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.

Highlights

  • The legal treatment of unhealthy but/andlawful products would not be the same without product liability law

  • 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

  • Note the stark contrast with the comments on design defect: ‘Under prevailing rules concerning allocation of burden of proof, the plaintiff must prove that such a reasonable alternative was, or reasonably could have been, available at the time of sale or distribution.’[40]. In short, there is no requirement for the plaintiff bringing a warning claim to prove which reasonable alternative warning would have prevented the harm, whereas there is in the case of design defects

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Summary

Introduction

The legal treatment of unhealthy but/and (un)lawful products would not be the same without product liability law. At the other side of the Atlantic, Twerski and Henderson – the reporters of the 1998 Restatement Third, Torts: Products Liability – have suggested that a plaintiff making a claim based on a defective warning should be required to prove which ‘reasonable alternative warning’ would have prevented the harm – putting warning claims more on a par with claims based on an allegedly defective physical design.[5]. It is the CJEU which sets out the directions for European product liability law, and in the last few years this direction has become increasingly clear

Background on the notion of ‘defect’ and ‘causation’ in the EPLD
A modern approach to product warnings?
Twerski and Henderson: reasonable alternative warnings
Both contributions complement each other
Warnings as passe-partout
The low burden of proof in European product liability law
74. Restatement Second
Indifference or partiality – prevention or compensation
Conclusion
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