Wes Henricksen, ‘Deceive, Profit, Repeat: Public Deception Schemes to Conceal Product Dangers’

ABSTRACT
Companies in numerous industries have misled the public by hiding the dangers posed by their products. Sugar manufacturers hid the dangers of high fructose corn syrup and misdirected the public’s attention to fat, causing an epidemic of diabetes, obesity, and heart disease. Opioid manufacturers hid the dangers and addictiveness of opioid painkillers, leading to the opioid crisis. Fossil fuel companies misled the public about the causes, certainty, and effects of global warming, resulting in massive unregulated CO2 emissions and causing one of the greatest threats to humankind. This Article identifies all such schemes as belonging to a category of wrongs called ‘Public Deception Schemes to Conceal Product Dangers’, or ‘PDCPD Schemes’. PDCPD Schemes do not fit into any existing tort framework. Accordingly, those harmed by such schemes are often left with no way to seek redress against the wrongdoer. This Article proposes that this gap in the tort law be closed by legislation similar to how the state ‘blue sky’ laws and Section 10(b) of the Securities Exchange Act of 1934 closed the loophole in fraud law that allowed those committing securities fraud to evade liability. Closing this gap would further numerous tort policy goals, including shifting the loss to those responsible for causing it and expanding the scope of liability for those who commit intentional, wrongful conduct.

Henricksen, Wes, Deceive, Profit, Repeat: Public Deception Schemes to Conceal Product Dangers (2020). Cardozo Law Review, forthcoming.

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