In an ideal world, products liability and other consumer protection lawsuits should make products safer in the long run. However, there are often instances where they actually encourage companies not to innovate and improve safety. For instance, the sports equipment companies who want to design safer products (e.g., helmets) must sink a lot of money into research and design of safer products. Yet, at the end of the day, a new and improved product won’t look much different from the old ones competitors will sell at a cheaper price.
The solution is, of course, advertising the benefits of the new and improved product. Or is it?
Advertising safer products presents a Catch-22 for companies. If they don’t advertise, consumers are less likely to buy the new and improved product. This may reduce the incentive to invest in developing safer products. Yet, if they do advertise their product as “safer,” they’ll almost certainly be sued over that advertising down the line if someone is injured while using their new product.
Such is life for Riddell, Inc., one of the world’s leading manufacturers of football helmets. For years, it has faced a barrage of concussion lawsuits. In the last decade, it has attempted to improve the safety of its helmets by designing new and ostensibly safer models, one of which was called the “Revolution” helmet. Unsurprisingly, it is now being sued over its marketing of that helmet.
Earlier in December, the case of Thiel vs. Riddell, Inc., et. al., 1:13-cv-07585, was filed in federal court in New Jersey. According to the lawsuit:
[Riddell] in a engaged a scheme to mislead New Jersey consumers about the benefits of their premium-priced helmet by falsely advertising to New Jersey consumers that the Revolution helmet is manufactured with “concussion reduction technology” which reduces the incidence of concussion, and does so by up to 31%
The suit contends that marketing of the Revolution helmet was intended to and did create the perception among purchasers that the helmet better reduced the chance of concussion than lower priced helmets. Plaintiff further contends that Riddell relied upon a study by the University of Pittsburgh Medical Center to make the claim of a 31% reduction in concussions but that such study was fatally flawed and Riddell was aware of this fact. We don’t have enough facts to make any sort of assessment as to the merits of the case, but it does reenforce the dangers in marketing innovative safety equipment. Notably, the marketing video for Riddell’s new top of the line helmet, the “360”, focuses more on the features of the helmet without being very specific about its benefits. Of course, we can still see a Plaintiff claiming that it creates the perception that the helmet reduces chances of concussions. Then again, isn’t that the point?