For this installment, we turn to an aspect of the implied warranty of merchantability that has not gotten its fair share of attention here: what is “the ordinary purpose” for which your product is used?  It seems like a simple question, but it can be deceptively tricky.

To illustrate, here’s a case I stumbled across while working on something else.[1]  A woman bought birth control pills.  She used them as directed.  She got pregnant.  She sued the manufacturer alleging, among other things, breach of the implied warranty of merchantability because, in the Court’s words, “the failure of the birth control pills to act as effective contraceptive was a substantial factor in causing her unintended pregnancy” and therefore they were not fit for the ordinary purpose for which they were used.

Now, before going forward, I want to be clear about something.  There are attorneys who dedicate their entire practice to drug and device law – some of them even have a very good blog, creatively titled Drug and Device Law – but I am not one of them.  I just want to look at this from a pure UCC/warranty perspective.

With that said, this claim struck me as being doomed to fail.[2]  The ordinary purpose of birth control pills, surely, is to reduce the chance of pregnancy,[3] not eliminate it entirely.[4]  Or at least that’s what I announced in my office to nobody in particular.  And indeed, that’s all the packaging claims, and no doubt the manufacturer, prescribing doctor, and pharmacist are aware of what’s on the packaging.  But that’s not what the plaintiff alleged: she alleged (at least implicitly) that the ordinary purpose of birth control pills is “to act as effective contraceptive” such that there will be no pregnancy ever when one takes the pills as prescribed.  And you know what?  I find it entirely plausible that there are some birth control users who believe that so long as they adhere to the instructions, they can be entirely certain they will not become pregnant.

So, how do we measure the “ordinary purpose” for which your goods are intended?  By what the customer expects?  What a reasonable customer would expect?  By the representations you make about the product?[5]  What the marketplace as a whole expects? 

One line of authority runs as follows: the inquiry “focuses on the expectations for the product when used in the customary, usual and reasonably foreseeable manners.”[6]  This seems to embrace three subsidiary questions.  First, the “expectations” language, when considered in the context of the entire standard, seems to ask what the buyer expects.  Second, the “customary” and “usual” language suggests that, whatever a particular buyer’s subjective expectations, “ordinary use” must be tempered by how most buyers generally will use the product.  Third, the “reasonably foreseeable” language suggests that the resolution of how “most buyers generally will use the product” must in turn be tempered by what a manufacturer reasonably can expect.

Another line of authority suggests a different standard: “ordinary purposes” means “not only those uses intended by the manufacturer or seller, but those which are reasonably foreseeable.”[7]  This places the inquiry squarely on the manufacturer: what it intended, and what it should have seen coming.  Presumably, though, what is “reasonably foreseeable” is informed, at least in part, by the marketing of the product and actual customer experiences relayed to the manufacturer.

In a third formulation, “fit for ordinary purpose” was construed to mean the product has “an inherent soundness which makes [it] suitable for the purpose for which [it is] designed[.]”[8]  Of course, this focuses the entire inquiry on the manufacturer’s design intent, and could generate a very different answer than the two lines of authority described above.  That same case, however, continues to hold that “ordinary” means “common” or “average,” which seems, when combined with the word “use,” to turn the analysis back to how most or many buyers will use the product in practice.  Even so, this line of authority appears to leave no room for a “reasonably foreseeable” analysis in determining “ordinary use.”  In fact, the Court was fairly strong on that point; you can meet me in the footnotes for more.[9]

You can see why this might matter in the event of litigation.  Taking our example from above – the purchaser of birth control pills – the third line of authority would seem to leave no room for her claim, because the design intent behind the birth control pills surely was to reduce risk of pregnancy, not to eliminate it.  The second line of authority, with its emphasis on use intended by the manufacturer, would also counsel in favor of dismissal, though the plaintiff may be saved by establishing that it was reasonably foreseeable that buyers would use birth control to eliminate entirely the risk of pregnancy.  Finally, the first line of authority would seem to leave the plaintiff with plenty of room to argue.

What can we take from this?  First, this uncertainty underscores the importance of disclaiming the implied warranty of merchantability.  It raises a lot of questions that are difficult to answer without a trial, and trials are expensive and annoying.  Second, design intent plays some role in determining “ordinary use,” so if you document clearly what the product is intended to do and, importantly, what it is not intended to do, you may be able to help yourself.  Third, that thing I just suggested – documenting the intended and unintended uses – may come back to hurt you, as it may indicate that a particular buyer’s use of the product was foreseeable, which in turn may be factored into the “ordinary use” analysis.  So focus on the first point: disclaim that warranty.[10]