Are English-only warnings still adequate?

Our industry has spent a great deal of time and effort to develop warnings material that it provides to customers to inform them of the potential dangers associated with the use of propane.

In addition to information about the flammable characteristics of the product, there is information about the odorant added to alert of a leak, warnings about odorant fade and limitations by some people to detect the odor, even if it is present, and recommendations about gas detectors.

A great deal of time and discussion has been spent looking at what we say and how we get that information to our customers. The industry stresses the need to get information to customers before they initiate their propane service. This is often done at the time of installation with the distribution of warnings packets. It is often followed up with annual mailings. Many marketers provide the warnings material when the customer signs on at the office and before the gas system at the property is activated.

We all know someone who speaks a language other than English. With the large immigrant population continuing to grow in prominence in the country, it is increasingly likely that some of your customers have English as their second language. Some of your customers may speak English but will not be able to read English.

With this backdrop in mind, we should ask whether English-only warnings are adequate with the changing population demographics.

A recent case out of the 7th U.S. Circuit Court of Appeals – Farias v. Mr. Heater Inc. – addressed the issue of whether English-only warnings are legally sufficient. In this case, the plaintiff purchased two propane heaters from a big box store and installed them in her home in violation of the English warnings on the heater that read “Warning: Not for home or recreational vehicle use.” A fire, caused by the heaters, destroyed the home, leading to about $300,000 in damages. The lawsuit was brought against the big box store and the manufacturers of the heaters.

The plaintiff claimed that the warnings on the heater were inadequate because she was Hispanic and did not speak English, and the pictorials were ambiguous. The plaintiff lived in a large Hispanic community in Florida. The plaintiff sought to apply a rule that warnings should be tailored for a particular person to reasonably understand. In this case, the jury was asked to look at the plaintiff and determine if English-only warnings were reasonable for a non-English-speaking Hispanic person.

The court declined to adopt this standard of review of the warnings in question. Instead, it applied an analysis of the warnings to the common reasonable person. Said differently, the standard looks at what is considered reasonable for the average person reading the warnings. Under this standard, the court decided that the English-only warnings were adequate and upheld the dismissal of the claim.

In coming to this conclusion, the court gave some clarity on when warnings should be tailored to a non-English-speaking community. The considerations for the non-English warnings include: where “the product is sold or used in a dense Hispanic population; the product has been marketed toward Hispanics, such as on Spanish-language cable television; or the product is used in an industry with a large percentage of Hispanic workers, such as the migrant farm industry.”

This guidance on warnings to non-English-speaking populations is evolving rapidly as our population grows increasingly diverse. It applies to manufacturers, distributors and retailers alike. It is an area of the law that needs continuous monitoring by our industry to allow us to adapt to our changing customer base.

John V. McCoy is with McCoy Law Group, S.C., and his firm represents industry members nationally. McCoy can be reached at 262-522-7007 or jmccoy@mccoylawgroup.us.