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PRODUCT SAFETY AND PRODUCT LIABILITY

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 International Journal of Trend in Research and Development, Volume 4(3), ISSN: 2394-9333
www.ijtrd.com
Product Safety and Product Liability
1
Salim Ibrahim Ali and 2Dr. Mohammed Mustafa Qader,
1
Master of Law - Universiti Utara Malaysia, Sintok, Kedah, Malaysia
2
Kirkuk University, College of Law and Political Sciences, Iraq

Abstract: This paper contained a thorough discussion on the
general aspects of product safety, product liability, as well as
the necessary measures to be taken in protecting the interest of
the consumers. It also discussed the nature and extent of
producers’ liability. In addition, the need to regulate the safety
of products is no longer a source of controversy. It should be
the primary goal of any policy to protect the consumer.
Keywords - Product Safety; Protect Consumers; Government's
Liability; Damage; Manufacturers.
I. INTRODUCTION
The most cited reasons for regulating the safety of products
and market failures that occur in conjunction with the private
law fails in product safety regulation is the government's
attempt to ensure that only safe products are produced and sold
to consumers. Although that is also the performance of such a
role of the private law by imposing liability for products, an
area that has evolved over time to protect consumers, however,
the main objective of the responsibility of the product is the
compensation, as the law seeks to provide compensation for
damage to the victim of defective products.
In addition, the need to regulate the safety of products is no
longer a source of controversy. It should be the primary goal of
any policy to protect the consumer. This is due to the fact that
there are a lot of consumer goods that are heterogeneous and
more technologically advanced, which are constantly being
introduced to consumers. Today, the innovation of new
products coupled with the huge demand for them provides a
great opportunity for those who aim to make a profit from the
massive production of these products. This is in line with the
principle of freedom of choice to ensure that consumers have a
wide range of products to choose from. The most important
consideration, however, is that the products available to
consume are safe and not a danger to the health of consumers.
Accidents can happen as a result of unsafe products.
The safety of the products of modern law is about to reduce
accidents in the home that can be prevented. Product safety
systems are designed to prevent dangerous products from
reaching the market or the consumer, as well as informing the
user how to use the products safely, as intended. It's not
enough just for producers to design, create and sell products
that are intended to be safe. Method of use of the product may
also affect the safety of those who use it or affected by it. As
part of product development, it is also very important to inform
consumers about the instructions for use and warnings
associated with the products, as well as to pay attention to the
packaging of the product. What is also important is the control
system after the products sold in the market. With the rise of
domestic accidents happen in these days related to consumer
products, and then raises the question of whether such
incidents can be preserved through a regulatory mechanism,
i.e. by ensuring that only safe products reach the market. Here,
safety regulations, product plays a key role. Product safety
refers to the regulatory oversight by government authorities for
the marketing of products by the criminal law and / or
administrative. It works as a preventive measure, especially
when consumers are not able to anticipate the risks, and when
buying a lot of new products that are supported only by the
claims of manufacturers about their safety and effectiveness of
entry.
II. PRODUCT SAFETY IN PROTECTING
CONSUMERS
By comparing product safety and product liability, it is
possible to see that the responsibility for the products are the
subject of research the most popular search terms of law,
especially in the United States and Europen. It is easy and
interesting to keep track of how legal systems have, within a
relatively short period of time, a response to a new topic of
product liability. 1 However, it could be argued that product
liability suffers some limitations because it does not provide
adequate protection to ensure that they are put only safe
products on the market. The potential risks of the product, in
other words, not guarded only by relying on product liability. 2
There are established four limitations of private law. The first
is that private law depends for its enforcement on the injured
party taking action.3 However, the possibility of bringing civil
lawsuits will not prevent the manufacture and supply of
dangerous products. Therefore, this is hardly a deterrent to
those manufacturers usually amounts claimed are relatively
small. Secondly, private law focuses primarily upon correcting
harm that has already taken place by way of providing
compensation. It is important that where a product is of
potential hazard to consumers, preventive measures are taken
to prevent such products from reaching the public. Private law
only addresses the problem after the injury. Does not prevent
dangerous products directly to market access and to prevent
damage from occurring. Although it may seem that there is
some deterrent effects in the future of the oppressors, but if a
person is "hoping to avoid any penalties, and maybe worried a
little bit of the prospect of having to make the payment or
effective pay".4 It may seem that such a deterrent effect may
not deter people as is supposed to be. We must remember that
consumer protection should not ideally be left in the hands of
individual consumers to take action after the damage has
already been done. In other words, prevention is always better
than compensation.
Third, sometimes there can be external costs that may be
offered by third parties in transactions of private law problems.
This is known as externalities. Often external factors present in
the transactions of private law. Other people different from the
buyer may consume or use of the product, but some of the
implications of unsafe or dangerous products may be borne by
1
. Biniecka, Małgorzata, and Sergio Caroli. "Quality and Safety of Odorant
Substances Present in Cosmetics: Selected
Problems." TowaroznawczeProblemyJakości 4 (2011): 24-40, p. 32.
2
. Lacroix, Jean. "The Consumer'FreedomOf Choice." Annals of Public and
Cooperative Economics 45.3‐ 4 (1974): 403-416, P. 411.
3
. Cartwright, Peter. Consumer protection and the criminal law: law, theory,
and policy in the UK. Cambridge University Press, 2001, p. 23.
4
. Osuji, Onyeka K. "Business-to-Consumer Harassment, Unfair Commercial
Practices Directive and the UK—A Distorted Picture of Uniform
Harmonization?." Journal of consumer policy 34.4 (2011): p. 437.

IJTRD | May-Jun 2017

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 International Journal of Trend in Research and Development, Volume 4(3), ISSN: 2394-9333
www.ijtrd.com
other third parties. 5 Although the tort law can provide some
extent of protection, it is still not enough in the sense that it
allows dangerous products to be sold on the condition that the
payment of compensation in case they cause injuries.
Fourth, despite the fact that some corrections can be made
through contract law,as far as the law of contract is concerned,
such law is hindered by the rule of privity. This rule means that
no one outside the contractual agreement is allowed to file a
claim against a party to the contract, even if she / he was
injured because of that breach. Although this doctrine of
perfection has been strongly criticized for being unfair, and
some developments have taken place to make it easier for third
parties to sue in limited circumstances, this doctrine is still
available and applicable to a large extent. 6
Some argue for the use of tort law to provide a measure of
security, as is evident in the United States in terms of ease of
access to justice in cases of personal injury combines with high
damage awards including punitive damage to make
manufacturers produce safer products. If the company can get
insurance, then remove the risk of people going from
compensation, but it also means reduced deterrent effect. Also,
although there have been discussions about the appropriateness
of the use of criminal law in consumer protection and there is
an alternative to the administrative rules, criminal sanctions
have a role in the control of hazardous products. Furthermore,
it could be argued that the criminal laws which prohibit the
sale of dangerous products are examples of regulatory offences
and that such crimes are not criminal in any real sense. 7
Based on the above reasons, and restrictions, private law did
not produce an ideal solution. Although it could be argued that
civil cases involving consumer products are more likely to be
successful than criminal acts, also impose legislation, strict
liability, and in the criminal law, there is a level higher than
the burden of proof and the supplier may be able to provide the
defence of "due diligence" that is particularly relevant when
the issue is the issue of quality control rather than product
design, and should not be expected to rely on the law to protect
consumers.8
Therefore, you must be a component of additional regulatory
controls which is based on the organization of the common law
in place. In addition, although it is a product or a manufacturer
who may suffer financially, ultimately it is the injured
consumer who suffers the physical harm. There is a need for a
special system for the provision of certain controls to protect
the consumer, which prevents harmful goods from reaching the
market, as well as providing post-marketing functions such as
surveillance and monitoring. This protection is provided under
the organization of product safety.9
III. CHARACTERISTICS CONSIDERED FOR
PRODUCT SAFETY
Earlier it was mentioned that government intervention through
the organization of the products is necessary and justified as
consumers should not be confident with the decisions of
private to ensure market integrity. However, product regulation
5
. ibid.
6 11
. Howells, Geraint G. "The Relationship Between Product Liability and
Product Safety-Understanding a Necessary Element in European Product
Liability Through a Comparison with the US Position." Washburn LJ 39
(1999): p. 305.
7 14
. Ibid, p. 306.
8
. Viscusi, W. Kip. "Consumer behavior and the safety effects of product
safety regulation." The Journal of Law and Economics 28.3 (1985): 527-553,
p. 533.
9
. Ibid, p. 538.
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does not mean the production of risk-free products; it is about
ensuring products only represent acceptable risks. Also, you
cannot expect to organize the risks that were unknown at the
time of marketing organization products. 10 And organize
products still lead to products that are marketed which will
pose a risk to consumers. But consider some of the properties
that can help in making an acceptable risk. New products are
produced every day, and it is very difficult for consumers to
measure theirs safety, quality and efficiency. They are the
information regulation, the assessment of risk, the
responsibility placed on the manufacturer and producer of a
product and lastly the precautionary principle.11
A. Information Regulation
In product safety regulations, organizing the information is one
of the most basic elements. Could be organizing the
information as one of the most common in the region, the
organizational techniques to protect the consumer. It is
considered "less intrusive" in the figure compared with many
other forms of regulation.12 As explained above, the regulatory
intervention by organizing the information not be necessary if
consumers complete information on the characteristics of the
products offered in the market, and if the external were not
present in their purchase decision. However, as is the case with
many consumer products, and the circumstances of the lack of
information and external factors do not exist. Can insist that
the disclosure of information in some cases be a solution to the
problems of safety products. For example, if someone is
allergic to nuts, then you can avoid damage if it is labeled
products containing nuts clearly. Similarly, the warnings of the
product significant risks if it considers it to be acceptable for
the product feature.13 This is based on the fact that a warning
can help consumers take steps to avoid danger, without any
information provided to them, it is difficult for the consumer to
know and understand the content of theproductss, and how it
can be used so as not to cause them harm. The consumers are
usually assumed to know the characteristics of the goods that
they buy. But what should be noted is that it is not the
equivalent of knowing for sure how the particular product will
perform, and how safe it is. Where there is a lack of
information, either because it is not available or is available
but expensive, and decisions often become more complicated.
Also, the consumer may get an answer from the Code
ingredients on the packaging card, but it is still possible that
the consumer may suffer from problems in absorbing the
information disclosed.14
Consumers normally have less information than traders.
Therefore often they have difficulty to make decisions that
reflect their preferences information. This is the so-called
information asymmetry, as described earlier.It has been
pointed out that the lack of consistency in the information is
likely to hinder the efficiency and perhaps even prevent the
existence of viable markets for life in extreme cases. 15 While
the information cited contrast to some extent an obstacle for
"perfect market", and insights provided by behavioral
10
. Cartwright, P, “Product Safety and Consumer Protection,” Modern Law
Review (1995), p. 222.
. Ibid, p. 225.
12
. Hayward, G, “Helping Judges Judge Safety,” Solicitors Journal, EWSupp,
December 11, 1998, pp 22-26, p. 24.
13
. Ibid, p. 25.
. Perez, Oren. "Regulation as the art of intuitive judgment: a critique of the
economic approach to environmental regulation." International Journal of Law
in Context 4.04 (2008): 291-313, p. 295.
15
. Howells, Geraint. "The potential and limits of consumer empowerment by
information." Journal of Law and Society 32.3 (2005): 349-370, p. 360.
387
 International Journal of Trend in Research and Development, Volume 4(3), ISSN: 2394-9333
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economics to suggest that consumers may not always respond
to the information provided a reasonable amount of
conventional economic models and sometimes thought that
in. 16 Where there is not enough incentive for traders to
volunteer the information, the law needs to require that
information provided. Once the information is provided,
consumers can protect their own interests by identifying goods
and services closest to their preferences. By so doing,
consumers can be able to make choices based on ensuring
reliable information that can help reduce potential damage.In
general, under the safety system, manufacturers have a
responsibility to ensure the safety of products they develop and
sell to consumers and to ensure that relevant information
reaches the consumer along with the products. Producers must
provide consumers with relevant information, for example,
warning labels and instructions that will help consumers to
make their own risk assessment and selection of products
accordingly. Also, we must remember that for the consumer to
make the best decision, the Information provided must also be
made in such a way that it can recognize and take notice of it.
Otherwise, if the information is not provided properly, it has a
tendency to ignore.17
Although it could be argued that manufacturers and producers
have no incentive to produce harmful products because of
regulatory responsibility for products and negative publicity, if
the market is unregulated it does not produce the optimum
amount of information, consumers may sustain a loss of well-
being. So, what the seller had to provide this amount of
information may be the elimination of the loss. 18 This
condition is information that, to some extent, and restrict the
freedom of merchants as much as they are asked to disclose
information that may be preferred not to be revealed. However,
it can also be questioned whether the manufacturer or supplier
of potentially hazardous products will be "brave" enough to
tell consumers about the potential risks of the products
offered? That the private market economy provides very little
information about the risks. Other literature claims that the
company has no incentive to advertise the potential danger of
their products, especially when competitors do not. It is clear
that most manufacturers cannot be bold enough to tell
consumers that their products could harm them. 19
B. Warning and Instructions
Many products are unsafe unless operated safely. Although the
product is not inherently harmful or defective, but is treated as
defective if used may cause damage due to trends improper or
inadequate warnings. It is not possible to improve the
performance of the product or provide advice in the field of
safety cases for consumers to be undesirable times, the answer
may lie in requiring proper warning or instructions for use.
Consumers can sometimes be persuaded to follow the
instructions in case they warned of the consequences of not
doing so.20 So appropriate rules on the instructions for use are,
legitimate part of any regulatory system. There is thus a need
for a warning and instructions. While the "instructions for use"
is given direction by the manufacturer on the proper use of the
product, and the warning cautionary statement or advice by the
manufacturer of the product to people who otherwise would
not be aware of the potential danger or imminent in the product
16
. Ibid, p.368.
17
. Twigg-Flesner, Christian. Consumer product guarantees. Gower
Publishing, Ltd., 2003, p. 33.
18
. ibid, p.35.
19
. Darby, Michael R., and Edi Karni. "Free competition and the optimal
amount of fraud." The Journal of law and economics 16.1 (1973): 67-88, p. 72.
20
Ibid, p. 73.
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or who have failed to follow the instructions or any other
additional safety statement. 21 Warnings have played an
important role in product safety law. It also mentions that the
warnings are considered efficient, as they are relatively cheap
and simple way to bring the attention of the consumer risk. In
other words, the warnings for the benefit of consumers,simple
warnings, unlike bans, actually retain consumer choice, but do
not have the information costs associated with more
sophisticated disclosure devices. This approach would have a
greater impact on consumer behavior information before
buying, which goes often on the heads of many consumers
who are more interested in the benefits of the risks posed by
the products. Improve the flow of information can also
generate welfare gains indirect consumers through the market
to provide more competition. However, in some cases, the
condition information is not enough, as has been challenged in
the efficiency of warning regarding the safety of products;
changes to the design of the product is likely to be more
effective than the instructions and warnings.22
C. Risk Assessment
In fact, risk measurement is a science in itself. The danger is a
concept based on the quantification and, therefore, it is
necessary to make a judgment on whether the risk is present in
any product as well as the level of risk in the product is
unacceptable.There are different risks for different products.
The practical control system must include certain mechanisms,
for example, to collect information, and the development of
standards, and behavior modification, do not forget that there
must be a clear relationship between these. And often lack the
cohesive integration between the achievement of design and
operation of the regulatory systems. 23
Risk identification is not easy, especially when each product
carries the risk of different or distinct. It can be based on the
acceptance of risk on the fact that it doubted whether the
acknowledged risk is likely to cause more harm to consumers.
This implies that the risk in the marketing and use of each
product. That consumers may not achieve the preferred
balance of their risks, because their decisions are often based
on misconceptions about the risk. The distinction should be
made between the risk of risk; but it has been used in a
common language with risk and danger. 24 However, if we are
to ensure safety on the basis of assessments of the safety of the
product alone, it would be enough? What about some of the
consumers who are careless or reckless, or easily distracted by
something, who always find it easy to swing, or who do not
pay attention to the warnings or instructions, for example? It
must be remembered that consumers can also be involved in
the joint negligence if accidents happens. 25 It should be
flexible safety assessment procedures, due to the fact that the
danger and risk to be assessed vary greatly in nature and
severity. Lastly, the risks and risk measurement are not
supposed to be done by measuring the products and their
participation in accidents alone, but also must include the
conclusions of the causes and responsibilities.26
21
Ibid, p. 77.
22
Joerges, Christian. "Product Safety, Product Safety Policy and Product Safety
Law." Hanse L. Rev. 6 (2010): p. 115.
23
. Cartwright, Peter. "Enforcement, risk and discretion: the case of dangerous
consumer products." Legal studies 26.4 (2006): 524-543, p. 527.
24
. ibid, p. 528.
25
. Asch, Peter. Consumer safety regulation: putting a price on life and limb.
Oxford University Press on Demand, 1988, p. 43.
26
. Ibid, p. 16.
388
 International Journal of Trend in Research and Development, Volume 4(3), ISSN: 2394-9333
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D. The Importance Of Chanelling Responsibility For Safety
Of Products To The Manufacturer
It has been accepted practice to refer to the producer or
manufacturer as the party principally responsible for the safety
of products. Although there can be "no absolute safety", and
put the responsibility of the safety of the product on the
manufacturer of the product is very important. Apart from the
producer or manufacturer, there are also other parties who bear
the responsibility for the safety, such as retail stores. 27 In the
case where the retailers present themselves as producers
through the sale of goods under its own brand, or anyone
attached to the brand name goods, then there is a tendency to
treat them as well on behalf of producers. In such a
responsibility that it is necessary not only because of the
impression it creates on consumers,it shows that they are in
fact responsible for the production of goods, but also because it
is often will already had these parties a great deal of influence
on the production of the products.28
However, it must be remembered that safety is not the only
concern when the products are made, it is also important that
other intermediary parties in the chain must address its safety
before it reaches the final consumer. The suppliers, retailers
and distributors involved should also comply with the safety
requirements in order to comply with the law. The question
then extends to, if a product is an imported product, then who
should be held responsible? For imported products, the
importer of the products and the company will be held
responsible for the safety of imported products because they
are responsible for the introduction of such products into the
country. They should first check if the products are safe to use,
or if there are any issues related to safety .29
CONCLUSION
In conclusion, this paper contained a thorough discussion on
the general aspects of product safety, product liability, as well
as the necessary measures to be taken in protecting the interest
of the consumers. It also discussed the nature and extent of
producers’ liability. This discussion is very imperative as is the
case in the market where consumer goods are increasing in
complexity and sophistication, and consumers are not able to
anticipate the risks and protect themselves. This means that
there is an urgent need for government intervention in the
market for consumers who need to be protected. There is also a
debate about the theory on what makes a good security system.
Since many of the consumable products now flood the
market, and the safety of these products is very important. For
example, the requirement to use only safe ingredients listed as
approved by the relevant scientific committee. It seems that a
good safety system requires the development of a unified
regulatory framework, where safety is directly the
responsibility of the manufacturer, and where not only through
the control of pre-market but also from post-marketing
surveillance activities of the authorities are responsible. In
addition, the development of a uniform labeling and provide
full transparency of information to consumers is essential for
most of the products, in light of the provision of better safety
standards for consumers.
Bibliography
[1] Ahluwalia, Rohini, Robert E. Burnkrant, and H. Rao Unnava.
"Consumer response to negative publicity: The moderating role of
commitment." Journal of marketing research 37.2 (2000): 203-214.
[2] Asch, Peter. Consumer safety regulation: putting a price on life and
limb. Oxford University Press on Demand, 1988.
[3] Biniecka, Małgorzata, and Sergio Caroli. "Quality and Safety of Odorant
Substances Present in Cosmetics: Selected
Problems." TowaroznawczeProblemyJakości 4 (2011): 24-40, p. 32.
[4] Cartwright, P, “Product Safety and Consumer Protection,” Modern Law
Review (1995).
[5] Cartwright, Peter. "Enforcement, risk and discretion: the case of
dangerous consumer products." Legal studies 26.4 (2006): 524-543.
[6] Cartwright, Peter. Consumer protection and the criminal law: law,
theory, and policy in the UK. Cambridge University Press, 2001.
[7] Darby, Michael R., and Edi Karni. "Free competition and the optimal
amount of fraud." The Journal of law and economics 16.1 (1973): 67-88.
[8] Hayward, G, “Helping Judges Judge Safety,” Solicitors Journal, EW
Supp, December 11, 1998, pp 22-26, p. 24.
[9] Howells, Geraint G. "The Relationship Between Product Liability and
Product Safety-Understanding a Necessary Element in European
Product Liability Through a Comparison with the US
Position." Washburn LJ 39 (1999).
[10] Howells, Geraint. "The potential and limits of consumer empowerment
by information." Journal of Law and Society 32.3 (2005): 349-370.
[11] Joerges, Christian. "Product Safety, Product Safety Policy and Product
Safety Law." Hanse L. Rev. 6 (2010).
[12] Lacroix, Jean. "The Consumer'FreedomOf Choice." Annals of Public
and Cooperative Economics 45.3‐ 4 (1974): 403-416.
[13] Montgomery, James D. "Social networks and labor-market outcomes:
Toward an economic analysis." The American economic review 81.5
(1991): 1408-1418.
[14] Osuji, Onyeka K. "Business-to-Consumer Harassment, Unfair
Commercial Practices Directive and the UK—A Distorted Picture of
Uniform Harmonization?." Journal of consumer policy 34.4 (2011): p.
437.
[15] Perez, Oren. "Regulation as the art of intuitive judgment: a critique of
the economic approach to environmental regulation." International
Journal of Law in Context 4.04 (2008): 291-313.
[16] Twigg-Flesner, Christian. Consumer product guarantees. Gower
Publishing, Ltd., 2003, p. 33.
[17] Viscusi, W. Kip. "Consumer behavior and the safety effects of product
safety regulation." The Journal of Law and Economics 28.3 (1985): 527-
553.

27
. Montgomery, James D. "Social networks and labor-market outcomes:
Toward an economic analysis." The American economic review 81.5 (1991):
1408-1418, p. 1410.
28
. Ibid, p. 1411.
29
. Ahluwalia, Rohini, Robert E. Burnkrant, and H. Rao Unnava. "Consumer
response to negative publicity: The moderating role of commitment." Journal
of marketing research 37.2 (2000): 203-214, p. 207.

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