The Sticky Legalisms of Wacky Warning Labels

Washington Times 2015 op-edThis op-ed article by the author of “Let’s Be Fair” appeared in the Washington Times on July 3, 2015.

Not too long ago, common sense ruled the day, so called because it was shared by nearly everybody. Common values, commonly understood sense of right and wrong, just and unjust, all expressed in a common language of fairness.

But what’s happened to common sense in America? Our laws, as expressed in opinions by our courts, seem disconnected from the common sense that defined our experience.

Take a look at any of the five labels that have just been named finalists in our 18th annual Wacky Warning Labels™ Contest.

There’s a warning on a ceiling-mounted smoke alarm that actually says: “Silence feature is intended to temporarily silence the horn while you identify and correct the problem…It will not extinguish a fire.” Really? Someone needs to be told that pushing a button on a device smaller than most cereal bowls won’t put out a fire?

Or take the warning label someone found on a one-inch-tall water-absorbent grow toy that looks like the Easter Bunny. To the amusement of kids across America, it expands when you place it in water. However, read the fine print on the packaging, and you’ll find a warning that says, “This toy is in no way intended to represent living people. Any resemblance is purely coincidental and not intended to harm anyone.” Evidently, someone wasn’t amused by the appearance of the toy.

Countless products are plastered with common sense warning labels today because lawyers have advised product makers that if they don’t provide the warnings, they could be sued. It’s why a popular four-inch-long brass fishing lure with sharp hooks dangling off the end now warns: “Harmful if swallowed.”

That warning was one of our past winners. The owner of the family-run business that made these fishing lures for nearly one hundred years without needing to put that warning on its products told us that they finally decided to provide that warning on the advice of a lawyer. They were informed they could be sued under California’s Proposition 65 law that requires labels on products that contain certain chemicals even though no one in their right mind would try to swallow a fishing lure. Prop 65 has been a bonanza for plaintiff lawyers, but according to experts in the field, there isn’t a single empirical study demonstrating any public-health benefits of Prop 65.

While the fear of being sued over risks that are common sense is relatively new in the long history of our country, reformers have been calling for more common sense in public policy for centuries. In fact, as we prepare to celebrate Independence Day, it’s worth noting that several months before the Declaration of Independence was written in Philadelphia, Thomas Paine published a pamphlet called Common Sense.

Thomas Paine’s pamphlet helped spark the American Revolution by encouraging colonists to rethink the rules by which they were living, and today, it holds lessons about the importance of rethinking the rules of a civil justice system that forces law-abiding product makers to worry about being sued if someone misuses their product.

In the opening paragraph of Common Sense, Paine wrote that “a long habit of not thinking a thing wrong, gives it a superficial appearance of being right, and raises at first a formidable outcry in defense of custom.” In today’s language, what Paine was saying is that it’s easy lose sight of how wrong something is when it becomes an everyday part of one’s life.

Excessive litigation has become such an everyday part of life in America that many people don’t question it anymore. However, these wacky warning labels – which aren’t found in other countries, by the way – should themselves be a warning that it’s time for us to change old lawsuit habits that haven’t served us well. Judges and lawmakers need to tell plaintiff lawyers that personal responsibility and common sense still have a place in America’s courts. When that happens, we won’t need labels like the one found this year on a bag of frozen catfish pieces that warns: “Contains fish.”

Thanksgiving in 1810 and 1910? Chefs somehow survived without warning labels that cautioned: “Ovenware will get hot when used in oven.”

Happy Thanksgiving!  On this uniquely American holiday, I would like to share a very interesting article about Thanksgiving in 1810 that was written one hundred years ago.

We have much to be thankful for in 2010, and the article underscores that fact by offering a rare glimpse at life in America over the past two centuries.  The author, Clifford Howard, was measuring the progress of our nation at that time and wondering what life would be like in another hundred years.  You can read Howard’s article by going to “Thanksgiving in 1810, 1910 and 2010.”

On this day of thanksgiving, I would be remiss if I didn’t thank writer- and blogger-extraordinaire, Walter Olson, for bringing this wonderful piece to my attention.  Also, I want to take this opportunity to thank the incredible folks at the the Center for America for giving me an opportunity to share my thoughts on life in the most lawsuit-happy society on earth via this blog.

As the creator of the Wacky Warning Label Contest and the author of a book based on that contest, Remove Child Before Folding, I can’t help thinking that despite the remarkable progress that has been made in our nation over the past 200 years, we have regressed in at least one area.  We can no longer rely on our court system to defend common sense.

That is sad.  It’s also why today, family chefs around the country will be cooking their Thanksgiving feasts in bakeware that actually warns: “Ovenware will get hot when used in oven.”  If you have oven pots made by Revere Ware, check it out.  You can also see the warning here.

I will be most thankful when the American civil justice system finally progresses to the point where the hardworking men and women throughout our nation who make all the great products that make life better don’t have to worry about getting sued if they don’t warn us about obvious dangers.

Until then, I’ll keep riding through the countryside like Paul Revere, who, in case you wondered, is indeed the man whose hard work and innovative mind gave rise to the company that would one day make Revere Ware cookware.  Only I’ll be shouting, “The lawyers are coming…the lawyers are coming.”  Paul Revere would understand.