Sometimes Baby Products Are Harmful. Can Parents Actually Seek Justice?
By Martha Perez-Pedemonti
There are basic supplies that most parents and caretakers need to care for their infants. These include baby bottles, a breast pump, diapers, a noise machine, toys, a baby monitor, and a bassinet – among other items. Unfortunately, like any product, children’s products do sometimes cause injury. Injuries related to toys and children’s products include toxic chemicals, choking hazards, fire hazards, button battery ingestion hazards, suffocation and strangulation, ingestion, loud sounds, among others.
When a product causes severe injuries or death, caretakers should have the option to bring the company to court and seek legal relief before an impartial judge or jury. They may instead be shocked to find out that companies are increasingly incorporating forced arbitration clauses into their online terms, preventing parents from accessing the courts if something goes awry with a product purchased online.
What happens when a company inserts a forced arbitration clause into its terms?
Forced arbitration clauses require consumers to accept that any disputes that may arise in the future between them and the company must be addressed through arbitration and cannot be resolved in court. These clauses also often bar consumers from bringing any dispute as a class action, an especially onerous hurdle for individuals with small-dollar claims. Arbitration proceedings are notoriously secretive since proceedings and decisions are, with few exceptions, not made public or required to be reported to state or federal courts or agencies.
Moreover, arbitration tends to award consumers less money than courts. Even when consumers . Sometimes, corporations will update their terms of service in anticipation of a legal dispute, allowing them to adopt more favorable terms for themselves. Arbitration firms also have ongoing problems making diverse arbitrators available to hear cases, making it especially difficult for consumers of color and consumers from disadvantaged communities to be heard by an arbitrator with similar life experiences.
Click here to learn more about how forced arbitration provisions impact communities of color.
This means that, despite the amount of money and time caregivers spend picking the safest products for their kids, if they or their child get hurt by the product, they will not be able to take the company to court to seek justice if the product’s terms incorporated forced arbitration provision.
How could forced arbitration impact parents and caregivers shopping for children’s products?
We reviewed the terms and conditions for some of the most popular baby products of 2024 according to leading online stores and found that many of them include forced arbitration provisions in their online terms. While some of the online terms we reviewed incorporate opt-out provisions (allowing consumers to opt-out provisions within a specified time-period, providing consumers with the opportunity to reject forced arbitration clauses, however consumers must overcome onerous requirements to do so. Moreover, some online terms of services also provide consumers with the opportunity to file claims in small-claims court and those claims are often capped at between $3,500 and $20,000, depending on the state.
For the most part, the forced arbitration provisions reviewed by Public Citizen apply to all purchases made on specific website. For example, one terms of sale provision states:
By purchasing any product, software, and/or services and support (“Products” or “Services”) from Happiest Baby, Inc. (“HBI”) whether through www.happiestbaby.com, one of HBI’s mobile applications or other websites (the “Websites”) or otherwise, you agree to be bound by these terms of sale (the “Terms of Sale”). …
THESE TERMS OF SALE INCLUDE AN ARBITRATION CLAUSE WHICH WAIVES YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE LAWSUIT.
The products we found to contain online forced arbitration provisions include:
- Philips Avent products, including the Natural Response All-in-One Gift Set.
- Elvie products, including the widely popular wearable Elvie Breast Pump.
- The Honest Company products, including its monthly diaper and diaper wipes subscriptions, and add-on products like shampoo, conditioner, hair detangler, moisturizing lotion and balm.
- Hatch Rest sound machines.
- Lovevery toy subscriptions, including The Play Gym
- The Nanit X Babylist Ultimate Bundle, which can only be purchased on Babylist – a site that imposes a forced arbitration agreement on anything “ purchased from Babylist or third parties through the [w]ebsite or any Babylist mobile application”.
- The Happiest Baby Snoo Smart Sleeper Bassinet is a bassinet with features that are remotely controlled with a phone app. Happiest Baby incorporates arbitration agreements for all of its products and services.
If a caretaker or child were injured by one of the above-mentioned products or another product covered under a forced arbitration provision, the parent and child would be precluded from filing a claim in court or have a case presented before a jury if they had failed to opt-out of the forced arbitration agreement or if their claim falls outside of the small-claims court requirements. They would instead be forced into private arbitration proceedings.
Of course, the existence of a forced arbitration provision does not mean that a product is unsafe. Unfortunately, though, sometimes products are defective. Parents and caretakers have enough on their plates while raising a child. They should not be forced into arbitration if a product injures their child.
What Public Citizen is Doing to Address Forced Arbitration
For many years, Public Citizen has been working to help enact legislation that will ban the use of forced arbitration clauses in consumer agreements, including agreements that come with children’s toys and products. To read reports we have published about forced arbitration please click here and here.
Public Citizen supports thee Forced Arbitration Injustice Repeal (FAIR) Act of 2023, H.R. 2953, introduced by Representative Hank Johnson (D-GA) and Senator Richard Blumenthal (D-CT), would ban the use of forced arbitration clauses in future employment, consumer, antitrust or civil rights contracts.
Click here to learn more about our work to end forced arbitration.