A Child Swallows The Battery You Sold. Now What?

If you are a parent, you know the drill. Constantly on the lookout for a coin, a bright colored toy and yes, even a small battery headed into your kid’s mouth. Thousands of children are treated in emergency rooms each year after swallowing button or lithium coin batteries. Small, shiny, and seemingly irresistible, button batteries can cause major injuries, or worse, when swallowed or stuck in a child’s nose or ear.

But what about the batteries in the thermometers, watches, remote controls, calculators and thousands of other electronic devices you’ve sold to your clients? Who has responsibility for those once they are in the hands of the end-user client and their customer? Before something happens, heaven forbid, you should know your legal responsibility.

It’s an issue that even Amazon is wrestling with right now in Texas. In a case centered around a remote control battery swallowed by a 19-month-old child, attorneys for Amazon asked the Texas Supreme Court last week to find that the nation’s largest online retailer can’t be held liable for defective products sold on Amazon by third parties. As a distributor, you purchase an electronic device from a supplier, that has purchased the battery inside it from…well, do you know?

Admittedly, this is a bit of a straw man argument because you can’t claim the same arms-length position that Amazon attorneys did last week. The attorneys claimed the Amazon marketplace was simply a platform for third parties where the company “doesn’t own the product, doesn’t select the product, doesn’t source it, doesn’t offer it.” In the case of any product failure, but especially a child injured by a battery, you can bet your client would be expecting you to line up behind them with your supplier to take responsibility, not taking the arms-length strategy.

This issue has been argued in courts across the country, with Amazon winning in all but one case in California. Still, what should be interesting to you is the language the court used in finding against Amazon, saying it had “placed itself” between supplier and consumer. “I think Amazon should be regarded as a supplier for the purposes of product liability law, because they assess the safety of their product, they possess the product when it comes through their premises on the way to the consumer, and, under principles of loss spreading, it is equitable to hold Amazon responsible if the product is defective” consumer lawyer Shanin Specter told Courthouse News. Do some of those product management activities sound like what you do, and does the idea of “loss spreading” make you a little uncomfortable? It should.

Finally, there is a new risk of contaminated hand sanitizers that has surfaced. You may know that when the pandemic started the U.S. Food and Drug Administration increased the amount of benzene that manufacturers could include in liquid hand sanitizers to help overcome sanitizer shortages. While benzene normally shouldn’t even be in hand sanitizers in the first place, a new study by Valisure, an independent pharmacy and lab in Connecticut, has found high levels of the carcinogen in several hand sanitizer products. Previous studies have shown exposure to benzene can cause blood cancers like leukemia. Valisure tested 260 batches from 168 brands, and found many, including Purell, had no detectable trace of benzene. So, most likely the hand sanitizers you’ve sold are safe for your clients. But 21 batches from 15 products exceeded the FDA's limit in testing, and three of them had benzene levels that were six to eight times higher than what the agency deems safe. A Star Wars Mandalorian hand sanitizer made by Best Brands Consumer Products contained double the limit of benzene. So, it would be a good idea to check the list from Valisure here, just to be on top of this issue for your clients. Whew, this sure has been a busy couple of weeks for product safety, hasn’t it?