Modern Theories of Product Warnings and European Product Liability Law

Abstract

Scholars inside and outside Europe have recently argued that product liability law should recognise the sheer complexity of designing an adequate warning. In the US, for instance, it has been suggested that a plaintiff bringing a claim based on a defective warning should be required to prove which reasonable alternative warning would have prevented her from suffering harm. While much can be said in favour of a more refined approach to product warnings, these proposals are incompatible with many key characteristics of positive European product liability law as construed by the Court of Justice of the European Union. These scholars' recommendations invite us to reconsider some of the features of European product liability law and decide upon a direction for the future.

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“…As is well known, under the PLD, a product is considered defective “when it does not provide the safety which a person is entitled to expect”. This notion of defect is argued to rely on an objective consumer safety expectations test (Verheyen 2019 , pp. 45–46).…”

“…Other kinds of product defect are design and manufacturing defects. While the former relies on a risk-utility assessment of the product (Verheyen 2019 , p. 45), the latter may materialise when the product is not produced according to its design (id. 51).…”