Purpose of this legal memorandum

Purpose of this legal memorandum:

The main aim of the memorandum is to analyze all possible theories of tort and product liability which might be alleged against the manufacturers and sellers of alcoholic energy drinks. The analysis carried out shows that the beverages contain caffeine enhanced alcohol as evidenced from the name. The unique combination of the beverages results from a mixture of a stimulant and depressant. These beverages are usually manufactured and packed into small plastic bottles or cans and thereafter sold to the customers’. Four Loko is a good example.

Background Facts:

A fruit-flavored malt beverage ‘Four Loko’ contains an alcohol content ranging from 5-12% with caffeine content that range from 130-135 milligrams. At the market, a 23.0-ounce can costs nearly $ 4.00 and the drink comes in different flavors with a colourful package. The product is marketed worldwide mainly from the company’s designed website; www.drinkfour.com. The website is design with a colourful banner that bears the brand’s slogan as “Everything gone Four Loko” bearing no mission or formal instructions on how the brand should be utilized. The interactivity presented by the website, attracts many people especially the young generation and college going students. This is evident with the many links the website is associated with, for example; ‘Edit Your Story’ and ‘Share Your News,’ among many others. Due to increased incidences of college students and teenagers becoming severely intoxicated and ending up in emergency rooms, the product has become subject to close scrutiny of college and health officials.

Issue:

From the outlined facts and circumstances, the design of the product and marketing methods of alcoholic energy drinks presents many instances where the manufacturers can be found legally liable under the following doctrines; negligence, strict liability and implied warranty.

Negligence

The main four elements that arise from negligence are; breach of duty, causations, damages and duty of which duty is the most contentious element to establish. Duty arises from ones way of conduct which creates a foreseeable risk of harm to other people. In McPherson v. Buick, the court ruled that the manufacturer of the automobile was “not at liberty to put the finished product on the market without subjecting the component part to ordinary and simple test” and held the defendant liable. Id. 10. In support of the ruling, the court agreed with the English courts holding that “one who invites another to make use of an appliance is bound to the exercise of reasonable care” and that “the manufacturer who sells the automobile to the retail dealer invites the dealer’s customers to use it.” Id. 8-9. What this implied was that by the virtue of manufacturers selling the products to the dealers like grocery shops and supermarkets would attract customers to buy and use them. Therefore, both invitation is addressed to an indeterminate class “but in each case it is equally plain, and in each its consequences must be the same” Id. 9.

It is the duty of the manufacturer to ensure that the products are safe for the human consumption by providing the necessary measures concerning its use. Warnings should also be clearly illustrated so that the consumers can understand the usage limit of the product. For instance, the drink in question is composed of a mixture of stimulant and depressants which act to mask the effect of each other. The customers often feel less intoxicated than reality leading to a foreseeable risk of intoxication that further results in alcohol poisoning. The products safety is therefore questionable because there are many loop holes which include; failure to indicate the dangers of the chemical composition on the warning label, placing similar warning as those ones featured on non-caffeinated alcoholic beverages. In addition the product appearance, test and feel are questionable.

The moment duty is established in any given organization, the remaining elements of negligence follows systematically. Failure of the manufacturers to abide by the duty as outlined above is a clear indication of a breach of duty. What follows is damages to consumers as a result of using products whose chemical composition and warnings to the foreseeable risk of intoxication are not clearly conveyed.

Contrary, the court after considerable investigations, may find that damages incurred from excessive consumption of the product are independent of manufacturer’s actions. Based on this, it is advised that the consumers be aware of the risks when decoding on the level of consumption. Ideally, no manufacturers would wish to create a risk of foreseeable harm any more than the traditional alcohol manufacturers. The consumers have a wide range of alcoholic drinks to choose from and in circumstances where there would be non existence of the famous Four Loko, customers would seek another alternative drinks for intoxication.

The incidence as presented in James v. Meow Media where the producer of the video game was found not liable for Michael Carneal’s act of shooting his fellow students, for the producer could not have foreseen such event and the court did not want to relieve the child’s criminal activity. This therefore means that the court should not relieve consumers from their responsibility of abusing the product, whether the resulting danger is foreseeable or not.

Strict liability

The court outlines four different conditions upon which it is sufficient to establish the manufacturer’s liability as it is put in the Green v. Yuba Products. In this case, the plaintiff, William Greenman brought suit against the defendant as a result of him getting injured when using his Shopsmith combination power tool. To hold the defendant liable, the court stated the following: “To establish the manufacturer’s liability it was sufficient that plaintiff provide that [1] he was hurt [2] while using the product the way it was supposed to be used [3] as a result of a defect in manufacture and design of which the plaintiff was unaware [4] that caused the Shopsmith unsafe for its intended use.” Id. 4.

The same criteria can be applied to alcoholic energy drink where by the manufacturers can be held liable incase the drinkers file suit. The first criterion is clear; that is when the client gets hurt. The second criterion, there is no explicit statement of how the product is intended to be used after it has been produced by the manufacturer. There is no case that these products are introduced in the market for culinary or aesthetic enjoyment. But, the product seems to be intended to enhance partying experience. Most consumers of Four Loko take it to promote partying and a certain ‘living up’ attitude of which the features are evidenced at www.drinkfour.com.

Almost all alcoholic energy drinks are characterized by a ‘non-natural’ recipe. In Rylands v. Fletcher, the English Court ruled that by storing water in a reservoir set above ground unlike all the other neighbors, a “non-natural act,” the defendant was liable for the damage incurred as a result of water that escaped from the reservoir. Four Loko manufacturers create the “non-natural” drink contrary to all other neighbors: both non-alcoholic beverages and non-caffeinated alcoholic beverages. Due to this act, any damages which results, the manufacturer will be held responsible.

As a result of the “non-natural” composition, the third criterion “defect in manufacture and design of which the plaintiff was not aware” is that the beverage if used as intended creates a foreseeable risk that renders the consumer ill. This is an incongruity between the manufacturer’s design and the actual effect which makes the beverages as in criterion four “unsafe for its intended use.” Id. 4. The argument behind is that there is no “defect in design” and that the product did what it was intended to do. But to do so would be to claim that the intended use of the product is to facilitate and quicken intoxication. Despite the fact that the intention is dangerous, safer designs can also be practiced and the same results achieved.

III. Implied Warranty

The product promotion and the foreseen risks to the consumers are totally distinct from each other. An implicit warrant is made which shapes up a particular expectation and assurance that the drink is much less harmful and therefore safer for consumption as it really is. The misleading marketing efforts have been at the peak to encourage and lure customers from buying the product. The colorful packaging, high alcohol content by volume, comparable prices to other non-alcoholic energy drinks with no visible efforts to highlight the particular risks of the products unique recipe are among the misleading concerns. The marketing strategy is not much different from that one applied to other non-alcoholic beverage manufacturers like Red-Bull. Therefore, many consumers are blind fooled not to assess the eligibility of such products hence end up purchasing and using them which in the long run lead to causation for a particular excessive consumption from which adverse injuries arise.

In another court filing that involved Henningsen v. Bloomfield Motors Inc.,the Supreme Court of New Jersey in ruling whether the plaintiff, Mr. Henningsen could recover the damages incurred as a result of an accident from a defective part of the automobile held that “under modern marketing conditions, when a manufacturer fix a new automobile in the stream of trade and promotes the purchase of the respective item by the public, an implied warranty that it is reasonably suitable for use as such accompanies it into the hands of the ultimate purchaser.” Id. 12. In this incidence, the accident was found to breach the implied warranty and therefore, the defendant was ruled to provide recovery.

The scenario can be equated to the manufacturer of the beverages by putting the drink ‘in the stream of trade and promotes its purchase by the public’ is making an implied warranty that the product is safe for the purpose intended which is for consumption. If the same logical analysis is applied as laid out in the Strict Liability section, the ‘defect in design’ makes the pursuing of this purpose unsafe. For this reason, the drink is easy to abuse and encourages a culture of binge drinking from which consumers can easily become ill and thus resulting in a breach of implied warranty.

In conclusion, the observed trend clearly indicate that the alcoholic energy drinks are targeted towards the young generation and the college students. This would mean that the court would work to holding manufacturers legally liable and therefore determine the case in favour of the consumers. This would work to protect the safety of the consumers and the students. As the opinion of the court in James v. Meow states such policy determination is not ‘sophisticated weighing of probabilities’ but a conclusion of whether a plaintiff’s interests are entitled to legal protection against the defendant’s conduct.’