Product Liability

Product Defect or Recall: What?s the Difference?

In any toy store, you’ll see bulletin boards filled with black-and-white flyers. They say “PRODUCT RECALL” in large bold type, warning customers to return a toy, crib or car seat because of a safety problem.

Unsafe products are recalled by government order. Products can also be defective, but not unsafe. Either way, you need to know your rights and what to do with a recalled or defective product.

Recalling Unsafe Products

Most consumer products aren't tested for safety by the government before hitting the market. If they're tested before sale, it’s most likely in the maker's own quality control system. Some products may be tested by groups like Underwriters Laboratories or designed to safety standards developed by it.

Many safety hazards don’t appear until consumers start using a product. Tragically, unsafe products can result in serious injury and death.

The Consumer Product Safety Commission (CPSC) is the government watchdog responsible for recalling unsafe products. CPSC gets about 10,000 product reports from consumers and other sources per year, and watches 15,000 types of consumer products.

In addition, the Consumer Product Safety Act requires manufacturers, importers, distributors and retailers to notify CPSC when they get information indicating their products are unsafe.

CPSC investigates products based on the potential seriousness of the safety hazard and the number of reports received for a product.

Informing Consumers of Product Recalls

CPSC issues a recall order when it decides a product poses a significant risk. You can get updates about the specific types of products you want to know more about.

Recall notices identify the product recalled. The notice will include the model number, the product name, have a photo or drawing of the product, and a description of the specific hazard. The notice must provide contact information and instructions on how and where to return the product.

The manufacturer almost always notifies consumers as well. They may mail out notices to customers who filled out product warranty or registration cards, and inform retail stores carrying the product. Notices may be printed in newspapers or magazines, on consumer websites, and usually appear on the company’s website.

If you have a recalled product, you should immediately stop using it. You can return it to the place of purchase for a refund or contact the manufacturer for instructions.

Some Product Defects Aren’t Dangerous

Products may have defects but not be unsafe. Maybe they don't work as advertised. A kitchen gadget that doesn’t slice diagonally when it’s touted as doing so would be defective, though maybe not unsafe.

Some defects aren’t obvious. A defect can be any problem with the function, appearance, or design. A vacuum cleaner that operates normally, but is unusually loud, might be defective.

Manufacturers and retailers may voluntarily give consumers notice of a defective product. This usually happens only after the manufacturer's been persuaded by customer complaints its product is defective. The notice would include the manufacturer's offer of a remedy. This can include repair, replacement or refund.

Problems with the Apple iPhone 4 show how this might work. iPhone 4 buyers complained to Apple about dropped calls and poor reception. Although Apple balked at admitting the phone's antenna was defective, it did provide a kit to repair the problem free of charge to buyers.

Laws Covering Unsafe and Defective Products

The iPhone 4 experience shows how consumers are on their own when it comes to products that are defective but not unsafe. Although many products are sold with a no-questions-asked satisfaction guarantee, most are sold with a limited warranty. Consumers usually have to seek their own remedies if they feel a product doesn't work as warranted.

Consumers have three basic types of laws giving them rights if products are defective. Product liability covers injuries caused by defective products. Warranty deals with claims of product quality and performance. Consumer protection laws, like Lemon Laws, also cover products that fail to perform as advertised.

Because a defective or unsafe product can affect many consumers, legal claims about them are often resolved in class action lawsuits.

In short, know what you’re buying, read the instructions carefully, return your product registration card and check your purchases, especially for children, before spending your money.

Questions for Your Attorney

  • I bought a product second hand and found out it was recalled. What can I do?
  • Will the CPSC get refunds or other payments for recalled products on behalf of consumers?
  • If a product is sold as "satisfaction guaranteed" can I return it for any reason?
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