Marketing Defects

       A “marketing defect” can be the basis of a products liability lawsuit when a manufacturer or seller does not warn a consumer about a dangerous characteristic of a particular product.  Although not as common as other types of product liability suits, a serious example of this type of litigation is the marketing of JUUL E-Cigarettes to children.  A product can be defective, even if a particular product does not meet the legal definition of being defective because of a design defect or a manufacturing defect.  An injured person can establish the existence of a marketing defect by proving:

       A risk of harm may arise from either the producer’s intended use or a reasonably anticipated use.  What must be shown to prove a marketing defect is:

  • knowledge of or foreseeability of a risk of by the product seller at the time the product is marketed,
  • lack of a warning or instruction that makes the product unreasonably dangerous to the product’s consumer and
  • link between the failure to warn and the product user’s injury.

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