Following the rise of mass product manufacturing and marketing in the 1940s and 1950s, strict product liability emerged in the 1960s and 1970s as a potent force shaping the way product manufacturers do business in America. Although the relevant common law of each state has been modified from time to time since its inception, the basic parameters of the theory have been settled for some time. Now, however, market conditions are changing dramatically, and the law is likely to change with it.
In just the last few years, the Internet has generated new levels of company-consumer interactivity. Consumers and companies are working together in new ways to design products. Consumers and companies are communicating -- both in terms of advertising and complaints about products -- more directly and frequently than ever. These developments create corresponding new legal issues. Indeed, the changing marketplace may foreshadow unanticipated changes in the traditional law of strict product liability.
INTERNET-GENERATED CHANGES IN PRODUCT DESIGN AND MARKETING
American product design and marketing processes, long the strictly guarded, private province of manufacturers, are going public. In a range of industries, different forms of participatory design are taking root. Participatory design, also sometimes called "co-creation" or "co-design," is "an approach to design that attempts to involve the end users actively in the design process to help ensure that the product designed meets their needs and is usable."
Participatory Design. Fueled by the Internet and intrigued by the innovative shared-design processes of technology companies, more American manufacturing companies are inviting, allowing or accepting consumer input into product function, design, appearance, packaging and marketing. See, e.g., Ben McConnell and Jackie Huba, "Citizen Marketers: When People Are the Message," 150-153 (2007). Some companies limit consumer participation in design to a choice of product colors or other appearance options (e.g., Nike). However, others have organized Web-based communities of consumer-designers who actively participate in the design of new products (see, e.g., Lego’s Mindstorms consumer/designer community).
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By: Sarah L. Olson