Parents across the country are often on the lookout for the latest “hot” items for their kids, and social media can be a way for parents to find out what’s popular. One toy that is very popular on social media is the Fidget Pop It.
Some may remember the Fidget Spinner, which peaked in popularity in 2017 (as we wrote then) and the controversy it caused. Although the popularity of the fidget spinner has waned, consumers don’t seem to be done with fidgets just yet. A new TikTok sensation – the Pop It Fidget – is one of the most popular toys out there right now. With a variety of colors and shapes to choose from, kids across the country are clamoring for the new “It” toy.
But while the Pop It Fidget is being marketed as a stress reliever, consumers seem to be using it for anything and everything, as seen on Tik Tok. With new social media trends going viral almost daily, trends that drive product abuse can gain traction and become popular overnight. As product abuse becomes increasingly well known via social media, where does this leave manufacturers?
Product abuse goes viral
Recent viral TikTok videos show consumers using the Pop It Fidget as a food mold to make candy bars, an ice cream tray, and even a “board” for arranging different marble patterns. The danger posed by social media is that many children who would not normally use a pop-it fidget for an “off-brand” purpose, such as a food form, are prompted to do so for the “likes”, in the hope that their video will go viral and gain national or even international recognition. Couple the possibility of going viral with pandemic boredom, and best judgment often goes out the door.
With 50 million US daily active users on TikTok and 115 million total US active users on Instagram, social media can be an extremely powerful tool. On the one hand, social media trends affecting different consumer products can often be a good thing as they increase brand or product awareness. On the other hand, trends that abuse a product serve to publicize that abuse and spread it at lightning speed. Just think back to the Tide Pod Challenge and the Gorilla Glue Challenge
What manufacturers can do against tendencies towards abuse
Whether a manufacturer can be held responsible for injuries resulting from product misuse usually differs between jurisdictions. Product abuse can constitute either a partial or full defense in a product liability lawsuit. The crucial question in many cases is whether the product has been misused in a reasonably foreseeable way
In general, foreseeability includes what can reasonably be expected and not everything that might possibly occur. However, with social media and the possibility of videos going viral overnight, the landscape of what is “reasonably predictable” can change quickly. For example, using Pop It Fidgets for cooking, intentionally eating a detergent capsule, or using a glue gun to style your hair may not be “reasonably foreseeable” uses of those products. But when a video by a social media influencer using those products in an off-brand way — and encouraging others to do so — goes viral, the product abuse becomes public and spreads faster than ever. Once this misuse gains widespread attention, litigants can argue that the misuse of the product has become reasonably foreseeable
Although most jurisdictions check whether the abuse was reasonably foreseeable at the time of sale, in some jurisdictions manufacturers can be held liable for abuse that became reasonably foreseeable after the product was sold. In these jurisdictions, it may be wise to consider post-sale warnings of foreseeable abuse discovered later. For example in Temple vs. Velcro USA, Inc., 196 cal. Rptr, 531 (Ct. App. 1983), The manufacturer discovered after the sale that its locking device was being used in hot air balloons, which the device was not designed for. The manufacturer has made repeated efforts to alert the aviation community to the danger of this abuse, which has included a written warning to all registered balloon owners. The court found that the warnings were sufficient for the manufacturer to avoid liability
Viral trends lose popularity almost as fast as they gain it. With today’s viral trend in decline and the next just around the corner, manufacturers may wonder whether it’s worth changing warnings and labels, or even considering changing them. In any case, it is advisable that manufacturers pay attention to the warnings and labels on their products and keep up to date with how consumers are using and, more importantly, abusing their products.