Legal liability when giving sample products to friends?
December 9, 2020 5:17 PM   Subscribe

I’m currently making a new type of adult product (similar to some existing sex toys). I want to give some prototypes of the product I’ve made to a friend to get user feedback. However, I’m wondering how concerned should I be about liability and legal issues in this situation?

My friend and I had an idea for a new type of adult product, something that’s going to basically be inserted into orifices down there. Our hope is to one day turn this into business, but at the moment it has been restricted to me tinkering around in a spare area of my apartment making various prototypes.

Before investing heavily in this, I’d like to get feedback from potential users. I have a friend, who lives in Arizona (I’m in Australia), who says he would be happy to ask his friends to try out the product.

My concern is whether I should be really worried about potential lawsuits if my sample somehow causes harm. Now, to be clear, I don't think this will happen. The product is similar to existing ones on the market, and shouldn’t be any less safe. I will be making and carefully inspecting each sample to ensure it’s completely smooth, mechanically robust, etc. I can't really see how one could hurt themselves with it, unless they were intentionally trying to or reckless/under the influence. However, I suppose you never know.

My potential business partner suggested maybe forming a company to somehow shield us from liability. However, not sure this would also protect my Arizonan friend distributing my samples. Also, I don’t intend to actually sell this for some time, so maybe a company is overkill and maybe a waste if it all falls through? I also thought about the idea asking people who receive the item to sign some release form, but this seems possibly hyper-legalistic and maybe ineffectual anyway. So not too sure what to do here.
posted by strekker to Law & Government (6 answers total)
I know this isn't exactly the answer you're looking for, but you need a lawyer, possibly two or more. (Also you probably need one for sending commercial goods from Australia to the United States.)

The answer to your actual question is yes, yes, one thousand times yes, you are potentially liable if your product causes injury, and no, you probably can't write your own release form that would hold up in court. (Also, who in their right mind is going to stick something into themselves if the company making it feels the need to have a release form, that doesn't exactly show confidence in the product.)

For example if you buy bulk silicon and then form it into a sex toy you had better sent a sample to a lab to ensure what you bought is actually medical grade silicon. By presenting something as a sex toy you're making an implicit warranty that it's safe for internal use, and if you don't actually know that to be true - not by relying on a vendor, but by testing your own product - you're going to end up in a world of trouble. Maybe not with the first batch, but eventually. Also there's a moral aspect, you shouldn't offer something as a sex toy without knowing for sure what materials are involved.

There are a whole host of companies who have messed his up badly and made dangerous toys (see Given the legal climate in the United States it would not for a second surprise me if there was a lawyer who specialized in suing people in this area. Certainly there are a ton that do product safety in general.
posted by tiamat at 6:11 PM on December 9, 2020 [12 favorites]

My potential business partner suggested maybe forming a company to somehow shield us from liability.

What everyone else already said, and: this part isn't a maybe, it's an absolute must.
posted by skye.dancer at 7:21 PM on December 9, 2020 [2 favorites]

Yeah, in this theoretical world, get a handful of lawyers, set up a company and spend all sorts of money to protect yourself from a lawsuit that has a probability of happening of extremely low. I cannot tell how many prototypes you are planning on distributing to your friend in Arizona, but if it were me, and it were less than 10 and I knew the friend real well, I would just do it and not worry about the liability. Look at the tables that describe what a limb is worth if you lose it. Sadly, it is not that much. You'll spend that much money in lawyers trying to prevent something like that. If you are worth a lot of money and are willing to spend money to protect it, then lawyer up. If you are not especially wealthy, consider just giving them to your Arizona friend as a gift.

If you ask this question on this board, you will surely get the lawyer up answer. To me, it is a risk reward question. The risk of something happening if it is well made and similar to other types of products in the market and the risk of someone suing you for something going wrong, and add to that that you are halfway across the globe, I would say that your financial risk is de minimus.

Your moral risk, what you think you owe to someone for hurting them is something you have to decide.
posted by AugustWest at 8:13 PM on December 9, 2020 [9 favorites]

Response by poster: Thank you all for the advice. I will definitely think long and hard about giving this out to just anyone. Unfortunately, I don't have the means to lawyer up in a big way, but it is good to know how to do it properly for the future if we can grow a company to something more significant. Probably what I will end up doing is what AugustWest suggested, but maybe only involve a very small group (e.g. a few old friends) and make them well aware of any and all risks, however small.
posted by strekker at 2:48 AM on December 10, 2020

I think you're better option is to test it to your own satisfaction without putting others at risk, then get a patent on the design, then shop it to sex-toy companies. Now, don't underestimate sex toy companies' willingness to just steal ideas, but that's likely to happen even if you were manufacturing and selling your items directly. If you patent it, and then get a sex toy company to buy in, then they're on the hook for the hardcore testing but they likely already have lawyers and paperwork in place already.

You'll likely still need a lawyer for the patenting process, but you carry a lot less liability and will probably spend less money in obtaining a patent.
posted by AzraelBrown at 6:52 AM on December 10, 2020 [1 favorite]

Remember that creating a corporation or LLC does nothing to protect you from liability for your own negligent actions. It just means that you personally cannot be sued for the negligent actions of the other employees if you had nothing to do with their actions.

(That's roughly accurate and of course it can picked apart. And it's legal information, not legal advice.)
posted by megatherium at 1:29 PM on December 10, 2020 [1 favorite]

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