Who Is Accountable For Product Abuse? And Other Conundrums…

Who Is Accountable For Product Abuse?Gases and welding distributors are aware of the potential safety hazards that come with the products they sell. Educating customers on proper safety procedures and precautions can help prevent accidents. But what happens when the customer deliberately ignores safety warnings? When gases and welding equipment is misused, the results can be fatal; and the distributor can ultimately be held accountable.

In a recent conversation, one distributor shared his concerns about customers trying to buy nitrous oxide gas to be used as an inhalant. “They bring the gas to concerts, where they fill balloons and then sell them to other people. In response, we have adopted a policy of verifying what the customer is using it for.” However, customers have adapted, too. “In one instance, an individual came to us to buy nitrous oxide and said he ran an ice cream stand and was planning to use the gas for whipped cream. He went to great lengths to back up the story and even provided the names of vendors. But when we called them, his story didn’t check out.”

“What that distributor did makes a lot of sense,” says GAWDA Government Affairs and Human Resources Legal Consultant Rick Schweitzer. “If you don’t know the customer, you have a right and a duty to investigate. You can ask the individual to provide company information, references and documentation to confirm what they are using the product for. If you can’t reasonably verify the truthfulness of the assertion, then err on the side of caution and don’t sell the product.”

At the very least, Schweitzer says, your cylinder may end up on the other side of the country and you may never recover the asset. At the worst, individuals can be injured or killed, and it can be the distributor who is held accountable. “When a product such as nitrous oxide or helium is abused, there are legal ramifications for a distributor,” says Schweitzer, who got to know the issues surrounding nitrous oxide abuse as a member of joint GAWDA/CGA taskforce that worked to develop safety and security recommendations for distribution of the gas. “A distributor may be subject to civil liability for personal injury.”

In some cases, those who store nitrous oxide can be blamed for the gas falling into the wrong hands—even when the product was never sold to those who abused it. In 2002, a lawsuit was brought against Massachusetts Institute of Technology (MIT), alleging wrongful death with gross negligence after a student asphyxiated as a result of nitrous oxide intoxication. Richard Guy, a physics student at MIT, stole the gas from a school laboratory during a school orientation. After his death, Guy’s parents sued the school for lack of supervision and not properly securing the gas to keep students from accessing it. Three years later, in June 2005, the two sides reached a settlement out of court.

Although a court decision was never reached, Guy v. MIT illustrates that a company can be brought to trial when it played no active role in providing the gas. Even if acquitted, a lawsuit can be costly and time consuming. However, there are measures that distributors can take to protect themselves. “You should have a strong security program for your products that are subject to abuse. They should be under lock and key inside your facility. They should never be outside,” says Schweitzer, who came across many horror stories while working on the nitrous oxide taskforce.

The FDA’s draft Guidance for Medical Gases specifies that “entry into areas where medical gases are held must be limited to authorized personnel (§ 205.50(b)(1)(iii)).” The agency goes further by stating, “We recommend areas where nitrous oxide is held be especially secure.” However, Tom Badstubner, FDA and medical gases consultant for GAWDA, says the exact meaning of “especially secure” is unclear. “The FDA does not have a standard for what that means.” Specific requirements to thwart theft exist only on a state-by-state basis. According to Badstubner, several states, including Texas and Nebraska, require distributors to keep inventories of nitrous oxide. Nebraska goes a step further, requiring them to report any missing cylinders. Because the laws vary from state to state, it is important to know the laws that affect your business. Ultimately, as Schweitzer points out, “Your company’s name is on the cylinder. If something happens, it’s easy to track it back to the distributor.”

To thwart abuse of nitrous dioxide, some distributors are going beyond the requirements and taking matters into their own hands. Racing-grade nitrous dioxide is more easily obtained than the medical or food-grade versions, and is therefore one of the most common targets for abuse. Many distributors have taken to odorizing the gas with sulfur dioxide, making it more difficult to inhale. Schweitzer says the nitrous oxide taskforce considered developing a mandate to odorize the gas, but the idea was eventually dismissed in favor of delivering an unadulterated product.

Do you think distributors should be held accountable for what their customers do with their products? Should there be a mandate requiring the odorization of nitrous oxide? Whose responsibility is it to find out what products are being used for, and how much is enough when it comes to verification?

On another note, a salesperson working for a distributor is struggling with a potential sale of carbon dioxide to a customer using it to grow medical marijuana in a state where it is legal to do so. The salesperson works throughout several states and does not agree with the state’s decision to legalize the drug. Is the salesperson under obligation to sell the gas to the customer?  Is it better to lose a sale than compromise your beliefs?

How do you handle these ethical quandaries?

Gases and Welding Distributors Association