- A product recall is an action taken voluntarily by a product manufacturer or ordered by the government to ban the future sale of a defective product or to ask consumers to return a defective product for a refund or a replacement.
- Six U.S. agencies with jurisdiction over product recalls have created a “one stop shop” for information about product recalls at www.recalls.gov.
- A product recall does NOT eliminate a manufacturer’s liability for injuries caused by a defective product.
What is a Product Recall?
A product recall is an action taken voluntarily by a product manufacturer, or ordered by the government, to protect the public from unsafe, hazardous, or defective products. Some product recalls ban the future sale of a product. Other product recalls ask consumers to return a product for a refund or a replacement.
Several U.S. agencies have jurisdiction over product recalls. These agencies have issued regulations governing when a product manufacturer must implement a product recall and when the government must step in to order a product recall in the face of a manufacturer’s inaction.
- The U.S. Consumer Product Safety Commission (CPSC) has jurisdiction over more than 15,000 types of consumer products, including: appliances, clothing, electronics, furniture, toys, and sporting goods.
- The National Highway Traffic Safety Administration (NHTSA) has jurisdiction over recalls of motor vehicles, child safety seats, and tires.
- The U.S. Coast Guard (USCG) has jurisdiction over recalls of recreational boats and personal watercraft.
- The U.S. Food Safety and Inspection Service (FSIS), under the U.S. Department of Agriculture (USDA), has jurisdiction over recalls on meat, poultry, and egg products.
- The U.S. Food and Drug Administration (FDA) has jurisdiction over recalls involving other food products, pet food, and animal feed. In addition, the FDA has jurisdiction over recalls on drugs, medical devices, vaccines, veterinary products, and cosmetics.
- Finally, the Environmental Protection Agency (EPA) has jurisdiction over recalls of pesticides, rodenticides, and fungicides.
How Does a Product Recall Affect my Products Liability Claim?
These six federal agencies have joined together to create a “one stop shop” for information on product recalls in the United States. Information about recalls of the products listed above—and more—is available at the website www.recalls.gov.
A manufacturer that fails to recall a defective product may face significant liability. But a product recall does not eliminate the manufacturer’s liability for damages caused by defective products before the recall. In other words, if you have been injured by a defective product that is later recalled, you still have a products liability claim against the manufacturer.
In federal court, under Federal Rule of Evidence 407, evidence of the recall is generally not admissible at trial to prove that the product at issue is defective. But this rule does not prevent a plaintiff from proving that the product at issue is defective through other means.
Interestingly, in Texas, under Texas Rule of Evidence 407(b), “[a] manufacturer’s written notification to a purchaser or a defect in one of its products is admissible against the manufacturer to prove the defect.” Although Texas appellate courts are not generally thought to be very hospitable to injured plaintiffs, this rule is an exception.
If you have been injured by a defective product after it has been recalled, it is still possible to bring a products liability claim against the manufacturer. But this case is much harder to prove, as the manufacturer may be able to argue that you “assumed the risk” of using a recalled product or that you were “comparatively negligent” in using a recalled product.
Written by:
Linda K. Leibfarth
Watts Guerra LLP
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San Antonio, TX 78257
Pnone (210) 447-0500
© Watts Guerra LLP 2015
