For several years, various manufacturers of laundry detergent and dishwashing detergent have begun making their products in “pod” form. These pods, which have been available only since 2010, are small, all-in-one detergent packets for washing machines and dishwashers. The pods are small, plastic-coated balls. The laundry pods are often made of detergent, bleach and/or fabric softener sealed in clear plastic wrap. The dishwasher version will generally contain dishwasher soap and quick dry agents. They are designed to be inserted whole into washing machines or dishwashers in lieu of separate liquids or powders, as is typically done. They are generally a little smaller than a golf ball, and, apparently for marketing reasons, they are brightly colored.
Risks for Children – Poisonous Laundry Pods
To some, especially small children, laundry detergent pods look like candy or teething toys, and looking at the photographs it is easy to see why:
A question that may come to mind for parents (and lawyers) reading this post is “won’t young children want to try eating them?” The unfortunate answer to that question is “yes.”
While not much literature is available regarding the dishwasher detergent pods, an article was recently published in Pediatrics, the Journal of the American Academy of Pediatrics, compiling data regarding poisoning from laundry detergent pods. (Abstract and link to full article available here: http://pediatrics.aappublications.org/content/early/2014/11/05/peds.2014-0057). The study compiled data from the National Poison Data System, finding that roughly 17,000 children over the past year alone have been poisoned by eating these laundry pods. The majority are small children, with 73% under the age of 3. The injuries caused by ingestion of the detergent pods varied, but a substantial number were significant:
- 4% (approximately 700) of the children were hospitalized
- 102 required tracheal intubation
- 1 confirmed death
The Pediatrics article is not the first press that these risks have received. Indeed, this issue has been repeatedly in the news since at least 2012. That said, this not a commonly reported or known hazard, and, more importantly, the packaging has not yet been changed.
Laundry Pod Lawsuits Possible
Although there are news reports of some recent lawsuits being filed, as of the writing of this post, there appear to be no reported legal decisions regarding liability for injury caused by ingestion of these laundry detergent pods. It would seem that, in the first instance, liability could generally be founded on products liability law or negligence. The manufacturers designed a product that is poisonous, yet very attractive to children. There would appear to be no reason that these products could not be dull gray or black or have an additive that makes them taste bad. To the extent foreseeability is part of the claim – either in a negligence analysis or a products liability claim – even if a reasonable manufacturer in 2010 could not have foreseen that children would eat the pods (a difficult argument in and of itself), there have now been thousands of reported cases, yet the packaging remains the same.
That said, any such claim would face significant challenges. In particular, any “failure to warn” claim would face preemption questions under the Federal Hazardous Substances Act (FHSA). The FHSA preempts some failure to warn claims where the packaging contains FHSA-approved warnings as to toxicity to children. Milanese v. Rust-Oleum Corp., 244 F.3d 104, 109 (2d Cir. 2001) (holding that the FHSA expressly preempts “any state cause of action that seeks to impose a labeling requirement different from the requirements found in the FHSA”). The FHSA generally defines a toxic substance as one that “which has the capacity to produce personal injury or illness to man through ingestion, inhalation, or absorption through any body surface.” 15 U.S.C. § 1261(g). Given that any claims based on injury from laundry detergent pods would necessarily be based on injuries caused by ingestion, the FHSA may define these pods as constituting or containing “hazardous substances.” A walk down a supermarket aisle reveals that the packaging on these products generally includes warnings to keep away from children and that the products can be toxic if ingested. As such, a laundry pod manufacturer would certainly contend that any claims related to the labelling (i.e., failure to warn claims) placed on the pods are preempted by the FHSA.
Even so, these preemption issues have not been litigated, at least not in any reported cases seen to date. Similarly, questions regarding defective design, negligence or other causes of action that may not be preempted also have not been tested in reported opinions. In view of this lack of legal precedent, one must look to the most important question: why do manufactures continue to make these products brightly colored and so visually appealing to young children? The obvious answer is that it is useful for marketing purposes, but if it serves no functional purpose, it would seem that the obvious risk to children should be preeminent. Further, if all manufacturers moved to dull colored packaging, there would be no marketing loss for any of them.
In the absence of regulatory change or successful lawsuits, however, this result is unlikely. Thus, the old adage “you never know unless you try” fits nicely here. Change will not come without effort, and given the optics of the colorful and enticing packaging, apparent purely profit-driven motives, and proven risks to young children, pressing the courts, regulatory agencies or legislators to confront whether this market-based packaging is worth the risk to young children would seem to be well worth the effort.