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Private labels and liability for products: hypermarkets as apparent producers


Next Friday I will be presenting a paper entitled ‘Private labels and liability for products: hypermarkets as apparent producers´at The Paisley Snail International Conference (Paisley, Scotland).  This conference marks the exact 80th  anniversary of Donoghue v Stevenson, one of the most famous  decisions  of all time. Read more here.

Here is the abstract:

Modern hypermarkets adopt market strategies that aim to simplify the traditional distribution system. Among these novelties is the surprising transformation of retailers into producers through the use of own brands (“private labels”). In private label products the retailer assumes full control over production and distribution. The retailer is responsible for the product’s quality, a role that was traditionally reserved to producers. Directive 85/374 adopted an economic concept of “producer” which includes “any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer” (the so-called apparent producers). The brand is a channel of information between supply and demand, exercising a communicative function that can be viewed as a position of liability that its holder assumes for products that he puts into circulation. By labelling products with his own brand, the retailer assumes the same risk as real producers. The trade mark holder shall be liable for the damage caused by defective products jointly and severally with the product’s true manufacturer. The inclusion of the trademark owner in the concept of producer is closely linked to consumer’s expectations. Consumers see the trade mark on the product and are reasonably confident that the holder of such mark had some control over the production and will, accordingly, be liable for any damage caused by the product. In this paper we analyse the connection between product liability and consumer expectations, determining whether the consumer may sue the hypermarket if the product is defective and causes damages.


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