Manufacturer Liability for Smoking Smartie Candy?

Smarties are a type of artificially fruit-flavored, tart and chalky tablet candy produced by Ce De Candy, Inc. (USA) since 1949. The product should not be confused with Nestlé Smarties.

These days, however, Smarties are more than just a sweet delight. Children crush the candy into a fine powder, pour the powder into their mouths and then blow the fine dust like smokers do with cigarettes.

Whereas children think it is fun because “it looks like you are smoking something but are not” or simply to freak their parents out, teachers, parents and doctors are less amused.

Some are concerned that children could choke while aspirating the wrapper or a whole Smartie. Others are afraid that it might evoke real smoking and other drug usage. Although doctors do not regard Smartie smoking as being life-threatening, it may cause irritation to throats, noses and lungs if inhaled. Frequent usage might even lead to infections or maggots that feed on extant sugar dust, a rare scenario though.

Although it has been banned from some schools, the fad does not stop. It can especially not be banned from the Internet where dozens of videos demonstrate step by step how to become a professional Smartie smoker.

One of the legal questions this topic raises is whether the Smartie’s manufacturer would be liable for any injuries sustained due to peculiar use of its product.

In North Carolina, for example, the manufacturer’s liability would be judged by Chapter 99B: Products Liability of the North Carolina General Statutes (NCGS). Unlike most U.S.-states, North Carolina does not have strict products liability. NCGS § 99B-1.1 states that there shall be no strict liability in tort in product liability actions.

According to NCGS § 99B-3, a manufacturer shall not be held liable in any product liability action where the cause of the injury or damage was an alteration or modification of the product by a party other than the manufacturer and under the premise that the alteration occurred after the product left the control of the manufacturer, unless:
(1) The alteration or modification was in accordance with the instructions or specifications of such manufacturer; or

(2) The alteration or modification was made with the express consent of such manufacturer.

“Alteration or modification” includes changes in the use of the product from that originally intended by the manufacturer.

NCGS § 99B-4 states that a manufacturer shall also not be liable if:
(1) The use of the product giving rise to the product liability action was contrary to any express and adequate instructions or warnings delivered with, appearing on, or attached to the product or on its original container or wrapping, if the user knew or with the exercise of reasonable and diligent care should have known of such instructions or warnings; or

(2) The user knew of or discovered a defect or dangerous condition of the product that was inconsistent with the safe use of the product, and then unreasonably and voluntarily exposed himself or herself to the danger, and was injured by or caused injury with that product; or

(3) The claimant failed to exercise reasonable care under the circumstances in the use of the product, and such failure was a proximate cause of the occurrence that caused the injury or damage complained of.

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Best regards
und viele Grüße aus Charlotte
Reinhard von Hennigs