Dangerous or Defective Products / Recalls

People rely on a nearly infinite range of products in their everyday lives, such as home appliances, computers, automobiles, and even clothing. A defect or dangerous condition in any of these products could cause serious injury. So that people do not have to spend every waking moment worrying about the safety of everything they touch, our legal system has devised several mechanisms to protect consumers from dangerous or defective products in the marketplace. Product safety laws establish guidelines for products before they ever become available to the public, in the hope of preventing injuries from occurring at all. Companies may issue a recall of a product known to be dangerous or defective, or the government may order a recall. If an injury does occur due to a dangerous or defective product, the law of products liability provides the injured party with a means to hold the manufacturer, distributor, or seller of the product liable.

Breach of Warranty vs. Product Safety

Product safety laws generally apply to products that have been determined to have a defect or dangerous condition that affects all or many of the units of the product. If a product is defective, but the defect is unique to that particular unit, the purchaser might have a claim for breach of warranty.

Product Safety Laws

Congress enacted the Consumer Product Safety Act (CPSA) in 1972 for the purposes of protecting consumers against the risk of injury due to consumer products, enabling consumers to evaluate product safety, establishing consistent safety standards, and promoting research into the causes and prevention of injuries and deaths associated with unsafe products. The law created the Consumer Product Safety Commission (CPSC) as an independent government agency with the authority to establish product safety standards, investigate potentially dangerous products, and order recalls of products determined to be dangerous. If no safe alternative to a product is possible, the CPSC also has the authority to ban the product entirely.

The CPSC is responsible for enforcing other federal consumer protection statutes as well, including the Federal Hazardous Substances Act, the Child Safety Protection Act, and the Labeling of Hazardous Materials Act.

The CPSC maintains a website, first launched in 2011, where consumers can report defective products. Shortly after the site’s launch, a company sued to prevent the site from publishing what it called a “materially inaccurate” report that linked its product to the death of an infant. It also sought to remain anonymous during the course of the case, claiming that attaching its name to the lawsuit would cause as much damage as the report it sought to suppress. A federal appeals court ruled in April 2014 that the company cannot litigate anonymously, holding that the public and the press have a right to information about the case. Company Doe v. Public Citizen, et al., 749 F.3d 246 (4th Cir. 2014).


A product recall is a request to return a product, usually after the discovery of a defect or other safety issue. Companies may issue a recall voluntarily based on their own or the government’s investigation as a means of avoiding liability for injuries caused by the product. The government may also order a company to issue a recall. The company must replace the dangerous or defective product for any consumer who returns it, or must make some comparable form of compensation.

Several federal agencies besides the CPSC may order recalls of consumer products. The Food and Drug Administration has authority over food and pharmaceutical products, while the U.S. Department of Agriculture may order recalls of meat, poultry, and eggs. Recalls of automobiles, aircraft, and boats are under the authority of the National Highway Traffic Safety Administration, the Federal Aviation Administration, and the U.S. Coast Guard, respectively. All of the agencies maintain a website that provides information on product recalls.

Products Liability

The tort claim of products liability exists at the state level. There is no federal products liability statute. If a dangerous or defective product causes an injury, the injured person may recover damages from the responsible party, usually based on the type of defect.

A design defect occurs before the product is ever assembled or produced, often making the product inherently unsafe. A manufacturing defect occurs during the production process and therefore may only affect some units of the product. A marketing defect is when the product might not have any physical defects, but it is unsafe for use according to its advertising materials.

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