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The American


Warning: This Column Might Give You Something to Think About

March 06, 2007

By Walter Olson

A new book of real-life product labels reveals that the possibility of satire is, alas, vanishing.

If you order a drink at a dockside bar, it may come with a little cocktail napkin printed with a map of the local harbor. A friend recently passed along one of these on which was emblazoned the stern warning, "Not to Be Used for Navigation." I can only say that if you are trying to land your dory or skiff with the aid of a cocktail napkin in the first place, you are probably far beyond the reach of any warning from the rest of us.

Overzealous warning labels, of course, have pervaded American life for a while now. My own favorite is one I've seen on the oblong piece of cardboard that Californians put in their car window to keep the interior from overheating on a hot day: "Do not drive with sun shield in place."

Both napkin and sun shield rated inclusion in a new collection of 101 groan-worthy warning labels published in January by Warner Books. Remove Child Before Folding, which takes its title from the warning on a stroller, contains such invaluable safety tips as: Do not consult a telephone directory while driving your car (#84), do not use bubble-bag packing as a flotation device (#37), do not use a curling iron while sleeping (#26), and do not eat the toner in your printer cartridge (#10). Nor, unless you are a fish, should you eat or otherwise ingest common forms of fishing tackle, whether it be a barbed three-hook lure (#30) or worms whether live or plastic (#49 and 50).

Some of the entries could serve as course materials for a sort of abnormal-psychology seminar in the ways people misuse products. Apparently some persons do attempt to use a whirlpool spa, at grave risk of drowning, without first untying and removing the tarpaulin that covers it. Impatient teens iron the hems and sleeves on the garments they're wearing without first taking them off. Homeowners decide to clear their roof of snow by hoisting a ladder and hauling up a snow thrower intended for driveway use.

The labels, of course, are mostly there because product makers fear lawsuits. The author of the book, Bob Dorigo Jones, heads the anti-litigiousness advocacy group Michigan Lawsuit Abuse Watch (M-LAW) and collects these examples by way of an annual contest. Jones says he's tracked down some of the real-life lawsuits which underlie the warnings, including ones that arose after a man unwisely used a woodworker's drill to perform self-care dentistry, and after a student jiggled a Coke machine until it tipped over, in hopes of getting it to dispense a free drink.

Serving as impetus for it all is product liability law in the United States, which beginning approximately in the 1970s made itself particularly welcoming of lawsuits based on the failure to warn. The manufacturer of even a well-designed and socially beneficial product may face suit if it failed to warn of "reasonably foreseeable" risks to users, even if there is little objective reason to think that such warnings would have made a difference in users' conduct. Peter Huber, who is a colleague of mine at the Manhattan Institute, pointed out in his 1988 book Liability that the "reasonable foreseeability" test for whether a warning is required soon turned out to be "wonderfully circular":

Foreseeing the future depends largely on remembering the past. This means that an accident involving bizarre behavior becomes foreseeable as soon as it has happened. Is it really foreseeable that a teenager might pour cologne over a lighted candle to make the room smell better? It certainly is once it's been done, and the case does not come to court until it has.

The other great thing about warning theories of liability, from trial lawyers' point of view at least, is that once it has been decided that a warning is needed, the form and content of that warning are almost infinitely second-guessable. Even if the manufacturer included some sort of cautionary language, you can always hire an expert to argue that it should have been printed in larger type of an attention-getting color, or in languages other than English, or should have been stamped on the product instead of just recited in the manual. Or the warning should have gone into finer detail (thus a court agreed that a helmet manufacturer should have warned that blood clots were one possible consequence of head trauma; a birth control pill maker listed death as a risk of use, but was found liable because it had not listed nonfatal stroke). Or the warning was delivered to the wrong person (to the patient when the doctor should have been warned, or vice versa).

It's true that even when the resulting lawsuits go forward, many wind up coming to naught: thus a New Jersey appeals court recently reversed a $179,000 jury verdict awarded to a college student who fell out of a loft bed and who argued that it should have carried a warning about that danger. ("Warning: Subject To Gravity.") But the hassle and the legal risk is pressure enough. Thus the continued flood of warnings, redundant or otherwise ("risk of fire" on an artificial fireplace log, "may cause drowsiness" on a sleeping pill, "contains nuts" on a can of nuts).

And over-warning has perverse consequences for the cause of safety itself. It buries the two or three meaningful and non-obvious cautions about, say, a garden pesticide, among dozens of the boilerplate kind. By inuring the public to warnings, it teaches us to tune them out. ABC correspondent John Stossel enjoys unfurling before live audiences the enormous, fine-print-laden package insert that accompanies a prescription for birth control pills, one which it is safe to assume not one user in ten thousand actually reads through to the end.

Do not assume the problem will forever be confined to the United States, since other countries, particularly in Europe, have of late been tending to Americanize their liability systems. Britain's Marks & Spencer makes an appearance at #76, warning on a shirt-tag—just in case you didn't know it already—that children should be kept at a safe distance from open flames.

Original Source:



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