An Assessment of the Limitations and Strengths of Existing Product Liability Protections
16th June 2017
An Assessment of the Limitations and Strength of Existing Product Liability Protections
Author: Lauren Kolarek
Queen’s University, Belfast
An action in product liability within the United Kingdom currently may be taken as an action in negligence, or in strict liability under the Consumer Protection Act 1987, which is an implementation of the Council Directive 85/374/EC (as amended by Directive 99/34/EC) on Products Liability. Despite claimants having these two avenues for an action, contemporary issues in product liability have led to much academic debate as to whether product liability in the UK requires reform.
This article proposes that the Consumer Protection Act 1987 very rarely serves its purpose of bringing more protection to the consumer. This represents a substantial limitation in current product liability protections in the UK. Focusing on contemporary food contamination cases, the article will analyse product liability protections within the United Kingdom, United States, and France for comparative purposes in order to highlight the need for a more consumer-friendly product liability system in the UK.
Product liability exists to protect consumers from injuries caused by defective products. Therefore, consumers are able to take a claim against manufacturers, suppliers, retailers, and distributors who have been responsible for providing a faulty product to the public. One of the greatest contemporary issues is the public’s concern with contaminated food products, and yet these cases also represent one of the key limitations in product liability protections. It is no surprise that the public presumes that manufacturers will be held to account when their food has been tampered with or contaminated; however, the United Kingdom’s current means of dealing with product liability cases provides little success for consumers seeking damages for their losses. This is made evident through an examination of contemporary cases of food contamination in the UK.
Through an analysis of product liability protections in cases of food contamination which have occurred in the United Kingdom, this article will show that while the Council Directive 85/374/EC and Consumer Protection Act (CPA) 1987 were enacted in order to ensure that consumers could be afforded easier legal protection from losses caused by defective products through strict liability, these pieces of legislation in fact have presented more limitations for claimants. For comparative purposes, this article will examine the product liability protections in light of food contamination cases within the United States and France, concluding that protections similar to those existing in France would be most ideal and viable to follow in the United Kingdom. Overall, reform to both the Council Directive and the CPA 1987 to match legislation similar to that of France will be suggested.
Product Liability and Food Scandals in the United Kingdom
In January 2013, it was revealed that there were found to be traces of horse and pork DNA in frozen beef burgers which had been sold by Tesco, Aldi, Iceland, and Lidl in the United Kingdom. Interestingly, this discovery was not made within the UK, but rather through samples tested by the Food Safety Authority of Ireland, causing even more distrust among the British public. The case became so worrisome to consumers that it even went to debate in Parliament on 30 January 2013. In the House of Commons, the debate surrounded the issue of detection of food contamination becoming problematic as a result of fragmentation of agencies by the Government as part of a drive to deregulate; however more notably, this scandal in particular highlights many of the flaws and limitations that exist within the UK’s current product liability protections.
The purpose of product liability, as mentioned previously, is ultimately to protect the consumer from defective products. In the UK, a claimant may recover damages in product liability through either an action in negligence, or under the CPA 1987. Not only in food cases, but in all product liability cases, it became clear that there are too many hurdles for consumers to ever have a successful claim in negligence. The Council Directive 99/34 and, as a result, the CPA 1987 is meant to eliminate the requirement to establish fault of the manufacturer (which is required to take an action in negligence) in product liability cases in order to make taking an action in product liability easier for the consumer. Furthermore, the Council Directive also created a unified standard of product liability, so that products in one Member State would not be judged by a lower or higher safety standard than those in another. While the purpose of the CPA is unquestionably positive, in practice it has brought about more limitation.
David Body explains that one of the main issues in relation to the CPA and the Directive is the lack of claims that have been taken under them, however this stems from the absence of clear statutory rules. These two problems put together has arguably led the Directive and the CPA to be ineffectual in key product areas, food contamination being one of these. For instance, there is no clear definition of how courts should interpret a ‘defect’ under Article 6 of the Directive. The definition reads that “a product is defective when it does not provide the safety which a person is entitled to expect, taking all circumstances into account.” Due to a noted lack of clarity, the CPA attempted to provide more clarity, but rather made the definition more complicated. Therefore, Christopher Johnston advises that this definition should be ignored altogether.
Mark Mildred has explained that the main question of defect is meant to be, “how safe are persons entitled to expect a product to be?” but a problem has become that judges seem to interpret this as what the consumer actually expects, instead of what they are entitled to expect. In Tesco Stores Ltd v Pollard, although the child-safety lid on a bottle of dishwasher fluid did not meet the particular British Standard, Laws L.J. explained that the bottle was still more difficult than normal to open, and therefore met the consumer’s expectation. Another limitation exists in the case of A v National Blood Authority, where Burton J. described a difference between standard and non-standard products to highlight a defect.
A standard product performs as the producer intends, whereas a non-standard product is, “one which is different, obviously because it is deficient or inferior in terms of safety, from the standard product: and one where it is the harmful characteristic or characteristics present in the non-standard product, but not in the standard product.” While this definition was used to highlight that a handful of bags contaminated with Hepatitis B were non-standard and therefore ‘defective’ products, this may be applied similarly to food contamination cases and represents a limitation for consumers to be compensated for losses. In the case of the horsemeat and pork DNA being found within beef burgers, for example, there may lie issues in that most beef burgers manufactured at any facility in the UK may contain traces of meats other than beef.
Would this mean that the contaminated burgers are rather a standard product instead of a non-standard product? Furthermore, problems may arise in cases concerning chicken or eggs containing salmonella, for example, due to the fact that it is well-known that raw chicken and eggs typically contain salmonella, but it typically can be eliminated through proper cooking. What then happens when a ‘standard’ product is defective? Academics believe that based on the previous case law, a defect would not be found and therefore consumers would not succeed in court. At this time, however, there is no current case that has dealt with defects in a standard product, and therefore one can see a huge limitation to product liability protections in this area. It should be noted that further limitations will arise through a comparison with American and French protections.
United States Product Liability in Comparison
One may expect that consumers in the United States are afforded more in terms of product liability protections, however, through an analysis of the legislation and case law surrounding food contamination, it is clear that this is not the case. Over three thousand Americans per year die of food-borne illnesses, however less than 0.01 percent of cases are litigated, with even fewer actually being paid compensation. In an attempt to decrease the number of deaths from foodborne illnesses, the Government passed the Food Safety Modernization Act (FSMA) in 2011. Ultimately, the FSMA under Section 206 gives the Food and Drug Administration (FDA) to order mandatory recalls on food products, whereas it was previously at the manufacturer’s discretion to recall food products. While one may expect that this piece of legislation would allow more successful claims for consumers in cases of product liability, this is so far not the case. Therefore, as within the UK, consumers struggle to find justice where there has been a defect in their food products.
One of the main problems for those who have suffered a loss due to food contaminations in the United States is similar to the problems faced in the UK – strict liability involving food is almost always unsuccessful because the courts recognise that most foods cannot be made completely risk-free. Furthermore, strict liability means that rather than focusing on the conduct of the manufacturer or seller, a plaintiff must focus on the defect in the product itself. In the US this means that the product has to have been both defective and ‘unreasonably dangerous’. As a result of strict liability having such high rates of failure for the plaintiff, they will often take a case under negligence instead, meaning that there must be a focus on the conduct of the manufacturer or seller.
While it may not seem that proving that a defendant’s food caused illness, there are many factors working against the plaintiff seeking compensation. Human beings by nature will eat more than one meal or item of food per day, and within one meal may eat a variety of foods that could have caused an illness. In Hairston v Burger King Corporation, for example, the medical expert testified that the plaintiff’s cause of illness could have been from anything she had eaten an hour or even up to a week before eating the defendant’s food and becoming ill. On top of this, other factors that may cause a plaintiff’s illness may also be considered, such as the amount of food that was consumed at the time or other virus. This is one of the greatest limitations that may be identified in terms of product liability protections for food scandals, and in fact is very similar to what may happen in a UK court of law.
Even though the introduction of the FSMA allows a plaintiff to point out where there has been a mandatory recall of a product they have consumed, the case law thus far has shown that judges are only willing to accept that a mandatory recall merely shows that the FDA found that a food manufacturer had deviated from regulation under the FSMA. This in turn does not show that the manufacturer has been negligent. Despite this, if a plaintiff is able to prove that a food manufacturer has failed to comply with their own specific processes and procedures as approved by the FDA, and that failure caused injury, the claim could stand; however, this means that in a sense the FSMA does not truly serve its purpose of allowing plaintiffs to claim for food contamination more easily. This also represents some similarity to product liability protections under legislation in the UK. It has been argued that while the CPA 1987 meant to bring more protection and justice to consumers, it does not in fact serve this purpose and should be reformed to fit a system similar to that in France. Similarly, it seems that the United States’ system of dealing with product liability in food contamination cases may also need reform to fit the needs of consumers.
Despite the listed negative points on American product liability protections in food safety, however, it should be noted that Buzby and Frenzen, in comparing the US to the UK, state that a key difference lies in the fact that economics has “penetrated” the law more so in the US than in England. This point stems from the fact that the UK courts have almost abolished the use of civil juries and do not have contingent fees. Rather, there tends to be a ‘loser pays’ rule, whereby the losing party must pay a substantial part of the winner’s attorney fees. Overall, this rule in the UK system deters more frivolous cases from going to court, and a lack of contingency fees reduces the incentives for lawyers to accept cases with low probabilities of success. In relation to food contamination, ultimately most foodborne illnesses are mild and do not incur enough medical and other costs high enough to make litigation in the UK worthwhile; however, it has also been shown that while cases are more likely to make it to court in the US, the chances of success are extremely low. Thus, it can be concluded in cases of food contamination, the most difficult part for the plaintiff to prove in both the UK and US is causation. It can thus be inferred that both states have areas to improve on their product liability protections in order to provide the consumer with more justice when they have suffered loss from contaminated food and I would not advise that the American system is any better or worse than the system as discussed in the UK.
Product Liability in France and Reform Suggestions
As noted previously, the Council Directive was created with the purpose of harmonising laws in product liability amongst the Member States. This meant that while some countries increased their product liability protections, others were already considered to be more advanced. Therefore, previously existing national legislation may in some cases be more suitable for plaintiffs seeking damages. France was one of the last countries to implement the Directive nationally, as it actually required reduction to consumer protection. In fact, the European Court initially ruled that France’s initial attempt to implement the Directive was unlawful because it imposed wider liabilities than required by the Directive. Due to pre-existing cour de cassation case law being more in favour of protecting consumers than the current Directive, it is also a preferred route in French courts.
Thomas Rouette and Sylvie-Gallage-Alwis explain that French product liability law is much more plaintiff-friendly than in the UK because the courts are keen on granting limitations or even bans for plaintiffs based on the ‘precautionary principle’. This means that although there may not be sufficient evidence to prove that a certain substance or ingredient is dangerous, if there is enough reason to believe that it is dangerous, it may be banned. For example, as of 1 January 2015, the use of Bisphenol A (BPA) in children’s products as well as food products was banned. Furthermore, there was a vote by the French National Assembly to prohibit corn GMOs manufactured by Monsanto after 15 April 2015. France was one of the first countries to put these bans in practice. This represents a clear example of how France’s product liability protections would be more ideal than the current protections in the UK for consumers seeking justice against manufacturers of defective products.
It has been shown that within the UK, a claimant seeking damages for a defective product must prove the precise nature of the product in question’s defect in great detail. This can pose many problems if one looks to cases of food contamination. In application to the horsemeat food scandal as highlighted at this beginning of this article, it would be difficult to prove that there had been a defect causing injury within the UK. This is due to the fact that within the UK and under the Directive, those consumers who may have ingested the contaminated burgers have arguably suffered no loss. A loss under the Directive means that there has either been an injury or death of the person, or criminal damage caused by the defective product; but if the burgers have never caused any illness, arguably there has not been a loss involved. Furthermore, there is debate as to whether one can consider mere ‘traces’ of contamination on the same scale as ‘adulterated’ food with large amounts of contamination causing illness.
In France, in contrast, it is simply enough for a plaintiff to prove that the product did not fulfil the function for which it was intended. As mentioned previously, causal links in cases of food contamination are extremely difficult to establish not only in the UK, but also in the US due to several factors such as the fact that consumers tend to eat many foods during the same period and in multiple places. Nicole Coutrelis therefore suggests that there be reform in the United Kingdom to introduce the presumption of a causal link in cases with a higher threshold. This is something that already exists in France and is therefore a reason why France’s product liability protections are often regarded as ‘plaintiff-friendly’.
Lastly, in terms of defences, there are several more available to manufacturers under UK legislation than in France. Under the Council Directive, defence to a manufacturer is available where the defect is due to compliance with mandatory regulations. Thus, courts cannot impose a standard of safety greater than those prescribed by applicable safety regulations on manufacturers. This seems to be a fair defence to impose on producers, however, if one looks at the horse burgers case, defendants may argue that the contamination was able to occur while in compliance with current UK regulations. This seems unfair to consumers. France, in contrast, therefore has additional language to provisions to show that a defect may still be found even if it complied with safety standards. It may therefore be suggested that the UK reform the CPA 1987 in order to closely match Article 1386-10 of the French Civil Code, as this area represents another limitation within current UK product liability protections.
While food products are extensively regulated in the UK, it seems that when something goes wrong it is extremely difficult for the consumer to hold a manufacturer to account. Thus, change needs to happen to make manufacturers more accountable for their defects, and more importantly, to bring justice to the consumers whom have been harmed. Through an examination and critical analysis of the current product liability protections in relation to food contamination in the United Kingdom, United States, and France, it has been made clear that while the Council Directive 99/34 and CPA 1987 are meant to enforce strict liability on manufacturers of defective products that harm consumers, their purpose has not been successful in practice within the UK. Therefore, it has been suggested that either reform of the Directive and as a result reform of the CPA 1987 should take place to match the national legislation of France.
 Christopher Johnston, ‘A personal (and selective) introduction to product liability law’  1 J.P.I. Law 1, 2
 Adrian Czajkowski, ‘So hungry you could eat a horse…’ (LawBlacks Blog, 16 January 2013) <https://lawblacks.wordpress.com/2013/01/16/so-hungry-you-could-eat-a-horse/> accessed 18 April 2016
 Council Directive (EC) 1999/34 amending Directive (EC) No. 85/374 on the approximation of laws, regulations and administrative provisions of the Member States concerning liability for defective products OJ L141/20
 Duncan Fairgrieve and Geraint Howells, ‘Rethinking Product Liability: A Missing Element in the European Commission’s Third Review of the European Product Liability Directive’  70(6) The Modern Law Review 962, 966
 ‘French Product Liability Law: Towards a Pro-Plaintiff System’  81 Defense Counsel Journal 249, 250