CAUTION: Are Product Warnings Required in Languages Other than English?
As American society becomes increasingly diverse, product manufacturers and distributors should be prepared to address potential liability theories regarding an alleged duty to warn of product risks and dangers in foreign languages. The case law in this area does not appear to impose a duty to warn in foreign languages; however, given our increasingly varied national demographics, product manufacturers should proceed with caution – proceder con cautela – and remain abreast of the case law and government regulations affecting this area.
At this moment, product manufacturers and distributors can take comfort that the cases addressing the need for foreign-language warnings have been leaning against imposing this requirement. However, with the increasing number of households that primarily speak languages other than English, there will likely be a rise in claims that product warnings and information should have been provided in a foreign language or through language-neutral symbols. Such a theory of liability begs the question of what language or languages would satisfy the duty to warn? One could foresee a snowball effect where warning in one language other than English would produce additional lawsuits based on failure to warn in other languages commonly spoken. In addition, voluntarily including some limited warnings in a foreign language might get a manufacturer in more trouble than not providing any foreign-language warnings at all if the argument is made that by providing limited warnings, the manufacturer assumed the responsibility to fully warn in that language. Alternatively, if the solution is to provide language-neutral symbols in addition to English warnings, which governmental and private bodies will be tasked with developing symbols that are truly recognized on a near-universal basis regardless of language or cultural background? Further, how can symbols be expected to communicate complex use instructions and anything other than the most basic information regarding potential product risks (e.g., flammability, toxicity, risk of electrical shock, etc.)?
As it stands, the only instance of a potential for liability for failure to warn in a language other than English has been found where a product was intentionally marketed to a Spanish-speaking audience with Spanish-language media and advertising. In addition, a couple of cases have held that manufacturers of products that are likely to be used by illiterate individuals have a duty to include symbolic warnings on their products that can easily be understood by virtually anyone. However, as set forth below, the trend in the most recent cases is pointing away from imposing liability.
The most recent case to address whether a manufacturer had a duty to warn in a language other than English involved a Spanish-speaking woman who purchased an outdoor heater. The product was manufactured in Ohio and sold throughout the U.S. The woman purchased the heater in Florida from a national retailer. The product included strong warnings in the English language indicating a fire risk and stating that the heater was for outdoor use only, which warnings the woman admitted to having seen and having recognized as communicating potential dangers. However, she did not speak or read English and did not ask anyone to translate the warnings for her. Instead, she placed the outdoor heater inside her home, something which was clearly warned against in the product materials. When the woman’s couch caught fire, causing damage to her home, she later sued the product manufacturer and distributor, claiming that those entities had failed to provide adequate warnings because the warnings were not written in Spanish. The Court granted the manufacturer and distributor’s motion for summary judgment because Florida law does not impose a duty to warn in Spanish where the product was not advertised or marketed to a Spanish-speaking audience.
The Court in the heater case agreed with a similar Florida case in which an individual was injured when a ladder he incorrectly installed collapsed. In the ladder case, the individual and his handy man did not read English and did not bother to try to read or translate the product information. Accordingly, they improperly installed the ladder, which later collapsed injuring the individual. In the ladder case, which also interpreted Florida law, the Court likewise entered a defense summary judgment and refused to find a duty to warn in Spanish.
The Courts that decided the heater and the ladder cases distinguished the facts of their cases from a third Florida case in which another Court held that a product manufacturer and distributor likely assumed a duty to warn in Spanish. In that case, the manufacturer and distributor of flammable linseed oil extensively and jointly marketed the product in Spanish ads to a Spanish-speaking audience. The product’s English-only warnings clearly indicated a risk of flammability, but did not include language-neutral symbols. A local business later purchased the product, which its Spanish-speaking employees used in various projects. These employees failed to properly dispose of cleaning rags soaked in linseed oil, which spontaneously combusted causing fire damage to the business’s building. The Court there assumed that when a manufacturer and distributor knowingly target foreign language-speaking consumers, they have a duty to warn of product hazards in the foreign language. It then tasked the jury with determining whether, in light of these facts, the English-only warnings were adequate and, if not, whether the lack of Spanish or symbolic warnings caused the plaintiff-business’ damages. The jury returned a verdict in favor of the defendant manufacturer and distributor.
Other cases throughout the country have been more in line with the Florida heater and ladder cases, but based on different reasoning. In two cases, the pertinent Courts encountered highly regulated products – over-the-counter medicines and hazardous substances. There, the Courts held that the decision regarding the appropriateness of product warnings, including the language or languages in which the warnings should have appeared, were issues for the legislative bodies charged with regulating the products. The Courts reasoned that legislatures are in a better position to evaluate demographics and other conditions to determine the adequacy of warnings and the need to warn in foreign languages.
A final group of cases creates cause for concern and is being used by plaintiffs’ counsel to try to impose a duty to warn in foreign languages. In these cases, the plaintiffs were essentially illiterate. The Courts held that the manufacturers and/or distributors had a duty to provide symbolic warnings that could be easily understood to put the user on notice that there was a potential for danger in using the product.
Suffice it to say that product manufacturers and distributors are facing a new challenge in complying with their product liability duties due to shifting demographics. Foreign languages are more commonly being spoken in U.S. homes and businesses. Specifically, due to pockets of foreign-language speakers living and working together, in some areas, foreign languages are commonly spoken at home and at work. However, no U.S. court appears to have made the leap toward generally imposing liability on a product manufacturer or distributor simply for not including warnings in a foreign language unless that manufacturer or distributor purposefully targeted foreign-language speakers through its product marketing and advertising. Therefore, under existing case law, manufacturers and distributors who do not target a foreign-language speaking audience likely have no duty to warn in languages other than English. Nevertheless, as a matter of sound risk avoidance and planning, manufacturers and distributors of consumer products should remain vigilant in monitoring and participating in the development of applicable product regulations and should also explore the issue of whether and when it might be appropriate for the specific product to include some language-neutral symbols.