Litigation

DRI Product Liability Conference: The Grass Is Not Always Greener on the Other Side

By Bruce Nye

    Well, between the hotel's wireless connection and Verizon Wireless's problems, the live blogging got off to a slow start today, but we're ready to post on some of the presentations now.

    Leading off today's conference is this presentation by Best, Best & Krieger's Beth Dorris (she's with the firm's Natural Resources Department and in its firm's Natural Resources Department) and Fulton ?Tony? Gale from Starbucks.

    Thanks to Beth, I can make available here an excellent paper by her, Danielle Sakai & Kira Johnson, The Perils of Going Green.

    The takeaway messages from this presentation, insofar as they relate to potential litigation, are, first, that practices that are and are not green aren?t always easy to separate:  at one point, MTBE seemed like a great gasoline additive, but it turned out to be a disaster for the aquifer; years ago, American industry replaced CFCs with HCFCs in refrigeration systems to protect the ozone layer.  Now it turns out that HCFCs are generators of greenhouse gases;  the choice between plastic and paper bags is a Hobson?s choice ? both are environmentally unfriendly.

    Second, 16 CFR 260.6 ? 260.7 are federal regulations that prohibit inaccurate or misleading representations of environmental attributes, although the regulations really have no teeth.

    It seems to me that the most serious California risk here is under this state?s Consumer Legal Remedies Act, which prohibit misrepresentations of a product?s attributes or characteristics;  this would certainly include misrepresentations or misleading statements about a product?s purported ?green? attributes.

    But I have to say, I don?t know where this all really fits in with product liability law:  the typical product liability claim or the typical CLRA claim requires evidence that the plaintiff sustained injury.  I have a hard time seeing how a plaintiff is going to be able to claim injury to him or herself from incorrect representations about the ?greenness? of a product.

Full post as published by CalBizLit on April 15, 2009 (boomark / email).