The Product Regulation and Liability Review: Editors' Preface

In today's global economy, product manufacturers and distributors face a dizzying array of overlapping and sometimes contradictory laws and regulations around the world. A basic familiarity with international product liability is essential to doing business in this environment. An understanding of the international framework will provide thoughtful manufacturers and distributors with a strategic advantage in this increasingly competitive area. This treatise sets out a general overview of product liability in key jurisdictions around the world, giving manufacturers a place to start in assessing their potential liability and exposure.

Readers of this publication will see that each country's product liability laws reflect a delicate balance between protecting consumers and encouraging risk-taking and innovation. This balance is constantly shifting through new legislation, regulations, treaties, administrative oversight and court decisions. However, the overall trajectory seems clear: as global wealth, technological innovation and consumer knowledge continue to increase, so will the cost of product liability actions.

This edition reflects a few of these trends from 2021. With online shopping continuing to expand to unprecedented levels (in part due to the impact of the covid-19 pandemic), numerous jurisdictions took steps to regulate online marketplaces. For example, the Consumers Association of Singapore (CASE) launched the Standard Dispute Management Framework for E-marketplaces (the Framework), a voluntary protocol designed to give guidance and assurance to consumers when they shop online. The Framework encourages e-marketplaces to verify their merchants, inform consumers about dispute resolution procedures, and ensure that merchants comply with a refund and exchange policy. The Framework is the first of its kind, and CASE intends to work with major industry actors to encourage its adoption. Although the CASE Framework is voluntary, other countries have taken more direct steps to regulate e-commerce companies. For instance, Indonesia adopted a mandatory set of rules requiring companies to provide clear information about the products sold on their platforms (including digital products such as software) and requires sellers or providers to ensure that their goods are safe and conform to product specifications. Similarly, Portugal enacted a new consumer goods law that increases the level of protection for consumers shopping online. And in the United States, a federal consumer protection agency ordered a prominent e-commerce business to recall hazardous products on its site, which might be a sign of more aggressive regulatory action in the future. The coming year likely will usher in more developments on this front, as the UK is considering proposals to reform its product safety laws in light of the widespread shift to e-commerce.

Although the covid-19 pandemic continued to disrupt jury trials and other court proceedings, numerous jurisdictions saw significant developments in respect of class action and mass tort decisions. These developments illustrate how product manufacturers face a heightened risk from mass action lawsuits throughout the world. In France, the Paris Court of Justice found that a drug manufacturer was responsible for harm caused to pregnant women by its anti-epileptic drug. Critically, the court allowed patients' associations to proceed via a class action, a first in the French healthcare sector. Moreover, the Supreme Court of Japan issued significant causation rulings in a long-running mass action involving more than 1,100 plaintiffs who are suing manufacturers for asbestos exposure released from construction materials. The Japanese court found that a presumption of causation could be applied to the defendant manufacturers (but only to the extent of their contribution to the damage) and that the plaintiffs could seek to apportion liability based on the market shares of specific materials. Courts in the United States also issued significant rulings in several mass actions involving a range of products, including opioid drugs, talcum baby powder and earplugs used by US military service members. Meanwhile, the Swiss government considered a proposal to facilitate class action lawsuits (which might be adopted in the coming year), and its Supreme Court clarified for the first time that a limitations period cannot expire while judicial proceedings remain ongoing. In addition, the Australian government continued to oversee significant consumer product recalls, including the completion of compulsory recalls related to Takata airbags. These court rulings and government initiatives underscore the risk that product manufacturers face in respect of mass action litigation and the need for vigilance in respect of potential product safety issues.

This edition covers 14 countries and territories and includes a high-level overview of each jurisdiction's product liability framework, recent changes and developments, and a look forward to expected trends. Each chapter contains an introduction to the country's product liability framework, followed by four main sections: regulatory oversight (describing the country's regulatory authorities or administrative bodies that oversee some aspect of product liability); causes of action (identifying the specific causes of action under which manufacturers, distributors or sellers of a product may be held liable for injury caused by that product); litigation (providing a broad overview of all aspects of litigation in a given country, including the forum, burden of proof, potential defences to liability, personal jurisdiction, expert witnesses, discovery, apportionment, whether mass tort actions or class actions are available and what damages might be expected); and the year in review (describing recent, current and pending developments affecting various aspects of product liability, such as regulatory or policy changes, significant cases or settlements, and any notable trends).

Whether the reader is a company executive or a private practitioner, we hope that this edition will prove useful in navigating the complex world of product liability and alerting you to important developments that might affect your business.

We wish to thank all the contributors who have been so generous with their time and expertise. They have made this publication possible.

Chilton Davis Varner, Madison Kitchens and Franklin Sacha
King & Spalding
United States
February 2022

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