Misrepresentation in Product Liability

Product liability occurs when the manufacturer or seller of a defective product allows that defective product to get into the hands of a consumer. When a manufacturer or seller misrepresents a product, that misrepresentation can be the basis for a product liability action. In the product liability context, misrepresentation occurs when product advertising, packaging, labels, or other product information available to consumers misrepresent material facts concerning the quality or use of the product.

Some examples of how misrepresentation can lead to product liability are as follows:

• When a product salesperson overstates what the product can do, the safety of the product, or what the product can be used for. For example, if a salesperson states that a container is microwave-safe, but the product explodes after having been microwaved for a long period of time, the manufacturer or retailer could be held liable for product liability misrepresentation.
• When product information fails to warn of risks of the product. For example, if a child’s bicycle packaging depicts a child riding the bicycle without a helmet, the bicycle manufacturer could be held liable for misrepresentation if a child were injured as a result of riding the bicycle without a helmet.
• When product information fails to list some ingredients of a product. For example, if a manufacturer of candy bars fails to include an ingredient in its packaging, it would be subject to liability for misrepresentation if a consumer were injured as a result of consuming the ingredient not listed on the packaging.

Misrepresentation in product liability can be either negligent or intentional. Negligent misrepresentation occurs when the manufacturer did not intend to misrepresent the product. Intentional misrepresentation occurs when the manufacturer or seller of a product sets out to mislead the consumer about the product’s safety, effectiveness or quality. A finding of intentional misrepresentation is rare as the manufacturer or seller’s intent is difficult to prove.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.