March 18, 2012

The new ANSI Z535 standards and drafting better user / owner manuals

We have been assisting clients with the drafting or users (or owners) manuals for some time. Companies have become much better about drafting these manuals in recent years, however many company's manuals are still seriously lacking in many areas. The biggest problem we see is that companies do not think out a long term strategy with respect to manuals, how they are to be effectively and ultimately delivered to consumers and developing a framework for revising them over time, to name a few areas that are lacking.

If your company does not have any manuals (or recent, well drafted manuals) this may be the time to get started or at least do a refresh on what you have and to rethink your entire strategy. The reason this may be a good time is that ANSI (American National Standards Institute) has just recently published two key standards dealing with warnings and drafting these manuals. The two standards are:

ANSI Z535.4 "Product Safety Signs and Labels" originally published in 1991. The 2007 version was revised and published in Sept 2011; (again this one only involves so called "on product" warnings)

ANSI Z535.6 "Product Safety Information in Product Manuals, Instructions, and Other Collateral Materials" originally published in 2006. The 2006 version was revised and published in Sept 2011; (this standard deals with complete manuals and is meant to be complimentary to Z535.4)

There are 4 other standards in the ANSI Z 535 series ( Z535.1, Z535.2, Z535.3, and Z535.5) that are not directly relevant for drafters of manuals for recreational products.

Now of course none of the Z535 series standards tell you what to say in your manuals or warnings or even what substantive topics to cover, (that is usually covered by more substantive standards like the EN 14781 entitled "Racing bicycles - Safety requirements and test methods", for example) but the Z535 standards do tell you the manner in which you should convey it, including organization, style, graphics etc. From our own review I will say that most manuals that we have not assisted on are poorly organized. Z535 aims to improve that problem specifically.

Another thing to keep in mind is that a manual is not all about "warnings" but also about instructing users on how to assemble, use or maintain the product. We always say that if users are properly instructed often times the need for the warning is reduced. But you need both components. Another area lacking in manuals is instructive, intelligent warnings. For example we often see the generic warning: "use of this product may result in serious injury or death...." Great info. That's true with almost any product. You need to tell the user the specific areas or details about the product where he or she is most likely to get hurt and how the injury is likely to occur (the mechanism of injury). This is the reason most people's eyes glaze over when reading warnings. You are not telling them something they don't already know. (think about cigarette warnings and recent controversy about making them have more impact)

Now many people will say that just having a "standard" does not guarantee that you will get past a "failure to warn" claim and I would agree with them (see my prior article Using Standards in Defending Product Liability Cases, for more detail on that issue). However whenever you fail to meet or at least demonstrate that your company at least considered a standard in drafting a warning or manual, you can pretty much be assured that overcoming a failure to warn claim will be an uphill battle with a judge or jury. The reason is that standards (especially those from recognized bodies like ANSI, ISO or ASTM) are seen as embodying years of diligent work by the worlds experts on the subject, application of the scientific method, and in most cases some democratic form of creation. That's hard for most companies to compete against in house.

At a minimum you need someone with legal training (in the relevant field of product liability) and some knowledge of the the substantive area being warned about, to review your manual at least every 2-3 years or more often if substantial changes to the manual or product are being made. Having someone outside the company critique the manuals is essential. This is a continual process and should be examined in a comprehensive fashion; again not just the manuals themselves but the delivery system, the design, the languages, the timeline etc. Once this is done properly inside people can be trained to carry on the work on a yearly basis.

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