Aug. 24, 2022
Information about hazardous products shouldn’t be a secret
The reality is that most people never hear about deceitful marketing practices or other bad acts of companies that put out dangerous products for public consumption. Current law conveniently protects companies from such disclosure, and California companies have been able for decades to keep terribly damaging product information secret.
When someone is hurt or killed by a dangerous product, consumers should know about it. They should be told about any deceitful marketing practices that may have helped the manufacturer sell its products to unsuspecting victims. Otherwise, how are they to know that the drug or weed killer or child's toy they're considering purchasing is actually not safe, despite product advertising and packaging to the contrary?
The reality is that most people never hear about deceitful marketing practices or other bad acts of companies that put out dangerous products for public consumption. Current law conveniently protects companies from such disclosure, and California companies have been able for decades to keep terribly damaging product information secret. Such secrecy may have been great for the companies and their shareholders, but it has been devastating for unwitting consumers.
That may finally be changing. A new bill, the Public Right to Know Act or SB 1149, would create a presumption against secrecy in civil litigation involving a defective product or environmental hazard that "has caused or is likely to cause significant or substantial bodily injury or illness or death." The bill would make any secrecy provisions in settlements or other agreements void as a matter of law, against public policy and unenforceable. It would establish a presumption that the disclosure of discoverable factual information relating to corporate actions involving hazardous products "shall not be restricted by stipulation or by order of a court or arbitral tribunal," except under certain conditions.
Carve-outs would apply to "specified categories of information such as medical information, personal identifying information, the amount of the settlement, current proprietary customer lists, trade secrets, or citizenship or immigration status." A court would be able to issue a protective order only by finding that the presumption in favor of disclosure was "clearly outweighed by a specific and substantial overriding confidentiality interest."
This change is long overdue. Secrecy about dangerous and defective products has prevented consumers from understanding the true risks of products they purchase and use, even though damning information has come out through lawsuits. For more than a decade, state and federal judges protected information about Purdue Pharma and its marketing practices for OxyContin while more than 500,000 Americans died from opioid overdoses. Monsanto, which marketed its weed killer Roundup as safe, was helped by a federal judge's order barring disclosure of information about how it marketed the product. More than 8,000 plaintiffs sued the company for harms caused by Roundup; an untold number of people - many of them farm workers - died from exposure to the product.
Companies have worked hard to keep information about dangerous products secret out of fear that their sales will drop and their reputations will be harmed. Courts have helped them in this effort, enabling them to continue selling dangerous products and putting consumers in harm's way. When secrecy is a condition of settlement in a product liability case, dangerous products stay on the market, and people needlessly die.
Information about hazardous products that comes to light during litigation discovery should be made available to the public, but a recent Reuters study said that judges sealed evidence concerning public health and safety in about half of the 115 largest product-defect cases over the past two decades. As a result, those products continued to be sold to unsuspecting consumers, untold numbers of whom were hurt or killed. It is finally time to get rid of secrecy in lawsuits when such secrecy prevents the public from knowing about dangerous and defective products.