Product Liability ' Considerations For Manufacturers

• Law Firm: Myerson Solicitors LLP
• Subject Matter: Consumer Protection, Product Liability & Safety, Dodd-Frank, Consumer Protection Act
• Author: Myerson Solicitors LLP
• Published date: 26 June 2023

Businesses that manufacture products for onward supply have legal responsibilities to the end users of those products and to other entities in the supply chain.

Understanding those responsibilities allows a manufacturing business to mitigate its exposure to civil (and potentially criminal) liability, as well as minimising the risks of reputationally-damaging product recalls or high-profile claims.

This article summarises some key aspects of the product liability regime before considering how appropriate provisions in contracts between manufacturers and their supply chain partners can help to manage the risks associated with product liability claims.

Product liability: summary of key aspects of the regime

Statutory liability for defective products: The Consumer Protection Act 1987 (the CPA) is the principal UK legislation governing liability for defective products.

The CPA, and the case law that has developed around it, determine key issues such as:

• What factors are relevant to establishing that a product has a 'defect', i.e. how do you decide whether 'the safety of the product is not such as persons generally are entitled to expect';
• What types of liability can arise in respect of defective products, covering civil liability (and the obligation to pay damages) for death, personal injury or damage to property caused by defective products, as well as criminal liability for failure to comply with consumer safety requirements;
• Which entities in the supply chain can incur liability, covering the original manufacturer of a manufactured product, any entity that 'own-brands' the product (by supplying it under the own-brander's own name or trade mark), and any entity that has imported the product into the UK - any of which can be held liable on a 'primary' basis - but also potentially covering any other entity in the supply chain that receives a claim and is unable to identify to the claimant one of the entities with primary liability within a reasonable period of time; and
• What defences are available in response to a product liability claim, including, for example, the defence that the defect did not exist in the product at the time of supply.

Other bases for a claim in respect of defective products: Alongside the statutory regime governed by the CPA in respect of defective products, manufacturers could also incur liability in respect of products they have manufactured as a result of a common law claim in negligence - which would be based on the argument that...