The Duty to Warn Illiterate or Non-English-Reading Product Users, Part I

By Kenneth Ross

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 significant 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.

Part I of this article will describe the relevant law and technical standards in the United States; Part II of the article will provide recommendations to manufacturers about using multi-lingual labels and pictorials.

The Number of Illiterates and Non-English Reading Residents in the U.S.
The Census Bureau, in its 2006 Ameri­can Community Survey, found that approximately 20 percent of the U.S. population, or 56 million people, speak a language other than English. And, of that number, 44 percent, or 24.6 million, speak English less than “very well.”

The Census Bureau also estimated the number of “linguistically isolated” house­holds in the U.S., meaning that all mem­bers of the household 14 years and over have at least some difficulty with English. For Spanish speaking households, 27.6 per­cent are considered isolated. For Asian and Pacific Island languages, 27.4 percent of the households are isolated.

Concerning illiteracy, the U.S. Depart­ment of Education, in 2003, performed A National Assessment of Adult Literacy, updating the last assessment performed in 1992. In particular, the assessment esti­mated illiteracy in “prose literacy” and “document literacy.” The Department of Education estimated that 11 million peo­ple were “non-literate” in English. And, they concluded that among adults who spoke Spanish or Spanish and another non-Eng­lish language before starting school, 61 percent had “Below Basic” skills in prose literacy and 49 percent were “Below Basic” in document literacy.

Given these statistics, it is arguable that manufacturers should be providing safety information in some way other than just in English. While foreseeing the non-Eng­lish reading and illiterate user population is easy, trying to communicate with those so-called “average users” is much more difficult. Problems abound in getting the “right” product to the right user popula­tion, selecting the correct foreign language or pictorial, dealing with total or partial illiterates, and even if these problems are solved, getting the users to read and under­stand the information presented.

But first, let us examine what the courts are saying in this area.

U.S. Case Law
The two main ways to communicate effec­tively to illiterate or non-English read­ing product users is by use of their mother tongue or by use of commonly understood pictorials. However, U.S. common law pro­vides little guidance on when foreign lan­guages or safety pictorials or symbols are appropriate or required. In fact, there have been very few cases discussing the neces­sity to communicate to product users in the United States who do not read English or are illiterate.

Many years ago, a U.S. federal appellate court set forth two essential characteristics of a legally adequate warning: (l) it must be in such a form that it could reasonably be expected to catch the attention of a reason­ably prudent person in the circumstances of its use; and (2) the content of the warning must be of such a nature as to be compre­hensible to the average user and to convey a fair indication of the nature and extent of the danger to the mind of a reasonably pru­dent person. See Spruill v. Boyle-Midway, In­corporated, 308 F.2d 79 (4th Cir. 1962).

Given that definition, can manufactur­ers assume that the “average user” is lit­erate in English? Based on the statistics above, the answer is certainly “no.”

Despite the existence of many non-Eng­lish reading or speaking and illiterate U.S. residents, there have been very few signifi­cant legal opinions that have considered the issue of whether safety communications in anything other than English should be required. Several court rulings on this issue show the difficulty the courts have had in rendering clear decisions and providing guidance on this issue.

In 1992, the U.S. District Court for the Southern District of Florida issued a sig­nificant ruling in Stanley Industries, Inc. v. W.M. Barr & Co., Inc., 784 F. Supp. 1570 (S.D. Fla. 1992). In that case, the plaintiff alleged that a fire, which occurred in the plaintiff’s facility, was caused by the spon­taneous combustion of rags soaked in the defendant’s linseed oil. The linseed oil was being used by two employees who were brothers from Nicaragua and whose pri­mary language was Spanish.

The plaintiff sued the manufacturer of the linseed oil and the retailer, Home Depot, Inc., for negligent failure to warn, strict lia­bility and breach of warranty of fitness for a particular purpose. The defendant manufac­turer filed a motion for summary judgment on the negligent failure to warn count.

The plaintiff’s response to the defend­ant’s motion for summary judgment argued that because the language on the back of the product label was in English only and con­tained no pictorials, it was inadequate. It further alleged that the label did not fairly, appropriately and comprehensively warn Spanish speaking, monolingual product users of the dangers likely to be encoun­tered with the product’s use.

The key fact in this case was that both defendants arranged, jointly and cooper­atively, to advertise, promote and market products in the Miami area. Home Depot regularly and actively advertised in the Miami market on Hispanic television and radio and in Hispanic newspapers. Home Depot also marketed a number of its prod­ucts with bilingual instructions.

After reviewing the few prior cases dis­cussing the subject of multi-lingual warn­ings or universally accepted pictorials or symbols, the court denied the motion for summary judgment and held that it was for the jury to decide whether the defendants could have reasonably foreseen that the lin­seed oil would be used by persons such as the plaintiffs.

The court also held that the jury must decide whether a warning should at least contain universally accepted precaution­ary pictorials. Lastly, the court held that it was for the jury to decide whether a warn­ing, to be adequate, must contain words in a language other than English or must con­tain pictorials.

In addition to denying the defendant’s motion for summary judgment, the court added that it did not intend to advance any position on the merits of the case, nor did its decision foreclose affirmative defenses such as comparative negligence or inter­vening cause. Until recently, as discussed below, the Stanley Industries case had not been followed or rejected by another court in Florida.

In a subsequent trial in November 1993, the jury returned a verdict in favor of Home Depot. Since the only defect claimed by the plaintiff was an inadequate warning, it can be assumed that the jury felt it unnecessary for the defendants to warn the plaintiff’s employees in Spanish or by use of picto­rials, even if the defendant retailer adver­tised in Spanish.

Interestingly, many people have inter­preted the judge’s ruling in Stanleyto mean that pictorials and Spanish were necessary in this situation. That is not the holding of the court and the fact that the jury subse­quently ruled in favor of Home Depot sup­ports the view that such communications were not necessary in this case.

It should also be noted that three days before the jury verdict in 1993, Home Depot sent a letter to many of its suppliers ask­ing that Spanish be included on all warn­ing labels and instructions accompanying products sold to Home Depot. Presum­ably, Home Depot, as a preventive measure, decided that its suppliers should warn and instruct in Spanish, regardless of the out­come of this case.

In the second major opinion on this issue, the California Supreme Court ruled in 1993 that a manufacturer might not be held liable in tort for labeling a non-pre­scription drug solely in English. In Ramirez v. Plough, Inc., 25 Cal. Rptr. 2d 97 (1993), the court ruled on the adequacy of English-only warnings regarding Reye’s syndrome on aspirin purchased by the plaintiff’s mother, who could not read English but was literate in Spanish.

The California Court of Appeals had held that the adequacy of warnings was normally one of fact and an issue for the jury. The pertinent facts this court consid­ered were that the aspirin was advertised to, and used by, non-English-literate Hispan­ics and that the manufacturer presented no evidence as to the cost of Spanish-lan­guage labeling and the reasonableness of the manufacturer’s conduct in not labeling in Spanish. The manufacturer appealed the case to the California Supreme Court.

The California Supreme Court reversed, affirming summary judgment for the man­ufacturer. The court held that the plaintiff’s cause of action for inadequate warnings was preempted by federal and state regulations regarding warning requirements. Thus, the court held that, as a matter of law, a manufacturer could not be held liable for failure to include foreign language warnings when the product’s warnings and labels complied with federal and state regulations.

The court relied on the lack of statutory authority from the California State Legislature requiring anything other than English labels on non-prescription drugs. It inferred that the legislature had “…deliberately chosen not to require that manufacturers also include warnings in foreign languages.” And, they believed that requiring a language other than English “…is a matter of public policy for consideration by the appropriate legislative bodies and not by the Courts.” Since this ruling, the Ramirez case has never been overruled in California or cited negatively by any court.

Another early major case considering this issue was Campos v. Firestone Tire & Rubber Company, 98 N.J. 198, 485 A.2d 305 (1984), superseded by statute as stated in Dewey v. R.J. Reynolds Tobacco Co. v. Silverman, 577 A.2d 1239, 1253 (N.J. 1990). The plaintiff in this case immigrated to the United States in 1971 from Portugal. The accident, which occurred in 1978, involved the explosion of a truck tire rim and tire while being mounted. The manufacturer provided various warnings and instructions in English. However, the plaintiff could not read or write Portuguese or English.

The plaintiff won in the trial court on a failure to warn theory, and the judgment was appealed. In addition to holding that the manufacturer had a responsibility to warn of what was arguably an obvious hazard, the New Jersey Supreme Court also stated that:

In view of the unskilled or semi-skilled nature of the work and the existence of many in the work force who do not read English, warnings in the form of symbols might have been appropriate, since the employee’s ‘ability to take care of himself’ was limited.

Most recently, the federal district court in Orlando considered the efficacy of the Stanley Industries decision from 1992. The plaintiff argued in Medina v. Louisville Ladder and Home Depot, U.S.A., Inc., 496 F. Supp. 2d 1324 (2007), that the ladder was defective because it lacked warnings and instructions in Spanish and that the defendants were negligent in failing to include them in that language. They relied on the Stanley Industries case to support their allegations. The defendants filed a motion for summary judgment.

In June 2007, the court considered the Stanley Industries opinion and declined to follow it. The court stated that Stanley Industries is an “isolated precedent” and that in 15 years from the date of the opinion, no Florida case, state or federal, had concluded that bilingual warnings and instructions may be necessary under Florida law. The court said that there is no indication that Florida law imposes a duty to provide bilingual labels on consumer products and the court was unwilling to extend the law that far. On that basis, the court granted the defendant’s motion for summary judgment. This is a significant ruling since no defendant wants to have a jury decide such an issue and defendants would prefer to have it decided in their favor as a matter of law.

With the exception of the Medinacase, the other cases discussed above and most all of the other rulings on this issue, hold that the jury will generally decide whether a label is adequate based on the circumstances of an individual case. Even so, there is enough language in these cases to suggest that if a manufacturer is selling a product in areas where the average user likely will not speak English or possibly not read at all, it should at least consider including a pictorial that identifies the hazard, and possibly include a word message in a foreign language.

Therefore, as of today, while the common law in general does not require a label to include a foreign language or even pictorials in order for it to meet the duty to warn and instruct, manufacturers should not rest easy and assume that the law will not change. It is very possible that some court or jury might rule in the future that a foreign language or pictorial is necessary in certain situations.

U.S. Labeling Standards
In 1991, the American National Standards Institute published voluntary consensus standards, referred to as ANSI Z535, concerning product safety labeling. In these standards, pictorials are not required, but are acceptable. And while multi-lingual label formats are shown, there is no requirement or discussion of when it is appropriate to add a foreign language to any particular safety sign.

One of the subparts, ANSI Z535.3, provides criteria for symbols or pictorials to be used in safety labels in the United States. The introduction to ANSI Z535.3-2006 states:

The U.S. population is multi-ethnic, highly mobile, and derived from a multiplicity of social and educational backgrounds with different reading skills and word comprehension. These factors complicate the effectiveness of word-only signs. Effective safety symbols have demonstrated their ability to provide critical information for accident prevention and for personal protection. Labels with safety symbols can promote greater and more rapid communication of the safety message, and therefore, greater safety for the general population.

In addition, a related subpart, ANSI Z535.4, provides guidelines for developing safety labels. This subpart does not require the inclusion of pictorials or symbols, but it does encourage their use whenever practical. It also provides, in an unofficial annex, acceptable formats for multi-lingual labels, all of which include pictorials, but the subpart does not provide any guidance on when to include foreign languages. On that issue, the standard says:

The selection of additional languages for product safety signs is an extremely complex issue. Experts suggest that nearly 150 languages are spoken in the United States and over 23 million Americans speak a language other than English in their homes.

A 2007 revision to ANSI Z535.4 allows labels that have only pictorials and no words. This change basically acknowledges the labeling standards promulgated by the International Organization for Standardization (ISO) and could allow a manufacturer to comply both with ISO and ANSI standards with one set of pictorial-only labels. This revision made no changes concerning multi-lingual safety labels.

And, lastly, a new subpart, ANSI Z535.6, was issued in 2006 for instructions. This standard does not contain any discussion of multi-lingual manuals, although it does provide guidance on how to incorporate pictorials used on safety labels into the text of the instructions.

Therefore, the main safety label standard in the U.S. does not require multi-lingual labels and provides no guidance on when or where they may be appropriate.

Next quarter in Insights for Manufacturers, Ken Ross continues his look at product warnings for illiterate or non-English-speaking consumers. Part II of this article will provide 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.

Mr. 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.