Treacherous Toyland?

Stephen Ochs
While they might seem like harmless fun to open-minded people, sex toys can cause serious injuries (and serious legal headaches) if they're misused or defective. Novelty makers and sellers face unique challenges when it comes to legal issues concerning product liability and the legality of selling their products in some parts of the United States, but there are ways of lessening the risk and avoiding unnecessary court cases and costs. Like most things in life, preparation and knowledge are key.

For manufacturers, a safe design is obviously essential; so are printed warnings and proper-use literature. When any of these are missing or incomplete, the result can be a lawsuit.

"Basically, the sex toy industry puts products into the general stream of commerce, which the public consumes and uses to stimulate or enhance sex lives; and when these products injure the general public, they're liable for a number of causes of action," John Morken, an attorney at the Cartwright law firm, told XBiz.

Morken knows what he's talking about based on his years of experience trying "traditional" product liability cases. He currently has a case filed in San Joaquin County against California Exotic Novelties.

"The product was a vibrator, and this product got away from the user and was irretrievably lost in his rectum," Morken alleged. "It ended up in his colon and had to be surgically removed. The plaintiff bought the product and believed he was never informed that if it was used in the manner in which we believe was reasonably foreseeable, that it could injure him."

To the trained eye, the sex toy in question, the Pink Latex Nubby Tipped G, a small vibrator without a flared base, obviously is not poorly designed for anal use, but Morken said many end-users of sex toys are not as well informed about sex toy use and alleges that the manufacturer failed to provide adequate warnings for the uninformed.

"A lot of people are uneducated about these products because they are taboo," Morken said. "But manufacturers can provide proper warnings in the packaging. It's very cheap for them to do that in the grand scheme of things, versus the damages that are caused to plaintiffs and the general public."

By press time, California Exotic Novelties failed to return XBiz's calls regarding the case.

There was also the case of the rampaging rabbit in which a vibrator allegedly injured a 55-year-old New England woman. According to the Boston Herald, attorney Marc S. Alpert filed a suit in March in Boston's Suffolk County Superior Court contending that battery acid leaked from the toy and caused serious burns.

"I was in agony," the plaintiff told the Herald. "It took me two days to work up the courage to go to the hospital. It was so embarrassing."

The defendants in the case include Gillette (which made the batteries), Walgreen's and Lifestyles Inc., the sex toy shop where the vibrator was purchased. The plaintiff said her injuries made sex impossible and caused her boyfriend to break up with her.

One retailer who has been making an effort to keep her customers informed of the proper and safe use of sex toys is Good Vibrations' Carol Queen. Queen, a veteran of the sex business who has been selling sex toys since 1977 at her upscale, woman-friendly boutiques in San Francisco and Berkeley, Calif., takes care to not stock products that might be unsafe.

Quality Control
"We scrutinize the toys we get in," she said. "We look at them to see whether there might be problems in the future, and if we see potential problems or dangers, we just won't carry them," Queen said. "I've seen a dildo with a wire down the middle of it that makes it wiggle and have some motion to it, which is fun, but they were made with the old hot-melt vinyl or jelly material, and over time, as the material got dryer, the wire could work its way all the way through the material and cause an enormous amount of problems. Not good. Not a good idea at all."

Once products pass Queen's initial inspection, the boutique includes its own guides to proper use and care of sex toys. Queen said her stores include warnings, care instructions and proper-use literature with their products above and beyond the manufacturers warning labels that are included with most sex toys.

"Most of the sex toys that are manufactured or distributed in the United States have ‘For Novelty Use Only' written on them, but we don't utilize that as a liable shield," Queen said. "We don't think people take it seriously. We know our customers don't. This isn't just a store for people who are going to bachelorette parties. It's clear that the items in the store have a sexual purpose."

Regarding the warnings placed on sex toys, according to Morken, there is no language that will protect all manufacturers, including the ubiquitous disclaimer, "For Novelty Use Only."

"The proper warning is for the finder-of-fact to decide," Morken said.

Another unique problem facing sex toy manufactures has to do with the legality of selling sex toys in some states. Currently, Alabama, Georgia, Mississippi, Indiana, Texas, Louisiana and Virginia have legal restrictions on the sale of sex toys.

"I would say the first thing you need to do is figure out what your locale brings to the table," Queen said. "Look into whether your state has a sex toy retailing and distribution law. If [it does], don't buy any property in that state. Don't open there."

For manufacturers and retailers not located in the states where sex toy sales are banned, there are simple ways of protecting themselves legally while still selling to sexually experimental Southerners.

"We ship to all 50 states," Queen said. "We looked into where to ship to and our attorneys advised us it wouldn't be a problem. But we don't have any business entities in any states where there might be a problem."

The issue of sex toy legality flared up most recently in Alabama, where retailer Sherri William, along with individuals representing consumers and the ACLU, took her case to the Alabama Supreme Court, arguing that the 1998 law banning sex toys violated civil rights, including the guarantees of free expression, due process and safety from unreasonable government searches of homes. The Alabama Supreme Court did not agree, however, and upheld the law in July 2004. The U.S. Supreme Court declined to hear the case in February until other legal issues in the matter were straightened out by the lower courts, leaving the sex toy ban in legal limbo.

Whether it's from end users being ill-informed as to the proper use of the toys they have purchased, or selling in states with questionable bans on sex toys, retailers and manufacturers who end up in court may find their trial an uphill battle due to the nature of the products they sell.

"Some people treat sex as taboo, and when you introduce products into that arena, they're going to have a different idea in terms of what is decent or what is proper when it comes to sex," Morken explained. "Many counties are very conservative, and in those counties, [juries] might look at that company differently than GM or Ford in the way they perceive the defendant, just because of the trade they're dealing in."

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