Failure-to-Warn Lawsuit Prompted by Flammable Hair Product
Case Summary: Plaintiff suffered severe, disfiguring burns when a lit cigarette ignited the moisturizer in her hair, which she had applied approximately thirty minutes earlier. A failure-to-warn suit ensued, alleging that the warnings communicated on the packaging were inadequate because they did not address the reasonably foreseeable possibility that a user would smoke. Plaintiff retained a product packaging expert with a background in human factors and its warnings.
Expert Analysis: To be adequate, a warning needs to be of a certain form and content. Form relates to how the warning looks, e.g., being conspicuous. Content relates to what the warning says, e.g., being unambiguous.
The U.S. Code of Federal Regulations (CFR) mandates the form and content of warnings, but only for certain specified product categories. Other categories needing warnings can look to standards issued by the American National Standards Institute (ANSI), the International Organization for Standardization (ISO), and the Human Factors and Ergonomics Society.
Determining how comprehensive a product warning should be is always a matter of judgment. For any given product, it is impossible to address all possible scenarios. An adequate warning, therefore, addresses not only the product manufacturer’s desired use, but also reasonably foreseeable misuses.
The at-issue warning read, “Avoid eye contact and keep hair away from open flames.” This warning left it to the consumer to interpret “open flames” and “keep away.” Plaintiff testified that she did not associate open flames with cigarette smoking. She associated open flames with a gas stove, charcoal grill, and fireplace. Plaintiff further testified that the accident did not happen at the time the cigarette was lit but later, when the cigarette was about halfway consumed. Most telling, Plaintiff testified that she would have obeyed any unequivocal warning about the risk of her hair catching on fire.
Variables that influence the likelihood of a lit cigarette igniting hair moisturizer include:
- The frequency of applications
- How much is applied on each application
- Hair length
- The proximity between the hair and the lit cigarette, as the latter is brought to-and-away-from the mouth.
There were several competitors’ hair moisturizers that carried warnings prohibiting lit tobacco. Defendant marketed other hair products that contained flammable ingredients, and one of those products carried a warning prohibiting lit tobacco. The Material Safety Data Sheets (MSDS) for Defendant’s family of products showed that they had the same flammable components in common. There was no justifiable reason, therefore, for the products not to carry similar, if not identical, warnings, including against the use of lit tobacco.
Conclusion: The at-issue product had a marketing defect, for failure to warn that a lit cigarette can ignite one’s hair, a scenario that was reasonably foreseeable. Said marketing defect made Defendant’s hair moisturizer a defective product. The marketing defect was the direct and proximate cause of Plaintiff’s injury, and without that defect, the injury would not have happened.
Result: The case settled.
