Products in a Pandemic: Liability for Medical Products and the Fight against COVID-19

Abstract

The global war against severe acute respiratory syndrome coronavirus-2 (SARS-CoV-2), and the disease it causes (Covid-19), is being fought by many countries on many fronts. Equipment is essential in any war , and it is no different where that equipment takes the form of medical supplies. Faced with the current pandemic, a vast global demand has arisen for an array of products, from test kits and chemicals, personal protective equipment (PPE), hand sanitisers and other biocidal products, ventilators and similar devices, as well as medicines, treatments and (of course) a vaccine. Producers are now scrambling to meet that demand by ramping up production, developing modified and new products at astonishing speeds, as well as manufacturing in novel ways.

So what of the legal considerations? In this piece we explore from a legal perspective some of the issues that might arise, and how existing legal concepts might respond. Our purpose is not to erect legal road blocks in the way of meeting demand for essential healthcare products; quite the contrary. It is to contribute to the consideration of the application of laws covering product liability and regulation an early stage, when ex ante measures (such as providing warnings, obtaining indemnities from government etc) are still available to producers and lawmakers.

Keywords: Product Liability, COVID-19, Defect, Development Risks, Immunity, Indemnity, Compensation Schemes

JEL Classification: K13, K22, K32