Product Safety

Q. What does Judaism say about product safety?

A. Product safety has become a major legal and regulatory concern in recent decades. From a previous legal regime whereby safe use of products was primarily the responsibility of the consumer, in recent years increasing liability has been placed on producers. Many jurisdictions now place strict liability on producers, so that they can be held responsible even if there is no negligence on the part of the producer and sometimes even if the consumer was not sufficiently careful. The theory is that the producer is in the best position to know and mitigate the hazards of his product and therefore should bear the costs resulting from these hazards.

Jewish law also puts responsibility on sellers to refrain from selling hazardous products, although the requirement is not through imposing monetary liability. The source is a verse in the Torah (Deuteronomy 22:8, Living Torah translation):

When you build a new house, you must place a guard-rail around your roof. Do not allow a dangerous situation to remain in your house, since someone can fall from [an unenclosed roof].

Although this verse refers specifically to a roof, the Talmud extends it to additional hazards:

Rabbi Natan stated, Whence to we learn that a person may not raise a vicious dog in his house, or place a flimsy ladder in his house? As it is written, "Don't allow a dangerous situation to remain in your house". (1)

Maimonides explains that all these are examples of a general principle:

A roof or anything else that presents a hazard with a potential that someone may endanger himself and die – for example, a well or a pit in the courtyard . . . it is necessary to make a barrier around it, or a cover so that no one will fall and die. And likewise any hazard that presents a danger to life, it is a positive commandment to remove it, and to be careful of it, and to be very cautious regarding it. As it is written (Deuteronomy 4:9), "Watch yourself and be very careful of your soul". And anyone who didn't remove [the danger] and allowed the hazards to remain, failed to fulfill a positive commandment and transgressed "don't allow a dangerous situation to remain in your house". (2)

Selling someone a hazardous product is placing a hazard in their way. If you are not allowed to leave a flimsy ladder in your own house, where you know about it, certainly you would not be allowed to sell one to someone to put in their house without full knowledge of the hazards.

A question often raised regarding product safety is why it would not be enough to include a warning or disclaimer. The same question could be asked regarding the commandment to place a railing. Couldn't the owner just warn visitors or family members that there is no railing? Or we could put a sign on the ladder saying: "Caution: rotted rungs!"

This question is discussed by a number of recent rabbinical authorities, including Rabbi Betzalel Stern. Rabbi Stern relates to a complex passage of the rabbis of the Talmud given various kinds of structures that are obligated in or exempt from a railing. He explains that while engaging in everyday household or work activities it is impossible to adequately pay attention to safety as well. (3) The prominent recent authority Rabbi Yeshayahu Karelitz, the "Chazon Ish", adopts a similar approach. He points out that workers can go out on a roof (one not usable as a porch) to fix it, and workers are allowed to go onto the roof to put on the railing in the first place. But in this case their attention is fixed on dealing with the danger. (4) However, when a person is involved in everyday activities he will almost invariably be unable to maintain concentration on safety.

I think this is also the rationale for product safety regulations. A consumer product is meant to be used by normal people under normal circumstances. It is impossible to expect that everyone can be focused on complex safety requirements.

A householder is not allowed to leave a dangerous situation to persist in his own house. People at home are occupied in their normal activities and can't be expected to be constantly on guard for flimsy ladders and precipices at the edges of porches. The same principle applies to many consumer goods; if they will be used by average people during average activities, they should be safe for use without requiring constant attention to special safety procedures.

SOURCES: (1) Babylonian Talmud Ketubot 41b. (2) Maimonides' Code, laws of Murder and Preserving Life, 11:4. (3) Responsa Betzel HaChochma IV 114 (4) Chazon Ish Yoreh Deah (Chullin) 214.