Are You Going to Eat That?

We have written before about issues related to hand sanitizers and household cleaners, which have expectedly taken on increased importance as people look for ways to protect themselves and others from the spread of COVID-19. Recently, the FDA addressed another potential concern that it believed consumers and manufacturers should be aware of―the risk of misuse of hand sanitizers manufactured or packaged in a way that may mimic foods or beverages.

As reported by the FDA, some manufacturers have packaged hand sanitizers in containers resembling beer cans, water bottles, and juice pouches, among other things. The FDA also observed that some manufacturers have added flavors to hand sanitizer products, such as chocolate or raspberry. Some of these efforts may have been well-intentioned: For example, some manufacturers may have elected to repurpose their products to serve the expanded need for hand sanitizer containers, while others may have thought that adding flavors, colors, or even cartoons would make children more willing to use hand sanitizers, and promote individual and public health.

But no matter how well-intentioned, if a consumer were to ingest a hand sanitizer product and suffer an injury or illness as a result, it is likely that the manufacturer and/or retailer of that product could face a personal injury lawsuit. And while such a suit would likely be met with the defense that the consumer failed to exercise due care to read and understand that the hand sanitizer was not, in fact, a beverage or a food item, that defense―even if successful―would not prevent the cost and expense of defending the suit, in addition to the negative public relations impact that would accompany it.

This serves as yet another reminder that, even when seeking to pursue a laudable public health goal―such as increasing access and use of hand sanitizer products―it is important for manufacturers and retailers to fully consider the potential legal risks and make an informed decision about how to proceed.

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