NCPA - National Center for Policy Analysis

Criminalizing Errors Through Product Liability

November 8, 2000

The Firestone-Ford tire debacle propelled Congress to pass legislation which has critics shaking their heads. President Clinton is expected to sign into law proposals which would effectively federalize and criminalize product liability laws. The manufacturer of a given product could be prosecuted for "knowingly" introducing a "defective" product or component into the marketplace.

Unforeseen problems in manufacturing and design could become acts of criminal "negligence."

Critics point out the impossibility of achieving absolute, certain, guaranteed perfection in products as complex and complicated as modern automobiles and airplanes, for example. Is it reasonable to jail and fine businesspeople who for one reason or another fail to deliver that?

The proposed law is shot through with its own imperfections, experts point out.

  • Subjective terms such as "reasonable risk," "knowingly" and "defective" would be open to interpretation -- and manipulation -- by bureaucrats at the National Highway Traffic Safety Administration.
  • Experts warn that it is doubtful any product could be brought to market utterly divorced from considerations of cost or appeal to consumers.
  • In the competitive marketplace, company executives and engineers have every incentive to find and fix whatever flaw may exist in their products.
  • But the proposed law shifts the incentive to the goal of willful ignorance of the flaw, to avoid the risk of 15 years behind bars.

Until now, openness and cooperation have characterized the relationship between industry and government when flaws have been uncovered or suspected. Both sides have worked together to correct the problem.

A casualty of the proposed law could well be that cooperative spirit, critics warn.

Source: Eric Peters, "Criminalizing Error: Firestone/Ford Flap Drives Politicians to Make Bad Law," Investor's Business Daily, November 8, 2000.


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