 (1998).

(129) See, e.g., Campos v. Firestone Tire & Rubber Co., 485 A. 2d 305 (N.J. 1984).

(130) See, e.g., Anh Le & Kim Phung Nguyen, The English-Only Tobacco Warnings, S. F. EXAMINER, Feb. 18, 1998 at A15. See also Andree Brooks, Kids Can Get Hurt When Toy Warnings Are Ignored, AUSTIN AM.-STATESMAN, Mar. 15, 1997, at C1.

(131) See, e.g., Ramirez v. Plough, Inc., 863 P.2d 167 (Cal. 1993) (holding that an English only warning was sufficient).

(132) See, e.g., Linda M. Baldwin, Ramirez v. Plough, Inc.: Should Manufacturers of Nonprescription Drugs Have a Duty to Warn in Spanish?, 29 U.S.F.L. REV. 837, 840-65 (1995).

(133) In Mountain v. Procter & Gamble, 312 F.Supp. 534 (E.D. Wis. 1970), the defendant used market tests to defend a product liability action where the plaintiff had an allergic reaction to a shampoo ingredient. The court noted that only 16 complaints had been recorded for test market sales of 3.5 million units in four cities.

(134) See, e.g., Lars Noah, The Imperative to Warn: Disentangling the “Right to Know” from the “Need to Know” about Consumer Product Hazards, 11 YALE J. ON REG. 293, 293310 (1994) (urging that firms use more coherent communications strategies and suggesting that too many warnings reduce the effectiveness of any one warning).

KARL A. BOEDECKER, Professor of Business Administration, McLaren College of Business Administration, University of San Francisco

FRED W. MORGAN, Ashland Professor of Marketing, Gatton College of Business and Economics, University of Kentucky

JEFFREY J. STOLTMAN, Associate Professor of Marketing, School of Business Administration, Wayne State University. Copyright 1998 Karl A. Boedecker, Fred W. Morgan, Jeffrey J. Stoltman.3