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Product Liability Issues in Packaging

March 1, 2005

Introduction

Packaging manufacturers often have to focus on meeting a myriad of regulatory requirements, from complying with regulations governing food contact to child-resistance requirements on drugs and household products. In addition, packaging producers and customers in many applications are vigilant about the need for packaging to protect sensitive contents, like drug products or foods, against contamination and tampering, generally.

This concern on the part of industry, government, and the public has only been heightened since 9/11 with the specter of bioterrorism, making packaging integrity a critical aspect of packaging performance. At the same time, under general product safety and liability principles, packaging manufacturers also have to use care in making their packaging product reasonably safe as a "product" in and of itself. And as a "product," products liability law applies to jars, bottles, boxes, plastics, tins, and other containers, just as it does to the very products or substances inside, even when the products inside are defect-free.1

Although the number of reported cases of lawsuits by individuals allegedly injured by packaging is few, and the number of successful suits even fewer, the potential for litigation is always present. Sometimes incidents involve situations where the injury was involved a known hazard associated with the product. Tin cans, for example, can cut, sometimes severely. Glass bottles can break and shatter when dropped. Injuries associated with these types of incidents may fall in what is called the "open and obvious" category.

Sometimes, however, incidents involve some hazards that are not expected. Claims that fall in this category include an exploding bottle or bottle top that strikes an eye, or the glass jar that shatters when a person tries to reseal it.2 These cases may involve a hazard that is unexpected in the context of the use involved. In other words, a consumer might anticipate that a glass jar would shatter when dropped on the floor, but would not necessarily expect the glass to shatter while being resealed.

Sometimes cases are a bit more odd, such as lawsuits involving allegations that the package caused injury because it was too hard to open. Consider, in this category of odd cases, the cardboard box of diapers allegedly so well-glued that when a pharmacist tries to open it at the request of a customer, she feels her arm "pop."3 Or consider the woman who slips on a French fry on the floor of a fast-food restaurant. A not-so-surprising product liability complaint would be that the restaurant was negligent because its employees should have discovered the French fry and removed it sooner. But the plaintiff may also assert, as occurred in an actual case, that package in which the French fries were sold was defectively designed "because the package allowed French fries to fall out and, presumably, land on the floor" in the first place!4

Ease of "openability" (or more specifically, difficulty in opening a container or package) can be a source of consumer frustration, and in some instances, lawsuits. In the post-9/11 environment, however, we expect that applying a standard risk/utility analysis, U.S. courts will recognize the following: the primary purpose of packaging is to protect the contents from damage, maintain freshness, and, in some important categories, like food and drug products, provide a barrier to tampering. Consequently, packaging product liability cases, particularly cases alleging that products are unduly difficult to open, should remain relatively rare.

Conclusion

While the primary function of any packaging product is of course to protect the contents involved, manufacturers and sellers of packaging products should be mindful of the potential that physical injuries or property damage alleged to be caused by packaging products have been the subject of product liability lawsuits in the U.S. These cases are rare, and largely unsuccessful, but serve as a reminder that it is always useful to consider ways to minimize product liability exposure. In so doing, producers will want to assess product integrity, openability, ease of use and similar factors with the need to provide reasonable protection for the contents involved.

FOOTNOTES

1See, e.g., Karle v. Natural Gas Distribution Corp., 448 F. Supp. 753, 767 (W.D. Pa. 1978) (Pennsylvania's strict products liability regime extends to packaging). Many states' products liability statutes, such as Connecticut's, also make it expressly clear that the statute governs all personal injury or property damage caused by the manufacture, design, warnings, marketing, or packaging of any product. See Ct. Gen. Stat. §52-572m(b).

2DiEnno v. Libbey Glass Div., 668 F. Supp. 373, 375 (D. Del. 1987); Welge v. Planters Lifesavers Co., 17 F.3d 209, 210 (7th Cir. 1994).

3Tanaglia v. Procter & Gamble, Inc., 737 A.2d 306, 307 (Pa. Sup. Ct. 1999).

4Martin v. Burger King Corp., Nos. 964527E, 96-4527-E, 1998 WL 1181145 at * 1 (Mass. Sup. Ct., Oct. 13, 1998).