By Rupin Chopra and Apalka Bareja
“Warning! Keep out of reach of children.” A precautionary note often found on products which can prove to be harmful for children. With unprecedented rise of goods and their substitutes in the market, it has become very difficult to distinguish between goods that are safe for kids and goods which are not safe. The question that arises herein is whether these warnings are to be mandatorily displayed by the manufacturer on the packaging of product?
Need of Disclaimers on products that are capable of causing injury
In 2018, a case of Skechers Light up Shoes causing burns and blisters to a 6-year-old was brought before the United States District Court Central District of Illinois, indicating that Skechers S-Light shoes, Energy Lights, Twinkle Toes and Shopkins shoes were apparently dangerous and defective.
These shoes were manufactured for the kids making it fun for them to walk, run and stop by getting their attention to glowing lights in their shoes. The shoes carry a lithium battery and are connected with a circuit that is placed in between the soles of the shoes making them capable of causing explosions, burns and injuries.
The likeliness of causing harm is not restricted to kids alone. It is highly probable that the goods belonging to any age group may cause harm in an unprecedented manner to adults as well. It is tough to list items in this technologically advanced age which do not comprise of substances that are likely to cause harm. For example, toy cars, cellphones, torches and even water bottles in modern times contain batteries, Chemicals in Cosmetics, Food and Drinks causing side effects like sleeplessness and allergies.
The Labeling and Packaging details are governed by the Legal Metrology, Packaging and Labeling laws in India. Legal Metrology (Pre- Packaged Commodity) Rules, 2011 state 8 mandatory declarations to be made on the label of every package of a prepackaged commodity. These are:
- Name and address of the manufacturer, packer or importer, as the case may be.
- The name of Country of origin or manufacture or assembly in case of imported products.
- The Common or generic name of the commodity being packaged and in case of packages with more than 1 product name, number or quantity of each product shall be mentioned on each package.
- The number (net quantity) of products contained in each package.
- The month and year in which the commodity in manufactured, pre- packaged or imported.
- The MRP, inclusive of all taxes, of the package.
- Dimensions of the commodity contained in the package. In case of different pieces having different dimensions, all such dimensions of the pieces are to be mentioned.
- Consumer care details- the name, address, telephone number, E-mail address if available of the person who can be or the office which can be contacted in case of consumer complaints.
However, the legal metrology laws in its mandatory declarations list does not state that a declaration or cautionary warning stating the product to be harmful or hazardous is a mandatory one.
Product Liability Action under Consumer Protection Act
The Legal Metrology Law remains silent on the point, however the Consumer Protection Act 2019, with its new provisions hold the manufacturer of the products liable for failing to produce adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage of a product.
The Consumer Protection Act defines product liability under Section 2(34) as “the responsibility of a product manufacturer or product seller, of any product or service, to compensate for any harm caused to a consumer by such defective product manufactured or sold or by deficiency in services relating thereto”
Hence, in view of the aforesaid statutory provision, a product manufacturer shall be liable in a product liability action under Section 84 of the Act:
- If the product contains a manufacturing defect;
- If the product is defective in design;
- If there is a deviation from manufacturing specifications;
- If the product does not conform to the express warranty;
- If the product fails to contain adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage.
In the case of Rajeev Agrahari v. M/S. Society Motors Ltd. & Others, the NCDRC observed that“If manufacturing defects are found during the warranty period, or even in the extended period, a manufacturer cannot deny its liability to rectify the defect at its own cost on the plea of expiry of warranty period.”
Under section 84(1) (e) of the Consumer Protection 2019, a product manufacturer shall be liable in a product liability action, if the product fails to contain adequate instructions of correct usage to prevent any harm or any warning regarding improper or incorrect usage. The manufacturer is liable to reimburse any harm caused to the customer as a result of his defect or malfunction or non- disclosure of components of his products. The product liability of manufacturer is based on the principle of Caveat Venditor which means “let the seller beware” which shifts the responsibility of consumers safety and does not cause any harm to the manufacturer or seller of the products.
After the Consumer Protection of 2019 product liability and product liability action have become an integral part of consumer safety for safeguarding the customers and keeping a strict check on the manufacturers. It is mentioned in implied terms that declaration and precautionary warnings pertaining to the usage of products is necessary. However, it is high time to expressly include the precautionary note in mandatory declarations for the protection of consumer and determination of product liability of the manufacturer and seller under the Legal Metrology and Packaging laws.
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Amisha Bhasin, Intern at S.S. Rana & Co. has assisted in the research of this article.