Conflicting Issues Regarding Warning Labels May Be Hazardous to Your Company's Health
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WARNING: By Jonathan R. Cooper and Arun J. Kottha Conflicting Issues Regarding Warning Labels May Be Hazardous to Your Company’s Health Until recently, a properly crafted nal words and message panels and apply based labels alone. See id. NEMA members them on a case-by-case basis; or maintain developed the now- famous pictorial im- safety warning seldom inter- one set of American National Standards age, “Mr. Ouch,” and they ex- Institute- style warnings for the US mar- tensively tested it with PRODUCTfered LIABILITY with the salability of a ket and another set of pictograms for the children of several eth- European market. None of these solutions nicities aged 2.5–6.5 product. The 2006 European is attractive. All are potentially costly. years. The Mr. Ouch im- But, this is not merely a financial deci- age ranked the highest in Union Machinery Directive (EUMD), sion. The different warning schemes put to- “every major category relative to depicting which was ratified by the European Union’s gether by the American National Standards a threat and inducing a safe response.” Id. member countries last year, will likely Institute on the one hand and the Interna- The beauty of Mr. Ouch was that it greatly interfere with salability. Many U.S. tional Organization for Standardization on worked. The testing demonstrated that manufacturers sell products in both the the other are both designed to promote and people, including children, recognized the United States and the European Union. to enhance the safety of products. These symbol and understood the information Most of those products are festooned with schemes premise is that uniform formats necessary to avoid harm. From a prod- warning labels both to prevent accidents will enhance readability, and hence, compli- uct liability standpoint, manufacturers and to avoid liability. Warning labels are ance. See ISO 3864-2:2004 & ANSI Z535.4- could prove that they had used effective expensive. They must be designed, manu- 2007, §2.2. Instituting new requirements warnings. This not only improved safety, factured, and applied. They are made from may interfere with that overarching goal. it also improved a manufacturer’s ability special plastic that will withstand harsh to defend its products. Mr. Ouch was the environments. Manufacturers must take A Brief History of the Standard first standard pictorial warning adopted care to affix them to products properly and Pictorial Warning Label by an industry. in the right places. The story of standardizing modern pic- Manufacturers have been able to design torial warning labels begins with the Na- ANSI product warnings for products bound for tional Electrical Manufacturers Association Short of a survey, manufacturers typically both the United States and the European (NEMA). Confronted with rising levels of rely on compliance with “consensus” stand- Union that have harmoniously met US “failure to warn” allegations involving elec- ards promulgated by bodies that draw their standards and EU standards. The EUMD trical equipment in the early 1980s, NEMA’s standards committees from more than one threatens that ability. If the EUMD is fol- members set out to develop a warning label. sector of society. In the United States that lowed to the letter, every warning on every Kenneth Ross, The Story of ‘MR OUCH’, Cre- has often meant standards promulgated by product destined for an EU state must con- ation of a Warning Label, Product Liability the relevant committee of the American sist of a pictogram, or if a product contains Int’l, October 1983 at 152–54. Although National Standards Institute (ANSI). ANSI written warnings, warnings translated into their electrical equipment was generally oversees the creation, promulgation, and the official language of the country for locked, tampering by vandals led to serious use of thousands of norms and guidelines which a product is bound. This leaves a injuries when children explored the interior that directly impact businesses in nearly manufacturer with four choices: ignore US of equipment. Id. To combat failure to warn every sector of the U.S. economy. Amer- warning standards and risk liability for claims, manufacturers needed to develop ican National Standards Institute, About insufficient warnings; ignore the EUMD warning labels effective for young children ANSI Overview, http://www.ansi.org/about_ and risk product rejection in the European who either could not read or who could not ansi/overview/overview.aspx?menuid=1 (last vis- Union; draft multiple translations of all sig- grasp the severity of danger from language- ited Feb. 13, 2011). n■ Jonathan R. Cooper is a partner and Arun J. Kottha is an associate in the Cleveland office of Tucker Ellis & West LLP. Mr. Cooper is a trial lawyer whose practice focuses on the defense of product manufacturers in- cluding the national and regional defense of manufacturers of material handling, automation, and electri- cal products. Mr. Kottha focuses his practice on business litigation and mass tort and product liability. Prior to becoming an attorney, he was a licensed ISO auditor, and audited a variety of manufacturing facilities in the Midwest and Eastern Seaboard for compliance with the ISO 9001:2000 quality management standard. 36 n In-House Defense Quarterly n Spring 2011 © 2011 DRI. All rights reserved. In the case of warnings, the relevant Complying with ANSI Z535 also offers (2) a red circle with slash, which signals a standard since 1991 has been ANSI Z535. a manufacturer an advantage in litigation. prohibition; or (3) a blue The ANSI Z535 standards were designed to Complying with ANSI Z535 allows a man- circle, which signals a create something that worked as Mr. Ouch ufacturer to argue that it fulfilled its duty mandatory action. had worked. The mantra of the ANSI warn- to warn by following the relevant consen- ISO 3864-2:2004, §6.2. ing system is threefold: (1) alert a user to sus standard. Inside each type of sign the danger, (2) inform the user of the sever- a pictogram depicts a ity of the danger, and (3) instruct the user ISO hazard, an action, or an instruction. The how to avoid the danger. This is accom- While the ANSI committees were honing most familiar example is the no smoking plished by combining symbols, colors, and the ANSI Z535 standards, the International “prohibition” sign. The ISO 3864-2 system mandatory warning language. Organization for Standardization (ISO), uses three basic colors as signals for the The stated purposes of ANSI Z535 are based in Geneva, Switzerland, was devel- severity of harm a person would encoun- (1) to establish a uniform and consistent oping its own standard, using different ter: red for high, orange for medium, and visual layout for safety signs and labels concepts. While the ANSI standards were yellow for low. Id. at §4.3. So-called “sig- applied to a wide variety of products; (2) to based on safety symbols, signal words, and nal words” can be associated with each minimize the proliferation of designs for message panels, the ISO created a symbol- level of severity: “danger,” “warning,” and product safety signs and labels; and (3) to based system. “caution,” respectively. Id. at §5.3. Each of establish a national uniform system for the ISO is the world’s largest developer and the three levels of severity has an equilat- recognition of potential personal injury publisher of International Standards. A eral triangle surrounding an exclamation hazards for those persons using products. non- governmental organization, ISO is a ANSI Z535.4-2007, §2.2. network of the national standards insti- Table 1—Official European There are four levels of severity denoted tutes of 161 countries, with a Central Sec- Union Languages by capitalized “signal words” that have cor- retariat in Geneva coordinating the system. Austria — German responding colors: “DANGER,” in white International Organization for Standard- Belgium — Dutch, French, German http://www.iso.org/iso/ letters with a red back- ization, Discover ISO, Bulgaria — Bulgarian about/ discover-iso_how-the-iso-system-is-man- ground; “WARNING,” Cyprus — English, Greek aged.htm in black letters with an . A host of information about ISO Czech Republic — Czech www.ISO.org orange background; can be found on its website, , Denmark — Danish “CAUTION,” in black and copies of all referenced ISO stand- Estonia — Estonian letters with a yellow ards can be purchased online as well. Finland — Finnish, Swedish background; or “NOTICE,” in white letters ANSI is the official US representative to France — French with a blue background. Id. at §§5.1, 7.2. A the ISO. American National Standards Germany — German http://www. “safety symbol,” an equilateral triangle Institute, Introduction to ANSI, Greece — Greek ansi.org/about_ansi/ introduction/ introduction. surrounding an exclamation point, accom- Hungary — Hungarian aspx?menuid=1 panies all of these signal words. According to ISO 3864-2, Iceland — Icelandic A product safety sign or label consists which establishes principles for design- Ireland — English, Irish of a signal word panel, noted above, plus a ing product safety labels, the purpose of a Italy — Italian mandatory “message panel,” which com- product safety label is to alert persons to Latvia — Latvian municates the type of hazard, the conse- a specific hazard and to identify how they Liechtenstein — German quence of failing to avoid the hazard, and can avoid the hazard. ISO 3864-2:2004, Lithuania — Lithuanian how to avoid the hazard. Id. at Annex B. Graphical Symbols—Safety Colours and Luxembourg — French, German ANSI-style warning standards have a num- Safety Signs—Part 2: Design Principles for Malta — English, Maltese http://www.iso.org/ ber of specific instructions regarding font, Product Safety Labels, The Netherlands — Dutch iso/iso_catalogue/ catalogue_tc/ catalogue_detail. alignment, and other physical character- Norway — Norwegian htm?csnumber=31020 istics of the language used on a message .