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The "Contains Peanuts" warning on a peanut jar

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Stuart Mauney laughs at the "CONTAINS PEANUTS" and "Manufactured on shared equipment in a facility that processes peanuts" warnings on a package of "Hand-Cooked Virginia Peanuts" (presumably manufactured by Jumbo Virginia Peanuts, by Mauney's description). This offends Max Kennerly, who calls it a "harmless warning," and correctly notes that this particular wacky warning is mandated by the Food Allergen Labeling and Consumer Protection Act (FALCPA), rather than by in-house counsel responding to the threat of suit.

But one should note that it's not a harmless warning. As I blogged on Overlawyered in 2007,

David Rossmiller blogs:
My experiences growing up in NoDak and later working as a crime reporter may not be typical, and perhaps the people I came to know were by some measures outside, shall we say, the social mainstream, but my first thought when I saw these purportedly wacky, useless warning labels was this: "I can see someone doing that!" Personally I've seen folks do much more ridiculous things many times.
The issue is whether people doing "ridiculous things" should have a cause of action for their own failure of common sense, or whether we require manufacturers to treat all of their adult customers like infants on pain of liability.

Such overwarnings have real social costs: as numerous studies have documented, if one's personal watercraft manual says "Never use a lit match or open flame to check fuel level," one's going to be less likely to slog through the whole thing and find the warnings that aren't so obvious. In many cases, the "failure-to-warn" is really just a Trojan horse to force the deep pocket to become a social insurer. In the Vioxx litigation, Mark Lanier has accused Merck of making too many warnings, and thus "hiding" its warning of VIGOR cardiovascular data. This effectively holds a manufacturer strictly liable for failing to anticipate with perfect foresight what risks will accompany which consumers, and tailoring its warnings on that micro-level--and if anyone regrets taking the risk later, they can always complain that the warning was legally insufficient for failing to be scary enough.

The wacky warning awards are often entertaining fluff, to be sure; the marginal harm from a "Do not iron" warning on a lottery ticket is infinitesimal, and is probably there as an anti-fraud device rather than as a product-safety mechanism. But ATLA, abetted by sympathetic law professors and credulous or disingenuous journalists, has engaged in a mass campaign to make equally silly warning cases--such as the McDonald's coffee case, where Stella Liebeck complained that the warning on her cup of coffee wasn't "big enough" to adequately warn her not to spill her coffee in her lap and sit in the puddle for ninety seconds--aspirational, rather than outliers. The wacky warnings are the canaries in that coal mine.

See also. The silly warning cases aren't just hypothetical, either. As we discussed just a few days ago, a warning of "KEEP AWAY FROM FLAMES, PILOT LIGHTS, STOVES, HEATERS, ELECTRIC MOTORS, AND OTHER SOURCES OF IGNITION" was insufficient to protect Blitz USA from liquidation in bankruptcy after David Calder inserted the nozzle of a $3.99 gas can into his wood-burning stove and successfully sued Blitz for the resulting catastrophe. And 117 people lost their jobs, and an untold number of people will be injured because they will be using substitutes for gas cans that are less safe.

Now, perhaps the benefits of having a simple-to-apply regulation that successfully protects people against allergens outweighs the marginal overwarning cost of this particular "contains peanuts" warning. But it's far from clear, and the reformers who warn of the problems of overwarning caused by our jackpot-justice product-liability regime are identifying a real public-policy problem that on balance makes us less safe.

4 Comments

Overwarning is a potential problem, but it's a case-by-case situation. I don't think there's any question that, when it comes to the peanuts, there's no "overwarning" danger, and the benefits of a simple law of general applicability are worth it.

Calder was not a failure to warn case, it was, like most gas can cases, a strict liability case predicated on the lack of a flame arrestor (i.e., that little metal screen). There were some references to warning issues in the post-trial, but even Blitz USA conceded that failure to warn wasn't part of the jury trial, the jury trial was just about the failure of the $3.99 gas can to have a $0.01 piece that would have prevented the accident (and would have prevented a lot of similar accidents).

Vioxx is another interesting one, just this month the American Heart Journal had a study concluding that Merck deliberately concealed heart attack risks for years; the label didn't "hide" the risks, it didn't convey them at all, it didn't convey anything remotely resembling the truth. Liebeck, too, revolved primarily around McDonald's intentionally selling coffee at a far hotter temperature than anyone else on the market, rather than a failure to warn about coffee in general.

Another lawyer making excuses for the idiots that keep him working? As if a "flame arrestor" is going to stop that moron from pouring gasoline on a burning fire.

So a flame arrestor would have made it perfectly safe to pour gasoline onto a naked flame huh? And a flame arrestor would have prevented this incident huh?

No flame arrestor will prevent flare up (explosion if you will) as the petrol vapour in the stove ignites and sprays petrol liquid over the inside of the room

No flame arrestor will prevent petrol running out the bottom of the stove onto the floor and then catching fire.

No flame arrestor will prevent a build up of petrol vapour in the enclosed space called a room.

No flame arrestor will prevent petrol pouring out of a canister dropped on the floor (because the stove had caught alight/exploded).

There was one cause of that particular incident and that was the person who poured gasoline onto a naked flame in an enclosed stove in an enclosed room, and only one cause of the daughter's death.

The American Heart Journal study is done by the same plaintiffs' experts who previously made the same bogus claims. http://www.merck.com/newsroom/news-release-archive/corporate/2009_1123b.html

It's worth noting that Max's recounting of the McDonald's case is also fictional: the allegation made in the Liebeck case is that any coffee sold above 140 degrees makes it "unreasonably dangerous," and no commercial seller of coffee sells it below 140 degrees. Even the narrower claim made by Max -- that McDonald's temperature was unusually high -- is false. Starbucks sells their coffee hotter than McDonald's, and Dunkin Donuts, Wendy's, Burger King, and others have been sued for third-degree burns caused by coffee. Coffee is hot, as the warning on Ms. Liebeck's cup reminded her.

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Manhattan Institute
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