An extract from The Product Regulation and Liability Review, 7th Edition

Introduction to the product liability framework

Product liability in the United States is complex and constantly evolving, governed by distinct legal systems in each of the 50 states and the federal government. Each state has developed its own constitutional and statutory framework and its own common law through decisions by the courts. Owing to the peculiarities of the US federalist system, product liability lawsuits sometimes end up in federal courts, which must nonetheless apply the applicable state's law of product liability. Many industries are heavily regulated by the federal government and federal regulations. All this leads to a complex, interesting, and sometimes confusing, interaction between state and federal law. Fortunately, many of the most important principles of product liability are similar throughout these jurisdictions. This chapter contains an overview of these principles, without purporting to describe every statute, regulation or common-law rule that may apply in a given product liability lawsuit.

As a general matter, US product liability law, in its current state, favours the right of an injured consumer to sue. The litigation environment in the United States for product manufacturers may present greater potential exposure and liability concerns than elsewhere.

Regulatory oversight

The federal government has created a number of administrative agencies to regulate product safety. Among the most prominent are the Consumer Product Safety Commission, which, as the name suggests, oversees the safety of consumer products; the Food and Drug Administration (FDA), which, inter alia, regulates the marketing and labelling of food and prescription drugs; the National Highway Traffic Safety Administration, which regulates motor vehicle safety; the Federal Aviation Administration, which governs all aspects of air transportation; the Federal Railroad Administration, which oversees trains and railways; and the Occupational Safety and Health Administration, which was created to prevent injuries in the workplace. Under certain circumstances, the rules and regulations promulgated by these federal agencies may pre-empt conflicting state law, barring an otherwise viable product liability claim. Each state may also have its own laws, agencies and regulations governing some aspects of product safety.