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The worrying changing face of French product liability law

Historically product liability arose from case law based on the general law of obligations, in particular, civil tort liability. It implied a fault of the manufacturer or distributor in the design or manufacture of the product, a loss, most of the time bodily injury, and a causal link between the fault and the alleged loss. The purpose of this liability was to compensate the user for the loss sustained due to the latter's exposure by the manufacturer or distributor to an established danger.

The evolution of French case law progressively led to a purely objective liability through (i) the disappearance of the concept of fault, (ii) the dilution of the causal link and (iii) an overly favourable regime for plaintiffs concerning the demonstration of their alleged damage.

Firstly, with respect to the concept of fault, the disputes relating to the use of asbestos, which involve both liability law and employment law, are particularly topical. Companies are currently being condemned to compensate all sorts of losses relating to asbestos, including for claimants who are perfectly healthy, the anxiety of one day eventually developing an illness, despite the majority of these companies lawfully using asbestos in their manufacturing sites in full compliance with the rules that were applicable at the time. Although these companies have not committed any fault (within the meaning of the traditional concept of an illicit behaviour in breach of a pre-established obligation), they are nearly all systematically sentenced.

Secondly, with respect to the causal link, the existence of such a link between the Hepatitis B vaccine and certain neurological disorders, such as multiple sclerosis, is not scientifically established. Yet this did not prevent liability findings. Similarly and more recently, the scientific uncertainty surrounding the consequences of the exposure to electromagnetic waves did not prevent some Courts from ordering the dismantling of relay masts. Manufacturers of pesticides are also beginning to be found liable, even if there is no scientific certainty and the use of such products is lawful.

Lastly, regarding the loss, once again in the asbestos field, the French Supreme Court ruled that the plaintiffs do not need to demonstrate their anxiety through medical evidence and decided that there is a presumption of loss in certain circumstances.

The evolution and globalisation of our consumer society in the light of several recent health scandals has resulted in new potential risks for the users of products being disclosed nearly every day. For instance, the potential risks relating to nanomaterials or diesel particles have been the subject of controversy for several years now. Similarly, recent publications reveal that phthalates, for instance, might be at the origin of a new health scandal, following, in no specific order and in an equally alarming manner, Bisphenol A in child care products, aluminium in deodorants or lead in lipstick.

Yet, these repeated concerns have given rise to a marked increase in the number of regulations governing products. The European Union is primarily at the origin of this increase driven by an urge to improve the consumers' trust in the European market and standardise the existing legal rules. The European Union has also implemented sectorial directives and regulations to govern specific categories of products, such as toys, machinery, personal protective equipment, low voltage products, cosmetics or foodstuff. With respect to these latter two categories of products, the EU authorities have recently decided to impose, on an experimental basis, the obligation to trace the nanomaterials the products might contain in order to prevent all potential risks.

This preventive function can notably be observed in the type of disputes that manufacturers are now facing: "administrative and criminal" disputes, in addition to more traditional civil litigation. These disputes arise from reports communicated to the Public Prosecutors by administrations, such as the French Directorate General for Competition Policy, Consumer Affairs and Fraud Control and its decentralised services. These authorities hunt down regulatory breaches, regardless of whether or not such breaches give rise to a risk for the users of the product. More and more actions are thus initiated, exposing companies to very strict penalties (obligation to recall the products, sales ban, complete modification of the manufacturing process) and damage to their reputation while sometimes there is absolutely no risk. The French lawmakers do not hesitate to prohibit substances in an often opportunistic and demagogic manner on account of the so-called precautionary principle, simply to meet the public's demand, even though there is not always an alternative process.

At the same time as this increase in the number of regulatory obligations imposed on manufacturers, there is a strong move towards the criminalisation of product liability law. Indeed, many criminal proceedings have been initiated in cases that are more and more the subject of media attention, for instance in the life sciences, automotive and aviation sectors. Negligence in the carrying out of safety duties is assimilated to intent and a criminal investigation is almost-systematically instituted as soon as there is bodily injury involving a product.

Companies can thus legitimately fear such an evolution of product liability law, which over the years has changed from a traditional compensatory function to a greatly punitive logic and a preventive system.