Why the courts play such a large role in unsafe product recalls

Late last month Ikea agreed to recall 29 million children’s chests and dressers that had been sold in the United States and Canada since 2002. After pressure from the public and state media in China the company extended the recall to that country as well, adding another 1.7 million units to the total, according to a recent article in Slate.

“The Swedish company announced the American recall after the deaths of at least six toddlers, cases where the near-ubiquitous Malm and other models of chests and drawers toppled over and fell onto children,” Slate reported. Yet as the online magazine also reports, Ikea says it has no plans to recall millions more units that have been sold outside North America and China.

According to the Consumer Product Safety Commission “the recalled chests and dressers are unstable if they are not properly anchored to the wall, posing a serious tip-over and entrapment hazard that can result in death or serious injuries to children.” The announcement on the CPSC website (see link below) noted that the agency and Ikea are aware of three fatalities and at least 17 injuries linked to the chests tipping over. All three of the tragic deaths involved children under the age of two. In each of these cases the chest or dresser in question was not secured to a wall.

There are two significant legal issues at the center of this recall. First, there is the relatively straightforward question of corporate responsibility and liability. Ikea has been selling versions of these items for over a decade so it is difficult to believe that the company has not been aware of the issue for some time. Sadly, as is so often the case, it took a long time for the CPSC to act and when the agency did issue a recall its statement stressed that this was a voluntary measure agreed on with the company. As I have written on numerous previous occasions, I admire the CPSC and the important work it does, but wish it would move in a faster, more forceful, manner in situations like this. The vast majority of all CPSC recalls are voluntary. This probably saves some taxpayer money, but it also means that dangerous products can sometimes stay on the market for months or years while the government and a manufacturer negotiate the terms of the recall. Second, we need to look at the legal question raised by product warnings. Does the fact that the company advises buyers to anchor the dressers to a wall absolve it from responsibility for making and selling a dangerous product if buyers fail to follow those directions?

Under Oregon law product liability can be established in any of three ways: via a “design, inspection, testing, manufacturing or other defect”, through a failure to warn about possible dangers or “any failure to properly instruct in the use of a product.” There is an important caveat, however: as the 1993 case Glover v BIC Corp (987 F2d 1410) established: “a “product with (a) manufacturing defect cannot be made nondefective simply by placing (a) warning on the product.” In other words: warning labels are important, but they do not, by themselves, clear a company of responsibility for the safety of the things they manufacture and sell.

Keeping that in mind, we need to ask one more question: does Ikea really believe it has done anything wrong? The fact that after agreeing to the recall it did not extend it worldwide is quite telling. Only public pressure whipped up by government-controlled media caused the company to extend the recall to China. As Slate reports Ikea has every intention of continuing to sell the chests in Europe and other parts of the world unless government regulators make them stop. As a Portland attorney practicing in Oregon and Washington and focusing on both injuries to children and identifying dangerous products I see this case as an important reminder of how essential our court system is. It offers ordinary Americans a chance to confront large companies when they fail to do the right thing for the communities of which they are part. We need to ensure that families who suffer because of corporate negligence are always able to have their day in court.

 

Slate: Why Ikea Will Continue Selling Dangerous Dressers Wherever It Can Get Away With It

Resources:

CPSC Ikea MALM Recall Notice

OregonLaws.org: Product Liability