Warning Labels

When manufacturers overwarn, it dilutes the impact of warnings that consumers really need to know about. Over-warning is a serious problem — not to be confused with global-warming, which is also really bad.

Given some of the silly and dangerous ways consumers misuse products, one can have sympathy for manufacturers that don’t want to take chances. I’ve done consulting work writing product warnings and instructions for manufacturers and confess that I advise erring on the side of giving too many warnings.

But to waste space and, more importantly, short consumer attention span on worthless warnings that lead with telling consumers to:

1. Read these instructions.

2. Keep these instructions.

3. Heed all warnings.

4. Follow all instructions

… is just stupid. The most important warnings should come first. Even diligent consumers are going to tune out quickly reading these warnings (which led to the headline, a reversal of the famous line from Jerry McGuire, “You had me at hello”). No manufacturer has been or ever will be held liable for failing to warn consumers to read and keep their warnings and instructions.

Meanwhile, the list of warnings for this apparently incredibly dangerous alarm clock went on much longer, but I cut it off.

A Facebook friend posted this picture of a candy wrapper, featuring the warning:

MAY CONTAIN TRACES OF PEANUTS AND HUMAN FLESH

Not sure where he got it or if it’s real. It doesn’t look Photoshopped (but it’s hard to tell sometimes).

Human tissue does sometimes end up in food products during the manufacturing process, probably more often than we would want to know.

My favorite “flesh in food” cases is a 94-year-old Mississippi Supreme Court case where the plaintiff found a human toe in a plug of chewing tobacco. That’s one way to “kick” the habit.  Har, har.

The plaintiff couldn’t prove how the toe got there, so he invoked res ipsa loquitur. For non-legals, res ipsa loquitur is a procedural device that allows a tort plaintiff to get his case to a jury despite a lack of specific evidence that the defendant was negligent if: (1) the injury-causing event is of a nature that ordinarily would not happen unless someone was negligent; and (2) the defendant had control of the instrumentality at the time the negligence most likely occurred.

I have always loved the Mississippi court’s terse analysis of the first element: “We can imagine no reason why, with ordinary care, human toes could not be left out of chewing tobacco, and if toes are found in chewing tobacco, it seems to us that somebody has been very careless.” Pillars v. R.J. Reynolds, 78 So. 365 (1918).

But is human flesh getting into food really such an extensive problem that manufactuters feel obligated to warn about it? This is either a fishy warning or our food supply and worker safety programs are in worse shape than believed. Or, a third possibility is that California passed a law.

The goal in crafting a pictorial product warning is to come up with a picture that can be universally understood, even by people who speak different languages or are illiterate. But it’s darned difficult to capture most warnings in the form of a simple drawing.

Case in point: this warning on a 3M paint-fumes mask.  You’ve seen or used these before. They are paper masks held to one’s face with rubber bands that go behind the head.

But what is this pictorial warning trying to say?  The accompanying text helps, but, again, the whole idea of pictorial warnings is that they are supposed to be understandable even by people who can’t read the written warning.

So just concentrate on the picture itself and ask, “What is it saying?

Here are possibilities that come to mind:

— “Smoking Area”

— “Help, My Lungs Recently Exploded”

— “Totally Awesome Bong”

— “Short Pants Are Caused By Clouds”

And what’s up with the limitation in the written warning that the respirator helps keep “non-harmful dusts and certain particles out of your nose, mouth and lungs”?  Isn’t the whole point of buying them to keep out harmful dust and particles?

iTunes software is good stuff for downloading the latest crappola that the recording industry is outputting (editorial comment courtesy of a music lover still stuck in the 60s and 70s), but just remember that iTunes software is:

[N]ot intended for use in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control systems, life support machines or other equipment in which the failure of the Apple software system could lead to death, personal injury, or severe physical or environmental damage.

Here’s an interesting warning, from a former student at Florida International University College of Law.

The warning is on the outside of a toilet compartment on a recreational boat.  I think I know what it means, but surely they could have worded it better.

What kind of a consumer would voluntarily ingest a hot sauce so dangerous they must first sign a disclaimer/waiver acknowledging “serious injury can be caused if applied to skin, eyes or and exposed body parts,” and waiving their legal rights in the event of injury, while also certifying they are not under the influence of drugs or alcohol at the time of signing? (Click on thumbnail to expand.)

Answer: The only answers coming readily to mind are an unreasonable consumer or one with an asbestos-lined stomach. If this product–a hot sauce manufactured by a burrito company and called, among other names, Smack My Ass and Call Me Sally–is dangerous enough to require a disclaimer before consumption, should it be marketed at all?

The sauce is reportedly 700 times hotter than tobasco sauce and 300 times hotter than a jalapeno.  Looking forward to trying it before my next emergency colon surgery.

But believe it or not, there are much hotter sauces available! The heat of hot sauces is measured in Scoville units. Smack My Ass and Call Me Sally rates at 1.5 million Scoville units.  The hottest sauce, according to a site that tracks these things, is Blair’s 16 Million Reserve, which rates 16 million Scoville units, or 3200 times hotter than a jalapeno.

Is there any other consumable product for which buyers must sign a disclaimer/waiver?

The waiver of rights may or may not be valid depending on the accuracy of the risk information in the disclaimer. If hot sauces of this nature were determined to be “unreasonably dangerous,” the waiver would not be upheld. Every product carries a warranty of merchantability that the product is fit for the ordinary purposes for which such products are used; here, human consumption.

But since several different brands of super-hot sauces exist, maybe they really aren’t dangerous. Maybe the disclaimer is even part of a marketing plan, since boasting the hottest of hot sauces appears to be a selling point.

Professor and editor of the Torts Prof blog, Bill Childs, posted this picture of a warning sign at the new Harry Potter attraction at the Islands of Adventures theme park in Orlando.  He noted that he particularly enjoyed that even the warnings are themed, as this one comes from the “Department of Magical Transportation.”

See my ABA Journal column on Hogwarts Torts, suggesting that no student in the history of education has been subjected to as many torts as poor Harry Potter.

Glittery makeup is good stuff, for Halloween, your next glam band, or just for fun. And you can see how much fun this woman on the packaging is having with it. Go ahead and click on the image to expand it, so you can get the full realization of what an awesome opportunity this stuff presents to have a good time.

But wait, what’s that warning in small print on the back of the packaging?

Do not place glitter near the eye area.

Longtime Lawhaha.com supporter Lihwei Lin sent this picture of a sticker inside a taxicab operating in the Pacific Rim.

Customers in these cabs must have been especially happy to reach their destinations. How could they not be? On entering the vehicle they are warned (italics added):

SAFETY-FIRST Please put on your seatbelt prepare for accident.