Anyone who thinks self-service is a boring industry obviously hasn’t been reading the news lately.
Seriously. I’ve seen some real zingers cross my e-mail in the past few weeks. Check out this Associated Press story, for example. No, there’s no need to hit that refresh button, you read it right. A drug store in Los Angeles has deployed self-service kiosks to dispense medical marijuana. Hash for cash, so to speak. Not only did this controversial deployment raise the eyebrows of some of us here in the office, but it also caught the attention of the good folks at the U.N.’s International Narcotics Control Board in Vienna, who quickly ruled that the machines are illegal and should be shut down. Given that the U.N. has no binding legislative authority in California, it’s doubtful anyone at the drug store is pulling the plug just yet.
Then there’s this story coming out of Union City, Ind. Anyone who’s been in this industry for more than two weeks knows all about the DVD rental kiosks now available at fast food joints. The kiosks enable users to rent copies of the latest movie releases which are viewable for a pre-specified rental period. Well apparently, they’ve stirred quite a controversy in this one little town. It seems parents are worried that the kiosks will provide minors with unsupervised access to movies containing adult material — that Little Johnnie and his preschool buddies might decide to pick up “Fatal Attraction” with their happy meals. So the townsfolk took their case to City Hall and when the city threatened the deployer with a public nuisance citation, the deployer decided to remove all R-rated movie titles from the kiosk’s stock.
These news stories were the material of some great philosophical chatter around the coffee machine here, and not surprisingly, were among the most widely read stories on SelfService.org. I don’t mention them here to declare who was right or who was wrong in each instance, but to make a valid business point. These two seemingly unrelated stories both dredge up an issue that will become increasingly important as self-service continues to grow.
That issue can be summed up in one word: culpability.
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Sure, kiosk deployers know exactly how their products are to be used as well as who is supposed to use them (and who isn’t). But what if the kiosk user decides to take matters into their own hands? What if a disgruntled teenager hits your drug store kiosk and overdoses on Tylenol? Suppose a man who isn’t suffering from any medical condition manages to get a packet from the marijuana kiosk and is arrested later that night in another state? Add to that the people who inadvertently get into trouble, such as the five-year-old who slips a few quarters into a machine, buys a laser pen and burns out his retina.
They’re all disturbing cases, but what do they mean for the deployers? Are they liable for civil damages just because the consumer abused (or misunderstood) the use of the product?
I took the question to Gail Ritzert, a partner at Havkins Rosenfeld Ritzert & Varriale LLP, a law firm in New York.
Ritzert, an expert in product liability law, likened products purchased through a self-service kiosk to products bought online or via a more conventional vending machine. In these cases, she said the responsibility is on the deployer or site administrator to take “reasonable” precautions to make sure that the consumer who is purchasing the product is who they should be … and knows how to use it.
“This kiosk, while it’s not a person, is standing in the place of a seller or a store that is distributing the product,” she said. “What reasonable steps were in place to make sure that you did what could be done to eliminate the person who should not have access to what the product is?”
Unfortunately, she says the legal definition of “reasonable” can vary on a case-by-case basis.
“What I would say to the manufacturers and those who are distributing the product is: Make sure that you check the product because you’re not going to have control over the person who uses the machine,” she said. “That being said, depending upon the software that is used, there are some things that could probably be built in to make sure that there are certain triggers on different things.”
Making sure all of the products in the kiosk have proper warning labels can be a good start, she says. She adds that — for some age-specific products — it might be a good idea to require the consumer to verify that they are above a certain age range. This can be done via a push button or touchscreen interface.
While that may not stop underage consumers from obtaining something they shouldn’t, it will likely demonstrate — to a jury if necessary — that the deployer was taking some steps to protect them.
“We can’t eliminate all misuse,” she said. “But again, the question it comes down to is: Were reasonable steps taken to make sure that directions or age appropriateness were followed?”
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In the meantime, keep your eyes on the developments in Los Angeles and in Union City. The outcomes in both instances will no doubt have a significant impact on the types of products that will or won’t be offered at a kiosk near you in the future. In the meantime, feel free to check SelfService.org for all the latest on these two cases. We’ll be here to “hash” out the details.
