The maker of Lysol also issued a statement warning against any internal use of its disinfectant after President Donald Trump suggested the possibility of an “injection” of disinfectant into victims of the coronavirus. The warning reflects an interesting legal problem for these companies. Under product liability rules, a company is liable for the “foreseeable misuse” of its products. While the intentional ingestion of household cleaners have been a problem in a small number of cases, President Trump’s musing about its use could encourage others to attempt such a home remedy. We have already seen such poisonings from products ranging from tainted alcohol to fish tank cleaners. Lysol and other companies have every reason to issue warnings, particularly in the baffling absence of a corrective statement from the White House. Polls show that only 23 percent of viewers have a high level of trust what the President says on the pandemic. That is notably lower than his support in most polls overall. There are still many who trust the President on advice to a moderate or high degree. Ultimately, this is not about politics. This type of statement is dangerous for those who do rely on the President for information on the virus. Update: The White House has issued a statement this morning blaming the media for misrepresenting the President’s remarks.
President Trump’s comment shocked many last night. He made the remarks after a helpful briefing from Bill Bryan, who leads the Department of Homeland Security’s science and technology division, on research that showed that the virus doesn’t live as long in warmer and more humid temperatures. He also discussed the success of bleach and alcohol to kill the virus on non-porous surfaces.
That was all to the good and even supported Trump’s earlier comments that summer could diminish the virus. Then Trump said the following: “So supposing we hit the body with a tremendous — whether it’s ultraviolet or just a very powerful light — and I think you said that hasn’t been checked because of the testing. And then I said, supposing you brought the light inside the body, which you can do either through the skin or some other way, and I think you said you’re going to test that, too . . . I see the disinfectant that knocks it out in a minute, one minute. And is there a way we can do something like that by injection inside or almost a cleaning? As you see, it gets in the lungs, it does a tremendous number on the lungs, so it would be interesting to check that.”
Trump did not explain what he meant by disinfectant but they were discussing bleach and isopropyl alcohol. The President rather to “something like that”
disinfectant that kills the virus in a one minute:
This all put companies in a legally precarious position. Products must be designed to protect against foreseeable misuse. See RESTATEMENT (THIRD) OF TORTS: PRODUCTS LIABILITY § 2 (1998). Court have ruled that “if the injury resulting from foreseeable misuse of a product is one which an adequate warning concerning the use of the product would likely prevent, such misuse is no defense.” Bristol-Myers Co. v. Gonzales, 548 S.W.2d 416, 422-23 (Tex. App. 1976), rev’d on other grounds 561 S.W.2d 801 (Tex. 1978). It is easy to exaggerate the foreseeable misuse claims but it is a constant concern for manufacturers. The President’s comment does not instantantly make this foreseeable but it certainly increases the risk for people who may be willing to use such products. Given the recent Tide Pod Challenge, there is always a certain percentage of reckless actors.
“As a global leader in health and hygiene products, we must be clear that under no circumstance should our disinfectant products be administered into the human body (through injection, ingestion or any other route). As with all products, our disinfectant and hygiene products should only be used as intended and in line with usage guidelines. Please read the label and safety information,” the statement continued, adding that the company believes it has a “responsibility in providing consumers with access to accurate, up-to-date information as advised by leading public health experts.”
As someone who has taught torts for 30 years, this is one of the strangest situations that I have seen in this area of product liability. Even a passing statement by the President can induce people to attempt a home remedy in the use of such disinfectants. It is for that reason that I am astonished that the White House did not immediately send out a statement that the President was not suggesting the use of household disinfectants. That failure to issue a corrective statement only magnifies the legal concerns for these companies.
These products already have warning against ingestion, which is one of the primary risks for disinfectant companies. In the end, I do not see how the President’s comment should now make ingestion foreseeable for these companies but, as the President himself often discusses, he has a tremendous reach on television and social media. For that reason, a warning is wise for these companies in counteracting the impact of this comment.
This is the type of confusion that could lead to the loss of life. For that reason, the White House needs only issue a statement amplifying these warnings and stating that the President was not suggesting that household cleaners or disinfectants should ever be injected or digested. This was a couple ill-considered lines, but it was a dangerously notion to promulgate in the minds of consumers. Again, the White House seems a couple steps behind of the news cycle. Had a corrective statement been issued last night, the media hit would not have been avoided entirely but certainly blunted. Like justice, spin delayed is spin denied.
Update: The White House comments falls considerably short of a clarification. The White House Press Secretary stated: “President Trump has repeatedly said that Americans should consult with medical doctors regarding coronavirus treatment, a point that he emphasized again during yesterday’s briefing. Leave it to the media to irresponsibly take President Trump out of context and run with negative headlines.”
I have often criticized the media for unfair coverage but this was not taking a comment out of context. Moreover, it did not appear to be either a comment made to the media or a comment made in sarcasm, as later claimed by the President. It was an ill-conceived and potentially dangerous comment that could have been addressed with a simple clarifying statement last night.