The Duty to Warn Illiterate or Non-English-Reading Product Users Part II
By Kenneth Ross
Part I | Part II
This article, Part II of two, continues attorney Ken Ross’ look at product warnings for illiterate or non-English-speaking consumers. The article provides information on current retailer and government actions on the matter as well as information on how U.S. manufacturers should approach the use of multiple languages and/or pictorials on their warning labels and collateral. Part I is available for your review.
Overview
The duty to warn and instruct is a significant duty in the United States. Under U.S. product liability law, liability can result if a manufacturer or product seller fails to adequately communicate appropriate safety information to purchasers and users of its products. Given the number of languages spoken and read in the United States and the significant number of people who are illiterate in English or in all languages, developing a method to effectively communicate safety information to readers of product labels and instruction manuals is an important consideration. Adequate safety communications that are not effectively communicated to foreseeable users may arguably be considered defective.
This article follows Part I, which described the relevant law and technical standards in the United States; Part II provides recommendations to manufacturers about using multi-lingual labels and pictorials.
Retailer and Government Actions
Despite the fact that the common law and voluntary standards do not require foreign language safety labeling, some manufacturers are including bilingual or even trilingual (English, Spanish and French) labels and instructions with their products. This may arise out of safety or liability concerns or merely is a reaction to sales patterns as a result of NAFTA or customer demands.
Trilingual labels and other identification information would allow a manufacturer to sell anywhere in North America without changing its labeling. To the extent that this trend grows, the “state of the art” may be raised despite the lack of clear judicial, legislative or voluntary standard guidance or requirements.
In addition, some government agencies have required manufacturers who fall under their jurisdiction to attach bilingual or pictorial labels to some of their products. For example, in 1994, the U.S. Consumer Product Safety Commission issued a notice of proposed rulemaking that would require, in part, a Spanish safety message or a pictorial be included on packages of charcoal to clarify the dangers of burning charcoal indoors because of carbon monoxide fumes. The basis for requiring the Spanish message came from CPSC data indicating that 80 of 137 victims were members of ethnic minorities, and more than half of these were Hispanic.
However, despite the fact that many of the individuals in the target population were Hispanic, the Commission opted to require only a pictorial along with the English message rather than requiring a warning in Spanish, because the Commission determined that the pictorial message would more effectively communicate the warning to a larger number of the target population with less confusion.
According to the clinical psychologist who administered the Commission’s test comparing the effectiveness of pictorial and written warnings, and who works with low-income Hispanics, “Many in the target population are unable to read either English or Spanish. Therefore, a safety message in Spanish instead of a pictorial would not necessarily reach those Hispanics who do not read English.”
Under these circumstances, a pictorial warning was deemed to be more appropriate because the pictorial would communicate effectively to both literate and non-literate Spanish speakers, non-literate English speakers and non-English speaking persons not in the targeted Hispanic community. Another example of government action is when the California legislature adopted a law requiring five-gallon buckets sold in California to have a bilingual label with a pictorial.
There may be other specific examples of government agencies or even standards groups requiring or recommending foreign language labels, but it is limited and has not resulted in a broad legal or practical requirement. Therefore, manufacturers and product sellers still have great flexibility as to how to meet their duty to warn and instruct.
What to Do for U.S. Sales
As discussed above, with a few narrow exceptions, neither U.S. law nor voluntary consensus technical standards specifically require that foreign languages, symbols or pictorials be used on safety labels that are attached to products, even when those products are clearly being sold in non-English speaking or reading areas in the United States.
Based on that, one could argue that there appears to be no duty to warn in any language other than English. However, having a good defense to a lawsuit may not be the best result when considering product safety and liability prevention. Because the goal is to provide a reasonably safe product, a manufacturer or retailer may decide to exceed any enunciated or anticipated legal or technical requirements in the hope that accidents will be prevented.
The easiest way to present safety information where you are concerned about non-English reading or illiterate product users is to include comprehensible or generally accepted pictorials that at least portray the type of hazard and possibly the consequences of encountering it.
Many such pictorials and symbols exist today, more are being developed, and some have been tested on focus groups consisting of expected user populations. One problem, however, with some pictorials is that they cannot communicate the probability of an incident occurring and/or how to avoid the hazard, messages that are required by the law and standards. Thus, full reliance on a pictorial to transmit the entire message may be risky in the event of an accident.
In addition, one of the leading safety organizations in the world, the British Department of Trade and Industry, said about pictorials:
"Pictograms are not the language-free answer to written safety warnings. There is no clear objective evidence to suggest that they have any significant effect on ultimate compliance with safety warnings on products. Therefore, the desire to decrease text information on packaging due to the internationalization of markets must not take the route of language-free pictorial warnings unless they have been proven to be effective across all the relevant cultures."
Therefore, where you are in doubt as to the efficacy of the pictorial, the best approach is either to add words that assist the pictorial in more fully and clearly communicating the message or test the pictorial on expected user populations to confirm that they are comprehensible and adequate. However, testing has its risks, too, since the results may confirm that a certain pictorial does not communicate the necessary message, and, therefore, should not be used without words.
Considering foreign languages, manufacturers should be careful before putting them in labels on their products and in their instructions. A manufacturer may run some risk of liability if it voluntarily chooses to include foreign language labels on its products and these labels contain inadequate information or are not effectively communicated. This is particularly true in the case of illiterates.
Likewise, a manufacturer who voluntarily chooses to include one foreign language on its label may be criticized for its failure to include other languages. If one foreign language is selected, another significant part of the user population that reads one of the over 150 other languages used in the United States may be neglected. For example, in Minnesota, there are several non-Spanish foreign language newspapers and television stations for the Somali and Hmong population. Do warnings have to be provided in these languages for products sold in Minnesota? I don’t think so.
Another reason to be careful is that there is no assurance that product users in the U.S. will be able to read the foreign language. In fact, they may be illiterate in all languages, as was the case with Mr. Campos (see Part I) and with the target audience for charcoal. Also, including other languages on a safety label tends to clutter the label and could diminish the effectiveness of the entire label, especially the English message. And, lastly, if the label is in a foreign language, the manufacturer should arguably also provide an instruction manual in the same foreign language that it provides on the safety label or the message is incomplete.
If the manufacturer decides to add some Spanish but doesn’t want to make it fully bilingual, one option is to have two signal words (e.g., WARNING in English and Spanish) and a pictorial on the label that at least clearly shows the hazard. The remainder of the label would be in English. Another option is to include one sentence in the foreign language describing the hazard and telling the reader to consult with their supervisor to find out how to avoid it.
In either case, the non-English reading or illiterate users could at least understand the type of hazard and possibly the consequences of not avoiding it. Then, if they are unable to read the English message on the label, they could ask someone who reads English to translate. Also, in this situation, the label could include a reference to the company Web site that could include safety information in a variety of foreign languages. Presumably this safety information will already be translated for manuals shipped with products sold in foreign countries.
When the manufacturer does not know what foreign language may be appropriate for a given situation, it could provide English labels, including pictorials, with the product and offer to provide labels in other languages to product sellers or employers. The practical burden (although probably not the legal burden) could be shifted to the product sellers or employers to decide if another language is required for safe use of the product. These entities could then specifically request foreign language labels and manuals from the manufacturer. While this approach might be appropriate for some industrial equipment and other products used by workers, it isn’t practical for most consumer products.
One alternative that has been suggested is that manufacturers could offer to provide, to retailers in areas with a significant number of non-English speaking customers, a pamphlet or leaflet providing the safety information in the foreign language of the customers. Another alternative suggested is to include a toll-free customer information number on the label of the product informing consumers that they can call the toll-free number to receive safety information in a foreign language.
Since the retailer or employer knows its customers or product users better than the manufacturer, maybe the decision as to the appropriate course of action properly resides with them. While it may not be possible, as a legal matter, to delegate the duty to warn to others, it may be appropriate to allow those more familiar with product users’ language skills to assist in more effectively communicating the safety message to enhance safe product use.
Conclusion
The legal and technical requirements for providing adequate safety communications to those who do not read or speak English are evolving. Manufacturers who are creating safety communications for sales in the United States must keep track of these requirements and trends and try to comply with or exceed them as they exist today or might exist in the foreseeable future.
There are risks no matter what course of action a manufacturer takes if the plaintiff is illiterate or only reads a foreign language and the safety information does not fully transmit the necessary information to that product user. Therefore, a manufacturer should make a risk assessment of which strategy to take and whether it will be defensible if challenged.
A manufacturer’s goal in this area is to communicate safety information adequately to foreseeable users, no matter where they are located. It is not too difficult to anticipate that people may not read or speak the English language. It is much more difficult, if not impossible, to communicate all necessary safety information adequately to all foreseeable product users. Nevertheless, attention to this issue can help minimize future liability in the United States as well as provide a better quality product that is safer and easier to use.
About the Author
Kenneth Ross, of counsel to Bowman and Brooke LLP in Minneapolis, is one the world’s most experienced and well-known lawyers practicing in the areas of product safety, product liability prevention and regulatory compliance.
This article was reprinted from In-House Defense Quarterly (Winter 2008). Copyright 2008 DRI. All rights reserved.