What's the worst that could happen? Toxic horseradish! - AG Hogan in Krone (C-65/20)

AG Hogan issued an opinion in Krone (C-65/20) case last Thursday, critically examining the concept of a defective product under the Product Liability Directive (Directive 85/374). In this case the national court asked whether a physical copy of a daily newspaper could be considered to be a product under PLD. Its defect would then consist of providing consumers (readers) with an inaccurate health tip, which health tip when followed led to damage to health. 

Specifically, for those of our readers who are interested in the facts, an Austrian daily newspaper Kronen-Zeitung published advice of Kräuterpfarrer Benedikt (Herbalist Priest Benedikt) that to alleviate rheumatic pain you should apply 'fresh coarsely grated horseradish' over a layer of lard for 2-5 hours (please do not try this at home!). The advice turned out to be wrong, as it meant to recommend this application for 2-5 minutes instead of hours. The newspaper did not question its correctness, relying on the expertise of its contributor. Should a consumer have known better than to try a health tip from a newspaper? Well, my guess would be that most of us follow some sort of tip/recipe we find in some media. With a possibly relevant health tip, we would think of trying it out, thinking 'What's the worst that could happen?'. Well, a consumer who tried this homeopathic remedy at home ended up with severe pain due to a toxic contact reaction. The legal issue was whether she could claim damages for pain and suffering from the newspaper and one of the avenues to get them would be under the Austrian implementation of the PLD.

AG Hogan does not consider a physical copy of a daily newspaper with an inaccurate health tip printed in it to fall within the scope of a notion of a 'defective product'. First, he looks at the text of the PLD provisions which all seem to refer to physical things (as products) and a physical defect in them (para 24). He gives an example of a physical copy of a newspaper being able to actually harm consumers - through a protruding staple or toxic printing ink - but concludes that here the defect was caused due to the fault in the intellectual content rather than the physical product (para 26). Therefore, what he considers to have occurred is a defective service rather than a defective product. He then proceeds to claim that he is unconvinced by academic writing suggesting that PLD could apply to defects in intangible content as well as in tangible products (esp. relevant with relation to software) (paras 28-29), and that the fact that a line between products and services is blurred should not matter for the application of the PLD (para 30). He states that the PLD does not provide for strict liability for mere advice (paras 29, 34), which suggests that in case of incorrect information on the packaging of a product or in its manuals, but also incorrect legal or medical advice, consumers would need to prove at least negligence on the side of the producer to obtain damages. This part is quite interesting, considering that provided instructions and warnings are part of the product safety assessment. How to differentiate between the importance of instructions in the product safety test and not assigning product liability on the basis of faulty instructions? AG Hogan does not ask nor answers this question. He also stresses that allowing consumers to claim strict liability for an incorrect health tip published in a newspaper, could introduce a significant hindrance to the freedom of press, especially compared to the obligations of radio or TV media.

This is an interesting case, as it considers the scope of application of the PLD to a broader range of consumer products (and potentially consumer services). As the PLD is currently under review, its applicability in such situations as occurred in this case could be further clarified by the legislator. For now, let us see whether the Court agrees with AG Hogan.