597. Kathryn E. Spier, Product Safety, Buybacks and the Post-Sale Duty to Warn, 10/2007. Revised 9/2009; subsequently published in Journal of Law, Economics, and Organization, October 2010, 1-25.
Abstract: A manufacturer learns a product’s risks after it has been sold and distributed to consumers. When held strictly liable for product-related injuries, the manufacturer offers to repurchase the product when the risk exceeds a threshold. Consumers accept the offer when their private valuations of consumption are smaller than the buyback price. The manufacturer’s private incentives to stage a buyback are insufficient, the buyback price offered is too low, and the continued product usage by consumers is excessive. The ability of the manufacturer to repurchase the product ex post reduces the incentive to design safer products ex ante. A negligence rule, the “post-sale duty to warn,” implements the social welfare benchmark.