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Pita, Weber & Del Prado Trial Attorneys
  • Personal Injury
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  • Wrongful Death
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  • Medical Malpractice

Product Liability Issues in Packaging


When people hear the phrase “product liability,” thoughts typically turn to products containing either design defects (defects as a result of the conception or development of a product) or manufacturing defects (defects as a result of the construction or assembly of a product). However, most states, Florida included, also include marketing defects as part of the process included within product liability. Whether design, manufacturing, or marketing defects, if a product causes injury, the assistance of an experienced product liability attorney is crucial to obtaining just compensation. Recently, the first lawsuit was filed, on behalf of a Florida woman who became pregnant in spite of taking birth control medication, against a birth control company which packaged the pills out of order. Since standard birth control administration is to ingest, daily, a pill with a specific ratio of estrogen and progestogen, any error in this practice, such as by missing a day or taking a pill out of order, may result in a pregnancy, which is exactly what happened to the plaintiff. A discussion of marketing defects as a basis for product liability, in general, as well as potential injuries that can result from marketing defects, will follow below.

Marketing Defects – An Overview

As mentioned above, marketing defects are part of product liability in Florida, and can be the focus of a strict liability or negligence lawsuit if a plaintiff alleges the defect caused damage. Generally, marketing defects focus on actions by the manufacturer or within the supply chain of a product. Such claims can include allegations of a failure to include adequate warnings, or to provide instructions, about a product that was otherwise properly designed and manufactured. To be successful, a plaintiff must show that there was a foreseeable risk of injury from the product, and that this risk could have been reduced or eliminated by providing adequate instructions or warnings. Further, the plaintiff must also prove a causation between the failure to include the adequate instructions or warning and the injury suffered. In other words, as a result of the failure, the product became unreasonably dangerous.

Defects in the packaging of a product are a unique aspect of marketing defects, in the sense that a package is both a product, in and of itself, but also a means for communication. It is this latter aspect – a package as a means for communication – that is at issue here. This method of communication is shown in not only the labelling that is present on the packaging, but also in the materials, shape, size, and color of the packaging. Further, the packaging as communication also includes the content of the communication, such as warnings and instructions. If any of these aspects cause injury, an experienced attorney can help formulate a strategy to obtain compensation for the injury.

Examples of Marketing Liability

In addition to the regrettable case described at the beginning of this post, the following are other examples of instances in which marketing liability can be proven:

  • Failure to instruct a user to ensure that weight is evenly distributed within a storage container, so that it does not become top heavy or otherwise tip;
  • Deceptively similar packaging on pharmaceuticals which results in the administration of the wrong one;
  • A lack of warning of the toxicity of a product; and
  • Not warning a user of the requirement that a product can generate toxic fumes, and, needs to be used in an open environment to avoid injury.

Seek Legal Advice

If you, or a loved one, sustained an injury attributable to improper or dangerous packaging or marketing of a product, contact the attorneys at Pita Weber & Del Prado as soon as possible. We have experience in dealing with various product liability issues, including packaging and marketing, and will work with you to get you the compensation you deserve. Contact our Miami office today for an initial consultation.


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