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  • Kirk Hartley

Selling Risky Products – Is a Clear Conscience Enough – Global Approaches Needed

Suppose a new a business is planning to undertake global sales of products that contain known or suspected carcinogens. Suppose also that the proposed seller declares that he has a clear conscience on the rationale that the products are desired by buyers, and that short-term measures may or will block exposures during production, and during initial sale and use of the product. Suppose also that the proposed products inevitably will cause exposures down the line ?

Should that new business be allowed to go forward ? Should the business and its products be regulated by global corporate and tort law that does not yet exist ? Should the business and its products be regulated solely by the law of the place of incorporation ? The law of the place where people become sick? Should there be special rules that require the business to in essence buy and escrow real, collectible long-term insurance commensurate with the risks ? Or, should the business simply proceed ahead with the freedom to disappear out of existence before long-term harms become apparent.

To give context to the questions, consider a couple of examples from asbestos mining. For one, consider this article on an African mine that is a financial disaster. Consider this prior post with information from an article focused on a Russian-sponsored asbestos mine and industry in the town of Asbest. And consider also this latest Canadian article regarding the ongoing debate about whether there will or should be new investment in a Canadian asbestos mine. On one hand, scientists, doctors and some ngo advocates argue that asbestos should be banned globally. But some mine workers, government officials, and capitalists argue that sales should continue because the fibers help to create building products for use in nations such as India. The proposed new business owner declares that he has a "clear conscience." According to this Financial Times article on the mine: "Expansion would boost production from the 100-year-old mine from an estimated 15,000 tonnes this year to 180,000 tonnes in 2012 and an eventual capacity of 260,000 tonnes, or about 10 per cent of global production."

Also consider tobacco. On the human scale, the annual global toll of cancer deaths by smoking is predicted to soon each eight million deaths. On the financial scale, the annual global cost of all cancers is estimated at $ 1.5 – 2. trillion. So, over a decade, we know that tobacco sales will cause tens of millions of agonizing deaths, and some trillions of dollars of money spent on health care for humans poisoned by products sold for a profit.

Conclusion? Globalization requires new legal rules. Traditional jurisdictional, corporate and choice of law rules are losing usefulness and fairness. Decisions to sell carcinogens on a global scale should be subject to at least minimum global rules. Business will complain that potential new global rules are presently unknown and create uncertainty. That’s true. But the business knows that it is selling an actual or suspected carcinogen, and knows that the sales create uncertainty and risks of death for end-users and so-called "bystanders." What moral claim does the business have for certainty for itself when it knows it is creating uncertainty for human beings?

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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