As time goes on, product liability responsibility has been weighing more heavily on the manufacturer rather than the end user. This has resulted in a widespread rise of issues and legal cases that can potentially put the manufacturer at risk in various areas throughout their product’s lifecycle. That includes training materials, manuals, and on product warnings – and even advertising.
According to Section 102(2) of the Uniform Product Liability Act, product liability includes "all claims or action brought for personal injury, death, or property damage caused by the manufacture, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, or labeling of any product."
From Engineering to Sales
When it comes to liability, the advertising team must be mindful of several different areas, the most common being referred to as “marketing defects”; that includes, failure to warn, inadequate use directions, and misleading advertisements. The literature and visual advertising that goes into a product’s marketing can be held liable for misinformation, inconsistency, or false promises. This is why it’s so important for every member of the product team – from manufacturing to marketing and sales – be on the same page with one another.
Manufacturers are required to provide adequate warnings and instructions to the purchaser to allow them to use the product safely and correctly. Injury, damage, or loss resulting from inadequate or incorrect information can be the basis for a product liability lawsuit against the manufacturer. Warnings and instructions usually accompany the product and possibly are included in some of the literature that the manufacturer uses to sell the product. This means that any oral or written statements made by anyone in the supply chain can also be used to argue that the warnings and instructions were inadequate, confusing or inconsistent, or that the marketing literature undermined the severity of the warnings provided with the product. The big picture outcome of this: while the marketing department may have caused confusion in the marketplace, the responsibility and liability ultimately falls back onto the manufacturer themselves.
Consistency on all Fronts
An area of importance for product advertising materials is the potential for inconsistencies between safety and operational information in the marketing literature and in the instructions and warnings. In other words, you need to make sure that your engineering team is communicating well with your marketing team. While it’s not necessary to place the entirety of safety information into the marketing and advertising deliverables, confusing and misleading information that a customer may rely on in place of the product’s actual warnings and instructions should be avoided.
In addition, inconsistencies between representations in marketing and in the field by sales people can also create problems. Sales representatives can create express warranties or can inappropriately alter the advice in carefully crafted instructions with simple statements made during the sales process. Customers often remember what a sales person conveys as a “promise of performance” and will refer to it if an issue arises while trying to carry out that promise the full extent.
Key Advertising Practices
In terms of advertising your machinery with consistency in mind, there are a few key practices to keep in mind to help avoid liability:
- Unsafe practices or conditions should not be shown unless it’s clearly noted that they are intended for demonstration purposes only. For example, removing guards or shields from equipment for illustration.
- Product/machinery users in advertisements and promotional sales material should always be wearing the appropriate personal protective equipment. There should be no room for confusion or assumptions from a buyer or user.
- Show the product with all safety equipment, including the appropriate labels and guards. Even if your intention is just a solo product shot, it’s best to include the safety attachments in advertising materials.
- All ads should accurately represent the product’s capabilities. Performance claims should be reasonable and in accordance with design specifications.
Choose Your Words Carefully
In a manufacturer’s training literature and advertising, wording that should always raise a question and be considered carefully are absolutes or clear statistical statements that can be challenged even if they are not facts. Your choice of words in advertising is one of the most important factors to consider. You may claim that your product has the best quality, but saying that it’s the “strongest” or “safest” on the market can be objectively tested and challenged by a customer or a competitor. A user could also think the product can be put under forces that ultimately result in product failure and injury.
Assessments for Best
Here at Clarion Safety, we understand that product safety and risk reduction can be difficult to navigate, with many varying factors and considerations. That’s why we offer a variety of comprehensive machinery safety and risk assessment consulting services. Our consulting expertise includes product safety, machinery risk assessments, manual audits and design, label warnings reviews, and more. Reach out to our team of safety professionals if you have any questions or concerns of what service is right for you.