A few weeks ago, we commented upon
the recent Florida case of Farias v. Mr. Heater, Inc., — F. Supp .2d —,
-23789, 2010 WL
4814660 (S.D. Fla. Nov. 19, 2010)
to start a discussion on bilingual warnings and what, if any, duty a manufacturer has to provide them. In so doing, we questioned what, if any, responsibility a manufacturer should have to provide bilingual warnings here in the United States, since the country has no official language and prides itself on its rich cultural and linguistic diversity.
Friend of the blog and John Marshall Law School professor Alberto Bernabe recently responded
to our post on his own blog, and he made a number of interesting points. Just as the Farias
court did, Professor Bernabe focused on the issue of marketing. The Farias
court held that the heater manufacturers had no duty to provide a warning in Spanish in part because the heaters had not been marketed directly to a Spanish-speaking population, distinguishing the case factually from an earlier decision in a Florida federal court, Stanley Indus., Inc. v. W.M. Barr & Co., Inc.
, 784 F. Supp. 1570 (S.D. Fla. 1992), in which the product had been directly marketed to a Spanish-speaking population.
Professor Bernabe asked the following question in response to the Farias decision and our post:
If we are ready to say that we should recognize a duty if the product is marketed to a specific audience, is it that much of a leap to say we should recognize a duty if the product is marketed in a particular market. By this I mean, there are specific areas in this country that are known to be centers of foreign populations. And if there is a great example of this it is Miami! Let’s face it, Miami is a bilingual city. A large portion of the city is known as “Little Havana.” Everyone knows this. So is it really that burdensome to suggest that labeling should be different for that market?
His question, therefore, is whether the concept of duty in this situation should be based on marketing, or just market. As Professor Bernabe himself appears to acknowledge, this would absolutely extend the concept of duty beyond reasonable limits. Miami is the easy case – there are parts of the city in which road signs are written only in Spanish.
But what about places like New York City, where huge populations of non-English speakers are concentrated in particular areas, but also run right into each other? For years the areas of the city known as “Little Italy” and “Chinatown” have been separated by little more than about a half a city block. There is also a huge Puerto Rican population in the city, along with countless other pockets of peoples of different nationalities and language in that city.
If we were to focus on the “market” itself, rather than the “marketing,” then manufacturers that sell any product in New York City would have to hire the United Nations to translate warnings into virtually every language spoken on the earth. Any manufacturer who bought advertising time on a national basis on the networks would have similar problems.
We’re not suggesting there is an easy solution. While we think there needs to be a reasonable limit to the duty imposed on manufacturers, it would also be unreasonable for us to say that manufacturers should be able to stick their collective heads in the sand and ignore the fact that there are people in this country who can’t read or understand English. For now, the marketing
issue seems to be the best we have.
(Back in November, we interviewed Professor Bernabe as a part of our Abnormal Interviews series. You can read that interview here.).