by Sterling Anthony, CPP, expert witness, packaging, warnings, patent infringement, cargo loading & securement, insurance claims
Packaging is a medium, using graphics and structure to communicate. The communications can be explicit, for example, that which is conveyed by copy and images. The communications also can be implicit, forming the bases for any variety of perceptions. With any form of communication, the message intended is not always the message received; likewise, packaging sometimes miscommunicates, with varying consequences.
Children, because of their limited powers of discernment, are particularly vulnerable to miscommunications. Child-resistant (C-R) packaging is meant to address that vulnerability, but is best effective in the most foreseeable situations, for example, when the product embodies an inherent hazard. There are less obvious situations, in which the hazard derives from a miscommunication by the packaging. Examples include instances in which children mistakenly consumed products because the packaging was similar to that of another product. A canister of a leading brand of cleanser resembles that of a leading brand of grated Parmesan cheese. A box of pet food can be mistaken for cereal. See-through packaging can be a problem; for example, a liquid pine cleaner resembles apple juice, as does red shampoo resemble soda. By appearances, the contents of laundry detergent pods can be mistaken as edible.
A different type of miscommunication is when the elements of the packaging contradict one another. The labeling on the back of an aerosol can of furniture polish warns against its use on wooden stairs; however, on the front of the can are drawings of use applications, including one of a set of stairs with banisters. The accompanying copy mentions——among other applications——that the product can be used on bannisters; unfortunately, a consumer, having not read the copy, misinterpreted the drawing, sprayed her stairs, and suffered a fall. The misinterpretation aside, the packaging miscommunicated, in that, even if a consumer used the product on bannisters, the spray could land on the stairs.
When miscommunication by packaging results in litigation, either party should retain an expert, ideally one whose background includes experience in package research and design. Such as expert is well-positioned to opine whether the miscommunication was reasonably foreseeable and what methodologies would have foretold of likely miscommunication.
Sterling Anthony, CPP, is a consultant to the industrial, institutional, and government sectors and an expert who provides services to the legal community. He is a former manager at Fortune 100 companies and a former instructor at two major universities. His contact information is: 100 Renaissance Center-Box 43176, Detroit, MI 48243; (office) 313-531-1875; (cell) 313-623-0522; (fax) 313-531-1972; thepackagingexpertwitness@gmail; www.thepackagingexpertwitness.com