RECOGNIZE: Product misuse is a fact of life RECOGNIZE: Product misuse is a fact of life. Brands must consider how to respond. CPSC Commissioner Adler: ”It is easier to re-design products than it is to re-design consumers.“ “If not for product misuse, there would be no need for the CPSC.” Court in CPSC case: ”This principle… allows the Commission… to treat consumers’ foreseeable action (such as) removing safety shields as creating an unreasonable risk of injury and to issue rules addressing that danger”

Product Liability vs. The Regulator – Not the Same Thing Product Liability: Ultimately, the finder of fact (Judge/Jury) determines whether the brand’s actions were negligent or adequate to protect against the risk. Regulatory: In U.S., Regulator is a preliminary finder of fact if it brings a staff enforcement action. Judge/Jury is still the ultimate finder of fact. CPSC has lots of “persuasive” power.

Product Liability vs. The Regulator – Not the Same Thing On Notice: Being on notice of dangerous behavior could change (increase) the liability of the brand, both in products liability and with CPSC in product safety law. “Prior Similar Claim”: (i) The probability of the product’s defect; (ii) the existence of the danger; (iii) the defendant’s notice that the danger existed; and (iv) causation.

Product Liability vs. The Regulator – Not the Same Thing If you are worried about products liability or the CPSC, then your brand is already losing. If you are not proactive and in front of the issue, then you will be cleaning up the mess later.

Know Your Business Environment “On Notice”: Regulators will expect you, as a business, to be fully conversant in the issues and concerns facing your industry.   “Know what a reasonably prudent manufacturer would know.” - CPSC