When we think of product liability, our minds often go straight to the manufacturer—the company behind designing and producing the product. It seems natural that they would be the ones held responsible for issues like design defects, manufacturing defects, or even inadequate warnings.
But here’s where it gets interesting: in several cases, companies that don’t actually manufacture a product can still be considered “manufacturers of record” and be held liable for product liability claims.
“Product liability isn’t just about who made it—it’s about who touched it, sold it, shipped it, or put their name on it,” says Eric Austin, Amerisure Risk Management Expertise Specialist.
Curious? Let’s break it down with some real-world scenarios.
Private Labelling and Branding
Scenario: Picture this: a retail chain partners with a third-party manufacturer to produce goods under its store brand. You’ve probably bought these items—think generic cereals or store-brand electronics.
Manufacturer of Record: Even though the retailer didn’t physically produce the goods, once they apply their brand to the product and sell it, they’re considered the manufacturer of record. That means they could be responsible for any defects, safety issues, or liabilities tied to the product.
Example: Perhaps a store-brand toaster causes a house fire due to a manufacturing defect. If the store sold the toaster under their label, they could be considered the manufacturer of record, even though a separate factory made the product.
Assembled Products
Scenario: Some companies assemble finished products using parts sourced from various manufacturers, branding the final product as their own.
Manufacturer of Record: Even if the company didn’t create the individual components, assembling and branding the product may place them in the manufacturer’s role. They could be liable for any defects introduced during assembly or related to the final product’s performance.
Example: Think about a laptop company that builds computers using processors, hard drives, and screens sourced from other suppliers. If a short circuit caused by faulty wiring damages the laptop, the assembler—not the component makers—could likely face the liability.
Companies That Customize or Modify Products
Scenario: A company buys standard products but adds custom modifications or features before selling them to customers.
Manufacturer of Record: Once a product is altered, the company responsible for the changes typically assumes liability for any issues resulting from those modifications—even if the original product met all safety requirements.
Example: Picture a seller of industrial equipment adding custom electrical panels to machines. If the modifications lead to a fire or malfunction, the modifying company could be held liable as the manufacturer of record.
How Can a Company Protect Itself?
Becoming a de facto manufacturer doesn’t have to mean taking on massive risks. Implementing strong protections and best practices, as well as understanding how to protect your business from liability, is essential—not just for legal reasons, but to help build consumer trust and brand resilience. Let’s dive into some practical strategies:
For Private Labeling and Branding
When you sell a product under your own brand name—even if it’s manufactured by someone else—you could be on the hook for its safety. That’s why detailed contracts with third-party manufacturers are important, including indemnification clauses can help protect you from certain losses, damages or liabilities that may arise from product defects. Also, require product liability insurance that names your company as an additional insured.
Beyond contracts, demand evidence of compliance with safety standards. Be sure to conduct routine quality control inspections and implement a recall response plan to address defects before they escalate into possible lawsuits.
For Assembled Products
If your product is the sum of many sourced components, liability could still fall on you. That’s why it is recommended you include indemnity clauses in supplier contracts and ensure all component suppliers carry adequate liability insurance, with your company listed as an additional insured.
At the operational level, conduct rigorous quality checks at every stage of the assembly process. Comprehensive liability insurance should cover the entire assembled product to protect against defects that arise during integration. Learn more about best practices for product quality at the National Institute of Standards and Technology (NIST).
For Companies That Customize or Modify Products
Customizing or modifying existing products—whether through design tweaks or functional upgrades—could transfer safety responsibility to you. Protect your business by clearly outlining liability in contracts and using disclaimers for unaltered components.
Crucially, test all modifications thoroughly and certify safety compliance with help from professional engineers when necessary. The Occupational Safety and Health Administration (OSHA) offers specific guidance on modifying machinery and equipment safely.
Best Practices for All Businesses
Regardless of your business model, some liability protections are universal:
- Robust Product Liability Insurance: This is your financial safety net for claims involving defects, injuries, or recalls.
- Supplier Audits: Regularly verify that your suppliers meet safety and quality benchmarks.
- Consumer Feedback Channels: Establish systems for customers to report issues and act swiftly on complaints.
- Traceability Systems: Maintain detailed records of sourcing, testing, and manufacturing to streamline recalls and defend against legal claims.
- Legal Counsel: Partner with professionals to draft airtight contracts and stay up to date with evolving regulations.
Looking Ahead
Navigating the complexities of product liability doesn’t have to be overwhelming. Understanding when your company might be considered a manufacturer, combined with proactive safeguards, can help reduce risk and protect your business. Whether you’re private labeling, assembling, or modifying products, preparation is key to staying ahead of potential challenges.
Prioritize quality control, strengthen your contractual protections, and ensure compliance at every stage of the process. With these steps in place, you can confidently manage liability risks while maintaining trust with your customers. For more expert advice, actionable resources, and tools to safeguard your business, visit our Risk Management page.
The information provided in this article is for general informational purposes only and does not constitute legal advice. We recommend consulting with an attorney to ensure compliance with all applicable laws and to receive legal advice tailored to your specific circumstances.
