Product Liability Marketing Defects: Bringing or Defending Claims About Product Labels, Instructions, or Promotion

This CLE webinar will offer a comprehensive overview of claims for and defenses to product liability claims based on marketing defects. The panel will address improper labeling, insufficient instructions, inadequate warnings, and the role and potential liability of social media influencers.

Manufacturers can be liable for injuries caused by something they say or write about their products, both before and after a sale. This includes what is said orally, in writing, or on the internet, such as labels; product manuals, videos, and instructions; warnings; and advertising or promotions. Presumably this includes anything generated by any software or AI. Even what third parties say may be problematic. Attempts to exclude evidence of representations available at the time of injury but not actually seen have typically not succeeded. Plaintiffs alleging that product information made the product unreasonably dangerous will support more theories of liability than just strict liability or negligence, which could account for a noted uptick in claims.

The test for determining whether a label, warning, or product instruction is defective is subjective. The key issue is whether communications or representations about a product were false or caused someone to use it in an unsafe way or to overlook potential danger. Much depends on who the intended user was. Two common sources of claims are inconsistent messaging that contradicts warnings or creates confusion and overly optimistic marketing about emerging products that suggests capabilities the product does not have.

Defendants have strong defenses and themes. They may urge that user expectations should be based on the product's actual design and instructions, not puffery nor magical thinking. One of the strongest defenses is product misuse, even if manufacturers still have to anticipate and warn against foreseeable misuse. Many cases require deep dives into predictable human behavior and what improper uses a consumer might attempt as well as how a consumer might mishandle the product.

Listen as this panel of seasoned practitioners offers guidance on product liability based on marketing defects from improper labeling, insufficient instructions, inadequate warnings, and the role and potential liability of social media influencers.