Watch Out for Dangerous Toys

December 23, 2019 | Personal Injury

Shopping online is far preferable to riding in a one-horse open sleigh. It is also just about as risky.

A recent study suggests that Amazon has become an online flea market where there is almost no corporate oversight.

Out of 4,000 dangerous products identified in this study, about half of them were toys and other products marketed to children.

Many of these sales occur in a legal grey area. Third party sales make up about 60 percent of Amazon’s traffic.

The online retailer has cited federal law stating it is not responsible for unsafe products sold by third parties, but its interpretations are tenuous.

In addition to children’s toys, other problem areas include dangerous motorcycle helmets and products with magnets.

In a statement, Amazon said that “Safety is a top priority” and if there is a problem, “we move quickly to protect customers and work directly with sellers, brands, and government agencies.”

Dangerous Ingredients in Childrens’ Products

A popular theory holds that lead poisoning accelerated the fall of the Roman Empire.

The people commonly used lead-lined drinking vessels and other utensils. Over time, the lead affected people both physically and mentally.

Physically, adults struggled with abdominal pain, gout, and other gastrointestinal conditions. It is difficult to function at work, school, home, or anywhere else while dealing with such symptoms on an ongoing basis.

Mentally, the lead caused cognitive issues in children.

They had trouble retaining new knowledge and dealt with developmental delays.

So, instead of increasing knowledge year after year, they struggled to re-learn the same things over and over again.

All these centuries after the fall of the Roman Empire, lead may have the same effect on people in the Empire State. Today, lead has the same effects on New Yorkers.

Although its use has been banned for years, lead particle measurements are still alarmingly high in many New York households. That’s especially true of certain public housing units.

Lead is definitely not the only issue, and dangerous products are not just in online marketplaces.

For example, in March 2019, the Food and Drug Administration advised consumers not to buy certain Claire’s makeup products after they tested positive for asbestos.

Geologically, this mineral is quite similar to talc. In fact, asbestos mines are often next to talc mines.

So, cross-contamination is not uncommon. And, talc is commonly used in makeup as a filler.

A short time after the FDA issued the warning, Claire’s voluntarily recalled asbestos-tainted makeup.

Legal Issues in Dangerous Product Claims

Products like asbestos-tainted makeup and lead-lined toys violate the implied warranty of merchantability.

All products must meet this standard unless the package contains an express waiver. That hardly ever happens. Among other things, when manufacturers sell products, all items must be:

• Fair Average Quality: This industry term usually refers to the safety of the goods, or lack thereof. Parts, design, and other elements must all be safe when considering the intended user, which in this case, could be a small child.
• Fit for Ordinary Purpose: Ordinary use is not the same thing as intended use. For example, plastic Barbie cups are not intended to be drinking utensils. But kids are kids, and they will drink out of their Barbie cups. So, the product should be fit for this use.
• Adequate Labeling and Packaging: U.S. regulations often require certain wording and warnings on certain packages. Even if the product is made overseas, if it’s sold in the United States, it must conform with these laws.

UCC Section 2-314 also requires products to pass without objection to the buyer, run of even kind, quality and quantity within each unit, and conform to any affirmations or promises made on the label.

Damages in a dangerous product claim usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Additional punitive damages are usually available as well. These damages punish wrongdoers and deter future misconduct.

Product makes like toys are strictly liable for the injuries their dangerous products cause.

For a free consultation with an experienced personal injury attorney in New York, contact Napoli Shkolnik PLLC. We do not charge upfront legal fees in these matters.