Volume 8, Issue 8 - September 2007

Product Packaging: 
Instructions and/or Instrucciones?
When to Print Installation Instructions in Multiple Languages

by David Toney

The number of Hispanics living in the United States has increased by almost 60 percent in the last ten years. This growth has occurred not only in border states and eastern cities that are typically targets for Hispanic and Latino immigrants, but also in the Midwest and Southeast where Spanish-speaking arrivals have gravitated toward the construction industry. In the Carolinas, for example, some 80 percent of construction workers are Hispanic. Additionally, the 2000 Census reported that 18 percent of the U.S. population—47 million people—speak a language other than English at home. Of those, 11 million speak English “not well” or “not at all.”

Communicating the Package
These statistics are readily available to enterprising lawyers to use as a sword against the construction industry complaining that the industry has not taken the necessary steps to accommodate the influx of Spanish-speaking workers and assure quality construction. Not surprisingly, it is also now common in construction and product defect litigation that product manufacturers not only have to defend their product against defect and failure claims, they must also deal with claims that they somehow failed to adequately communicate their product packaging (e.g., warranties, installation instructions, brochures, website materials) and that failure caused the poor construction and/or product failure that resulted in damages. 

Where the Law Stands
Given the growing Hispanic population and the simple fact that the majority of construction labor speak Spanish, is a door and window manufacturer better served by providing installation instructions, for example, in both English and Spanish? Does a manufacturer that does not provide instructions in Spanish open itself up to liability claims? Unfortunately, there are no cut-and-dry answers to these emerging legal issues. 

Case law is especially murky (actually almost void), on whether non-English instructions are required. There are very few decisions whatsoever that touch on this issue. In Texas, for example, the Texas Supreme Court has never directly addressed whether a product manufacturer must warn of potential dangers in more than one language, much less provide instructions in more than one language in the construction context. Neither has a Texas intermediate court of appeals held that multilingual warnings or instructions are required. To resolve the issue of when, and if, manufacturers must print instructions in languages other than English, courts will have to extend more basic elements of products liability law. 

Factors to Consider

  1. Compliance with Voluntary Industry Standards
    In a Federal District Judge’s opinion in 2001, she wrote, “[a]lthough these standards [such as those promulgated by the International Building Code (IBC), International Residential Code (IRC), American Society for Testing and Materials (ASTM) and American Architectural Manufacturers Association (AAMA)] are voluntary in nature, voluntary industry standards are routinely viewed as evidence of the standard of care.” At this point in time, multilingual instructions are not only not required by these standards, the standards are silent on this issue. However, there are rumblings within the industry that this issue will ultimately have to be addressed one way or the other. And, once a standard is adopted by one of these groups, you can be certain it will be looked to as the standard of care. 
  2. Requests for Multilingual Instructions by the Manufacturer’s Customers or Distributors 
    Do large-scale buyers who sell or use the subject product regularly request instructions in a language other than English? If so, that could be particularly difficult evidence for a manufacturer to deal with in the event it becomes a target in a construction or product-defect case. 
  3. Marketing the Product to Non-English Speaking Customers
    For example, if a manufacturer advertises its product in a foreign language using foreign-language media, it is foreseeable that courts may require the manufacturer to provide instructions in the same language in which it advertises. And, a jury is not likely going to appreciate arguments that adding translated instructions was not feasible or practical given limitations such as the constraints of a one-page installation instruction sticker when the same manufacturer is targeting non-English speaking customers in a concentrated marketing campaign. 
  4. The Extent to Which the Installer Understands the Instruction and/or has an Interpreter Available
    It is becoming more and more difficult to rely upon the age-old argument that the builder/contractor is the construction expert and should have an English-speaking crew leader translate for the non-English speaking crew. Claimant’s counsel will not have to work too hard to argue that the manufacturer knew that the existing English-only instructions are routinely discarded, not read and not understood. And, armed with the overwhelming statistics of how non-English speakers are becoming the majority, and have long been the majority of the construction workforce, many courts and jurors are more skeptical of a “hands-off” approach by a manufacturer.
  5. Similarly Situated Manufacturers’ Standards of Care
    What do other similarly situated manufacturers do? This is likely to be one, if not the sole, criteria used by the opposition to establish the standard of care that should be applied. And, it is becoming more commonplace to see instructions in Spanish. Walk into any Home Depot or Lowe’s and check out the instructions provided for installing tile, appliances, and fixtures—almost all include instructions in Spanish. In the door and window industry, it is also not uncommon to find major manufacturers posting English and Spanish installation instructions on their websites and/or in their product packaging. If a defendant manufacturer’s primary competition has issued Spanish instructions, that evidence would likely be cited as the standard by which the defendant manufacturer should be held. And, if it appears that the majority of the industry is trending towards providing Spanish instructions, a defendant manufacturer’s failure to do so may be fatal to defending against a product claim.

What’s a Manufacturer to Do?
Some may argue that the courts should leave the task of mandating multilingual instructions to legislators, especially considering the current controversy over immigration and the growth in use of languages other than English. Indeed, most state legislatures have grappled with similar issues in the past by enacting laws requiring non-English language in the context of workers compensation, medical consent and certain financial transactions. Whoever makes the ultimate decision, it is unlikely that a court or legislature will make one sweeping rule that applies to all situations. Rather, judges and juries will decide the question on a case-by-case, product-by-product basis, depending on each circumstance and set of facts. And, when it comes to applying basic factors of product liability law, it does appear a credible argument can be made that the standard of care requires door and window manufacturers to provide multilingual instructions. It won’t be long (if the day isn’t here already) until multilingual instructions are the standard that decides some product and construction claims. 

David Toney is a partner in the Houston office of Mills Shirley L.L.P. His practice emphasis is the defense of door and window manufacturers against claims of product defect and failure. He can be reached at dtoney@millsshirley.com. 


DWM

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