For most consumer product companies, in-house counsel and risk managers can never be too careful when it comes to providing warnings or other disclosures that describe (and qualify) the potential risks and benefits associated with their products. Warning and misrepresentation litigation has become the predominant form of consumer product litigation in the United States. While most manufacturers and suppliers understand that they have some duty to warn about their products’ potential dangers, crafting “adequate” warnings that will be understood and followed by product users may feel like reading tea leaves. Similarly, with the recent wave of false-advertising class actions, companies are often left wondering what inadvertent omission or implied claim could be the subject of the next lawsuit.
The Duty to Warn. The origin of a manufacturer’s duty to warn is derived from a fundamental principle of American tort law: a supplier of a product is liable to foreseeable users for harm that results from foreseeable product uses—or even misuses—if the supplier has reason to know of the danger, yet fails to exercise reasonable care to inform the user. Restatement (Second) of Torts, section 388.
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