See, e.g., Associated Press, Homeless Across Country Fall Victim to Synthetic Marijuana, Fox News (Dec. 17, 2016), http://www.foxnews.com/us/2016/12/17/homeless-across-country -fall-victim-to-synthetic-marijuana.html [http://perma.cc/HJ5G-UL4M] (“Nearly 300 homeless people became ill last month in St. Louis.”); Jackie Bensen & Andrea Swalec, 11 People Overdose on Synthetic Drug “Bizarro” in Downtown D.C., NBC Wash. (June 7, 2015, 7:34 AM EDT), http://www.nbcwashington.com/news/local/-At-Least-10-People -Overdose-on-Synthetic-Marijuana-in-Downtown-DC-306311941.html [http://perma.cc /N9KM-2A83] (reporting a “mass overdose outside [Washington, D.C.’s] largest homeless shelter on a type of synthetic marijuana”); Eli Rosenberg & Nate Schweber, 33 Suspected of Overdosing on Synthetic Marijuana in Brooklyn, N.Y. Times (July 12, 2016), http://www.nytimes.com/2016/07/13/nyregion/k2-synthetic-marijuana-overdose-in-brooklyn‌.html [http://perma.cc/LZ72-JMWZ] (noting the popularity of one type of synthetic marijuana among people experiencing homelessness in New York).

Rosenberg & Schweber, supra note 1.

Synthetic Marijuana Lands Thousands of Young People in the ER, Especially Young Males, Nat’l Inst. on Drug Abuse (Feb. 2013), http://www.drugabuse.gov/related-topics/trends -statistics/infographics/synthetic-marijuana-lands-thousands-young-people-in-er -especially-young-males [http://perma.cc/JX9S-UNWA].

See Andy Rosen & Michael Levenson, Mass., N.H. Crack Down on ‘Synthetic Marijuana,’ Bos. Globe (Aug. 15, 2014), http://www.bostonglobe.com/metro/2014/08/15/mass-crack -down-synthetic-marijuana/E5mt2tXU9jNCEis5ofVqjO/story.html [http://perma.cc/PRB7 -7T86]; Rosenberg & Schweber, supra note 1; Synthetic Cannabinoids, Am. Ass’n Poison Control Centers, http://www.aapcc.org/alerts/synthetic-cannabinoids [http://perma.cc /U3G5-HUH8].

Zunny Losoya, Comment, Synthetic Drugs—Emergence, Legislation, and the Criminal and Legal Aftermath of Broad Regulation, 66 SMU L. Rev. 401, 410-11 (2013).

Mike Stucka, List of Banned Synthetic Marijuana Brands, Macon Telegraph (Mar. 28, 2012, 5:28 PM), http://www.macon.com/news/local/crime/article28647490.html [http://perma .cc/4W8C-5KWB].

700 Names for Synthetic Marijuana (Spice, K2, etc.), Spice Addiction Support (Mar. 1, 2017), http://spiceaddictionsupport.org/street-names-for-synthetic-marijuana [http://perma.cc /H9NR-WVLL].

See Jaclyn Reiss, What Is Synthetic Marijuana?, Bos. Globe (Jan. 14, 2016), http://www‌.bostonglobe.com/metro/2016/01/13/what-synthetic-marijuana/x26Si00dViJPPYtgGPm‌9GK/story.html [http://perma.cc/ESY7-Z7BR] (“In recent years, synthetic marijuana has been fairly easy to get. It is . . . often sold at gas stations, smoke shops, and mom-and-pop stores.”).

Dangerous Synthetic Drugs: Hearing Before the S. Caucus on Int’l Narcotics Control, 113th Cong. 5 (2013) (statement of Joseph T. Rannazzisi, Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Administration) [hereinafter Rannazzisi Statement], http://www.drugcaucus.senate.gov/sites/default/files/Rannazzisi_Dangerous%20Synthetic%20Drugs%20Testimony%20%28SDC%29.pdf [http://perma.cc/PYT5-EA2X].

Jeneen Interlandi, Synthetic Marijuana Has Real Risks, Consumer Rep. (May 7, 2016), http://www.consumerreports.org/drugs/synthetic-marijuana-real-risks [http://perma.cc /46JQ-QTL2].

Axel J. Adams et al., “Zombie” Outbreak Caused by the Synthetic Cannabinoid AMB-FUBINACA in New York, 376 New Eng. J. Med. 235, 240 (2017).

Anne M. Riederer, Acute Poisonings from Synthetic Cannabinoids—50 U.S. Toxicology Investigators Consortium Registry Sites, 2010–2015, 65 Morbidity & Mortality Wkly. Rep. 692, 692 (2016).

See Kevin T. Brown, Note, A Problem of Design: Proposed Changes to Controlled Substance Analogue Statutes—Modifying Tennessee’s Approach, 45 U. Mem. L. Rev. 395, 404 (2014).

See Marc Santora, Drug 85 Times as Potent as Marijuana Caused a “Zombielike” State in Brooklyn, N.Y. Times (Dec. 14, 2016), http://www.nytimes.com/2016/12/14/nyregion/zombielike -state-was-caused-by-synthetic-marijuana.html [http://perma.cc/TB4S-688D].

Rannazzisi Statement, supra note 9, at 6.

For a more in-depth discussion of these effects, see Losoya, supra note 5, at 401-02, which cites, among other examples, a teenager in Kentucky who experienced paralysis after smoking synthetic marijuana and a twenty-two-year-old man who “tortured, killed, and ate his roommate’s dog” while high on the drug.

See, e.g., Moustafa Elsheshtawy et al., Synthetic Marijuana Induced Acute Nonischemic Left Ventricular Dysfunction, Case Rep. Cardiology, 2016, art. 9625758, at 1; Dolkar Sherpa et al., Synthetic Cannabinoids: The Multi-Organ Failure and Metabolic Derangements Associated with Getting High, J. Community Hosp. Internal Med. Persp., Sept. 2015, art. 27540, at 1, 4.

Rannazzisi Statement, supra note 9, at 5.

Synthetic marijuana sells for around $50 per ounce in bulk or around $10 for a small packet. Leon Neyfakh, What Is the Deal with Synthetic Marijuana?, Slate (July 15, 2016, 12:35 PM), http://www.slate.com/articles/news_and_politics/crime/2016/02/synthetic_marijuana_is _a_weird_and_confusing_drug_here_s_what_you_need_to.html [http://perma.cc/GYZ7 -MGJ2]. Natural marijuana, by contrast, usually sells for between $250 and $300 per ounce in Colorado. See Julie Verhage, This Survey Says that Marijuana Prices Are Crashing in Colorado, Bloomberg (June 22, 2015, 8:13 AM EDT), http://www.bloomberg.com/news‌/articles/2015-06-22/this-survey-says-that-marijuana-prices-are-crashing-in-colorado [http://perma.cc/G2NA-XSS2]; see also Eliza Gray, The Drug Threat in Plain Sight, Time, Apr. 21, 2014, at 24, 31 (quoting a Colorado state representative as suggesting that natural marijuana costs $300 to $500 an ounce).

In criminal enforcement regimes, drugs are regulated through a process known as “scheduling,” in which the Drug Enforcement Administration (DEA) will prohibit a drug or class of drugs based on its dangerousness and potential for abuse. This process, however, depends upon the ability to identify a drug by its chemical composition. See Drug Schedules, U.S. Drug Enforcement Admin., http://www.dea.gov/druginfo/ds.shtml [http://perma.cc/6N7M -2RGJ].

Olga Khazan, Synthetic Drugs Are Multiplying Too Fast for Regulators To Outlaw Them, Atlantic (June 27, 2013), http://www.theatlantic.com/international/archive/2013/06/synthetic -drugs-are-multiplying-too-fast-for-regulators-to-outlaw-them/277321 [http://perma.cc‌/7RJV‌-RY86].

See, e.g., id.; Neyfakh, supra note 19.

Rannazzisi Statement, supra note 9, at 25-26 (“[T]hese chemicals can be easily synthesized to stay one step ahead of control.”); see also Riederer, supra note 12, at 692 (“[E]nforcement is hampered by the continual introduction of new chemical compounds.”).

See Kathleen S. Morris, San Francisco and the Rising Culture of Engagement in Local Public Law Offices, in Why the Local Matters: Federalism, Localism, and Public Interest Advocacy 51, 60 (Kathleen Claussen et al. eds., 2008).

See generally 7 & 11 Stuart M. Speiser et al., The American Law of Torts §§ 20.A, 34 (1983) (surveying the law of public nuisance and unfair competition claims).

See, e.g., Criminal Justice Fact Sheet, NAACP, http://www.naacp.org/criminal-justice-fact -sheet [http://perma.cc/5S38-G89G] (noting that “African Americans and whites use drugs at similar rates, but the imprisonment rate of African Americans for drug charges is almost 6 times that of whites” and that “African Americans represent 12.5% of illicit drug users, but 29% of those arrested for drug offenses and 33% of those incarcerated in state facilities for drug offenses”). See generally Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010) (recounting how the criminal justice system, and the war on drugs in particular, has led to racialized mass incarceration).

See, e.g., Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.U. L. Rev. 457 (2010); Roadblocks to Reentry, Legal Action Ctr. (2004), http://lac.org/roadblocks-to-reentry/upload/lacreport/LAC_PrintReport.pdf [http://perma.cc/H8GA-66TP]; see also Alexander, supra note 26, at 137-72 (discussing how collateral consequences burden offenders’ reintegration into society).

See Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 Yale L.J. 1795, 1805-06 (1992); Kenneth W. Simons, The Crime/Tort Distinction: Legal Doctrine and Normative Perspectives, 17 Widener L.J. 719, 720 (2008).

See Mann, supra note 28, at 1863.

See Restatement (Third) of Torts: Prods. Liab. § 2 cmt. b (Am. Law Inst. 1998) [hereinafter Restatement].

This Comment focuses on expanding liability for sellers, rather than manufacturers, of synthetic marijuana because manufacturers are often unknown or difficult to locate, and frequently based outside of the United States. By contrast, stores that sell synthetic marijuana directly to consumers can be identified with relative ease. For similar reasons, claims against online retailers—who are likely to be similarly evasive—are left aside in favor of a focus on brick-and-mortar stores that lawmakers and enforcers can recognize within their own communities. See Rannazzisi Statement, supra note 9, at 11 (“The ease with which foreign chemists can develop and manufacture designer drugs in clandestine laboratories located outside of the United States[] creates challenges for the administrative scheduling option when dealing with large-scale manufacturing and distribution of designer drugs.”).

Synthetic Drug Abuse Prevention Act of 2012, Pub. L. No. 112-144, § 1152, 126 Stat. 993, 1130-32.

Rannazzisi Statement, supra note 9, at 9.

See Synthetic Cannabinoids Banned by Statute or Regulation Through 2013, Nat’l Alliance for Model St. Drug Laws, http://www.namsdl.org/library/3764BBF9-1372-636C-DD1C21883 EFF8A94 [http://perma.cc/S339-869H]; accord Emerging Drug Threats: Synthetic Drug, Nat’l Conf. of St. Legislatures (Nov. 28, 2012) [hereinafter Emerging Drug Threats], http://www.ncsl.org/issues-research/justice/synthetic-drug-threats.aspx [http://perma.cc /4GRH-7JVJ].

See City Ordinances—Synthetic Substances, Nat’l Alliance for Model St. Drug Laws (Oct. 18, 2013), http://www.namsdl.org/library/C8B389DC-19B9-E1C5-31DBE858808DEB7A [http://perma.cc/HZB9-NV7L].

See Losoya, supra note 5, at 410-15.

See, e.g., Rannazzisi Statement, supra note 9, at 11 (“DEA has identified over 75 additional synthetic cannabinoids that are not controlled but are currently appearing in the domestic marketplace . . . or discussed on the Internet. The ease with which foreign chemists can develop and manufacture designer drugs . . . creates challenges for the administrative scheduling option . . . .”); Sara Lykken, We Really Need To Talk: Adapting FDA Processes to Rapid Change, 68 Food & Drug L.J. 357, 384-86 (2013); Timothy P. Stackhouse, Note, Regulators in Wackyland: Capturing the Last of the Designer Drugs, 54 Ariz. L. Rev. 1105, 1110 (2012) (“The traditional approach of individually listing drugs as they become a problem is too slow, and there are too many new compounds to replace them as soon as they are banned. Analogue acts, which require an easily exploited intent requirement to be valid, suffer from vagueness and overbreadth.”).

21 U.S.C. § 813 (2012).

Because the Analogue Act treats analogues as controlled substances insofar as they are intended for human consumption, see id., the labels on packets of synthetic marijuana proclaim that the packet’s contents are “not for human consumption” in an effort to circumvent the Act.

Hari Sathappan, The Federal Controlled Substances Analogue Act: An Antiquated Solution Meets an Evolving Problem, Ohio St. J. Crim. L.: Amici Blog, http://moritzlaw.osu.edu/students /groups/osjcl/amici-blog/the-federal-controlled-substances-analogue-act-an-antiquated -solution-meets-an-evolving-problem [http://perma.cc/672S-M4XG].

Brown, supra note 13, at 399; see also Kelly Puente, Family of Teen Who Died Smoking Synthetic Pot Files Lawsuit Against Santa Ana Smoke Shop, Orange County Reg. (Jan. 21, 2015, 4:10 PM), http://www.ocregister.com/2015/01/21/family-of-teen-who-died-smoking-synthetic -pot-files-lawsuit-against-santa-ana-smoke-shop [http://perma.cc/S5JE-ZWKS] (describing how a California teen was killed by a version of synthetic marijuana that was a derivative of another version that had already been banned).

See, e.g., United States v. Makkar, 187 F. Supp. 3d 1301, 1313 (N.D. Okla. 2016) (finding that the government failed to establish the mens rea necessary to maintain conviction under the Controlled Substance Analogue Enforcement Act); People v. Chatha, 33 N.E.3d 277, 285 (Ill. App. Ct. 2015) (holding that the government did not establish that the defendant who sold synthetic marijuana labeled as potpourri knew he was selling a controlled substance); see also Stackhouse, supra note 37, at 1133-34 (discussing the challenges of proving under an analogue act that a product is intended for human consumption and suggesting alternatives); Gray, supra note 19, at 30 (“[T]he Potter County district attorney[] also blames the legal ambiguity created when these substances are sold openly, labeled as herbal incense or potpourri. . . . ‘Texas law requires that a person intentionally or knowingly deliver an illegal substance . . . . When you step into the storefront, all of that goes away’ . . . .”).

Rannazzisi Statement, supra note 9, at 3. Rannazzisi also notes that targeting synthetic drugs under the chemical approach “requir[ed] the DEA to devote a large amount of its resources to compiling the necessary scientific data and information [and] initiate control actions.” Id. at 20.

Id. at 22.

For examples of scholars proposing solutions in the mold of the household products approach, see Lykken, supra note 37, which suggests adapting FDA communication strategies more quickly to changes in drug production; and Stackhouse, supra note 37, which proposes, among other legislative reforms, a “bona fide use” exception to the Federal Analogue Act that would require distributors and manufacturers of alleged household products, such as bath salts, to demonstrate a product’s fitness for its stated purpose.

See 15 U.S.C. §§ 1451-1460 (2012); see, e.g., People ex rel. Schneiderman v. Jamail, 32 N.Y.S.3d 828, 829 (Sup. Ct. 2016).

N.Y. Gen. Bus. Law § 349 (McKinney 2014).

See, e.g., Jamail, 32 N.Y.S.3d at 829; Press Release, Att’y Gen. Eric T. Schneiderman, A.G. Schneiderman Wins Court Victory in Push To Ban Mislabeled Drugs from Head Shops (Oct. 25, 2012), http://ag.ny.gov/press-release/ag-schneiderman-wins-court-victory-push-ban -mislabeled-drugs-head-shops [http://perma.cc/43TT-ZJVP].

See People v. Moss, No. 20556/12, 2013 WL 6497868, at *8 (N.Y. Sup. Ct. Nov. 6, 2013).

Matthew Speiser, The Synthetic Marijuana Trade Is a Multi-Million Dollar Industry, Bus. Insider (Sept. 5, 2015, 8:30 AM), http://www.businessinsider.com.au/dea-busts-show -lucrativeness-of-synthetics-2015-9 [http://perma.cc/9ZS2-9D27].

N.Y.C., N.Y, Local Law 917-A (Oct. 20, 2015).

Id.

Hous., Tex., Code of Ordinances art. 17, § 28-571 (2017).

See United States v. Makkar, 187 F. Supp. 3d 1301, 1315 (N.D. Okla. 2016); State ex rel. DeWine v. Fred’s Party Ctr., Inc., 2014-Ohio-2358 at ¶ 77 (Ct. App.), 13 N.E.3d 699.

See People v. Chatha, 33 N.E.3d 277, 283 (Ill. App. Ct. 2015).

See Makkar, 187 F. Supp. 3d at 1313.

People v. Gonell, 789 N.Y.S.2d 675, 678 (Crim. Ct. 2005) (“[A] ‘representation’ ‘is not limited to’ an oral or a written representation . . . . [A] seller may ‘represent’ a substance to be a controlled substance by its appearance and/or packaging alone . . . .” (quoting N.Y. Pub. Health Law § 3383(1)(c) (McKinney 2004)).

Fred’s Party Ctr., Inc., 2014-Ohio-2358.

Id. ¶¶ 19, 77.

Makkar, 187 F. Supp. 3d at 1315 (noting, for instance, that a product labeled as incense “was frequently sold with wrapping papers for smoking”); People v. Chatha, 33 N.E.3d 277, 283, 287 (Ill. App. Ct. 2005) (citing a lower court opinion pointing to evidence that a product labeled as potpourri was sold at an inflated price and in a manner suggestive of an illegal drug sale).

Makkar, 187 F. Supp. 3d at 1311; Chatha, 33 N.E.3d at 288.

Makkar, 187 F. Supp. 3d at 1315.

Chatha, 33 N.E.3d at 286.

See Mann, supra note 28, at 1805; Simons, supra note 28, at 722.

Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

See Losoya, supra note 5, at 427-28 (outlining the advantages of local enforcement against synthetic drug retailers).

Morris, supra note 24, at 60.

See, e.g., Thomas Kerr et al., The Public Health and Social Impacts of Drug Market Enforcement: A Review of the Evidence, 16 Int’l. J. Drug Pol’y 210, 210 (2005) (finding with respect to punitive policies to curb illicit drug use that “a growing body of research indicates that these approaches have substantial potential to produce harmful health and social impacts”); War on Drugs: Report of the Global Commission on Drug Policy, Global Commission on Drug Pol’y 2 (June 2011), http://www.globalcommissionondrugs.org/wp-content/uploads/2012/03‌/GCDP‌_WaronDrugs_EN.pdf [http://perma.cc/FG4P-XUM8] (“The global war on drugs has failed.”).

See supra notes 27-28 and accompanying text.

See, e.g., Kerr et al., supra note 68, at 216.

See, e.g., N.Y.C., N.Y, Local Law 917-A § 4(b) (Oct. 20, 2015).

Id. § 4(c) (“Any person or entity that violates subdivision a of this section shall be guilty of a misdemeanor punishable by a fine of not more than $5,000 or imprisonment of up to one year, or both.”); see also City Ordinances—Synthetic Substances, supra note 35 (showing possible terms of imprisonment for up to one year in cities in Alaska, Arkansas, Kentucky, and Mississippi and up to six months in cities in Alaska, California, Idaho, Louisiana, Maryland, Mississippi, and Utah).

Colo. Rev. Stat. Ann. § 6-1-725(2)(a) (West 2015) (classifying sale of synthetic marijuana as a deceptive trade practice); id. § 6-1-112(1)(e) (authorizing civil penalties).

City of Duluth v. 120 E. Superior St., No. A13-0027, 2013 WL 5022523, at *1-2 (Minn. Ct. App. Sept. 16, 2013).

United States v. Elder, No. 4:15CR3091, 2017 WL 499917, at *2 (D. Neb. Feb. 7, 2017).

Cf. Jean Macchiaroli Eggen, The Synergy of Toxic Tort Law and Public Health: Lessons from a Century of Cigarettes, 41 Conn. L. Rev. 561, 564 (2008) (describing the public health goals of toxic tort litigation).

See supra Section I.C.

See generally City Ordinances—Synthetic Substances, supra note 35 (compiling city ordinances regulating synthetic substances).

Hous., Tex., Code of Ordinances art. XVII, § 28-571 (2017).

N.Y.C., N.Y, Admin. Code tit. 10, § 203(4)(g) (2017).

Charlotte County, Fla., Code of Laws and Ordinances pt. II, ch. 2-5, art. VII, § 2-5-153(b) (2017).

Bos., Mass., Mun. Code ch. 16, § 59.2 (2017) (“Synthetic cannabinoids shall mean any chemical compound chemically synthesized and either 1) has been demonstrated to have binding activity at one or more cannabinoid receptors; or 2) is a chemical analogue or isomer of a compound that has been demonstrated to have binding activity at one or more cannabinoid receptors.”).

Chi., Ill., Mun. Code ch. 4-4, § 333 (2017).

Legislation can also ease the evidentiary burden on public attorneys insofar as violation of statutes can be prima facie evidence of civil liability under per se nuisance claims.

Kendallville, Ind., Code of Ordinances ch. 9, § 6(f) (2017).

Portage, Ind., Mun. Code ch. 18, art. IX, § 18-351 (2017).

Levelland, Tex., Code of Ordinances § 4.1204 (2017).

N.Y.C., N.Y, Admin. Code tit. 10, § 203(4)(g) (2017).

See Kathleen S. Morris, Expanding Local Enforcement of State and Federal Consumer Protection Laws, 40 Fordham Urb. L.J. 1903, 1906 (2013) (noting that among the fifty state-level “little” FTC Acts, “only seven permit city and county enforcement, and only eleven permit district attorney enforcement” (citations omitted)).

While local police and numerous federal agencies engage in the criminal investigation and prosecution of sex-trafficking offenses, attorneys general and city attorneys have gone after both online and brick-and-mortar businesses that provide shelter for sex traffickers. One example is the recent litigation against Backpage.com, alleging that the website’s business practices enabled traffickers to advertise their victims. See Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12 (1st Cir. 2016), cert. denied, 137 S. Ct. 622 (2017).

Similarly, while gambling is often dealt with through criminal regimes, municipal code enforcement has proven useful in shutting down physical gambling venues. See, e.g., Illegal Gambling Café To Close, as Gambling Software Company Ends Business Statewide, City Att’y S.F. (Jan. 30, 2014), http://www.sfcityattorney.org/2014/01/30/illegal-gambling-cafe-to -close‌‌‌‌-as-gambling-software-company-ends-business-statewide [http://perma.cc/M3Z7-MQFM].

See City Ordinances—Synthetic Substances, supra note 35.

See Eric Helland & Jonathan Klick, The Tradeoffs Between Regulation and Litigation: Evidence from Insurance Class Actions, 1 J. Tort L. 2 (2007); Patrick W. Schmitz, On the Joint Use of Liability and Safety Regulation, 20 Int’l Rev. L. & Econ. 371 (2000); Steven Shavell, Liability for Harm Versus Regulation of Safety, 13 J. Legal Stud. 357 (1984).

Restatement, supra note 30, § 2 cmt. d (“[T]he standard for judging the defectiveness of product designs . . . is whether a reasonable alternative design would, at reasonable cost, have reduced the foreseeable risks of harm posed by the product and, if so, whether the omission of the alternative design . . . rendered the product not reasonably safe.”).

Kelley v. R.G. Indus., Inc., 497 A.2d 1143, 1156 (Md. 1985); see also Restatement, supra note 30, § 2 cmt. d (discussing design defects more generally).

See Bifolck v. Philip Morris, Inc., 152 A.3d 1183, 1194 (Conn. 2016) (“Few products will have such a marginal utility and such a high degree of risk . . . that will satisfy the manifestly unreasonable standard.”); Restatement, supra note 30, § 2 cmt. b (“This Restatement recognizes the possibility that product sellers may be subject to liability even absent a reasonable alternative design when the product design is manifestly unreasonable.”).

See, e.g., Karavitis v. Makita U.S.A., Inc., 243 F. Supp. 3d 235, 252, 255 (D. Conn. 2017) (finding that a product used in construction did not fit MUD criteria because, far from having no social value, “the Circular Saw’s utility appears substantial”), appeal docketed, No. 17-1008 (2d Cir. Apr. 7, 2017); Junk v. Terminix Int’l. Co., No. 4:05-CV-0608-JAJ, 2008 WL 5191865, at *4 (S.D. Iowa Nov. 3, 2008) (declining to find MUD liability against pesticide manufacturer, citing evidence of product’s utility and widespread use), aff’d, 628 F.3d 439 (8th Cir. 2010); Parish v. Icon Health & Fitness, Inc., 719 N.W.2d 540, 545 (Iowa 2006) (finding no MUD liability for trampoline manufacturer because the product’s social utility exceeded its harms).

See Restatement, supra note 30, § 2 cmt. e (stating that in a MUD case, “[t]he court would declare the product design to be defective and not reasonably safe because the extremely high degree of danger posed by its use or consumption so substantially outweighs its negligible social utility that no rational, reasonable person, fully aware of the relevant facts, would choose to use, or to allow children to use, the product”).

See Bifolck, 152 A.3d at 1203 (recognizing a MUD classification for products for which “the risk of harm so clearly exceeds the product’s utility that a reasonable consumer, informed of those risks and utility, would not purchase the product. The factors that a jury may consider include, but are not limited to, the magnitude and probability of the risk of harm, the instructions and warnings accompanying the product, the utility of the product in relation to the range of consumer choices among products, and the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing”).

S. 2805, 1987 Gen. Assemb. 3, 5 (N.J. 1987).

Kelley v. R.G. Indus., Inc., 497 A.2d 1143, 1158 (Md. 1985).

Restatement, supra note 30, § 2 cmt. (e).

See Synthetic Drug Abuse Prevention Act of 2012, Pub. L. No. 112-144, 126 Stat. 993; City Ordinances—Synthetic Substances, supra note 35; Emerging Drug Threats, supra note 34.

497 A.2d at 1143Although the court did not refer to the MUD classification by name, the court opined on why the product was unreasonably dangerous, and the case is nonetheless considered a canonical example of MUD analysis. See, e.g., Douglas A. Kysar, The Expectations of Consumers, 103 Colum. L. Rev. 1700, 1721-22 (2003).

Kelley, 497 A.2d at 1145.

Id. at 1153 (“There is, however, a limited category of handguns which clearly is not sanctioned as a matter of public policy.”).

See, e.g., Richard C. Ausness, “Danger Is My Business”: The Right To Manufacture Unsafe Products, 67 Ark. L. Rev. 827 (2014).

Id. at 847 (citing Rainbow v. Albert Elia Bldg. Co., 436 N.Y.S.2d 480 (App. Div. 1981), aff’d, 434 N.E.2d 1345 (N.Y. 1982)).

Michael J. Toke, Note, Categorical Liability for Manifestly Unreasonable Designs: Why the Comment d Caveat Should Be Removed from the Restatement (Third), 81 Cornell L. Rev. 1181, 1184, 1208 (1996); see also Richard C. Ausness, Product Category Liability: A Critical Analysis, 24 N. Ky. L. Rev. 423 (1997) (arguing against categorical liability for products whose risks outweigh their benefits).

Ausness, supra note 107, at 869.

Toke, supra note 109, at 1213 (citing Baughn v. Honda Motor Co., 727 P.2d 655, 658 (Wash. 1986)).

Contra Ausness, supra note 109, at 428.

Toke, supra note 109, at 1203.

Ausness, supra note 109, at 448.

See Ellen Wertheimer, The Smoke Gets in Their Eyes: Product Category Liability and Alternative Feasible Designs in the Third Restatement, 61 Tenn. L. Rev. 1429, 1453-54 (1994).

See, e.g., Family Sues Alleged Synthetic Drugmaker, CBS 46 (Aug. 31, 2012, 10:54 AM), http://www.cbs46.com/story/19433077/family-sues-alleged-synthetic-drug-maker [http:// perma.cc/QJ5D-3HZD]; Puente, supra note 41.

See Jim McBride, Killer K2: Mother Sues Smoke Shop over Son’s Death, Amarillo Globe-News (July 19, 2016, 11:38 AM), http://amarillo.com/news/2013-10-01/mother-sues-local -smoke-shop-over-sons-k2-related-death [http://perma.cc/BD9M-X455].

See supra notes 68-69 and accompanying text.

See, e.g., Elsheshtawy et al., supra note 17; Sherpa et al., supra note 17.

To the extent that such a regime is needed, it can likely be provided by public nuisance.

See Shavell, supra note 93, at 359-60 (noting that differences in knowledge about risk are a factor in deciding between regulation and liability; if experts are better informed, regulation is better; and that although private parties might generally be assumed to have better knowledge, this is not the case where “information about risk will not be an obvious by-product of engaging in risky activities”).

See Helland & Klick, supra note 93, at 3-4 (finding that liability regimes are at a disadvantage relative to regulatory regimes when there is a stronger likelihood that private litigants will not pursue claims when they are harmed).

See supra Section II.A.

See Kyle Graham, Of Frightened Horses and Autonomous Vehicles: Tort Law and Its Assimilation of Innovations, 52 Santa Clara L. Rev. 1241, 1242, 1248-52 (2012) (noting that novel tort claims in court may not address the full range of or most salient risks of a new product and may produce suboptimal rules with “surprising persistence”).

Yale Law School, J.D. 2017. I am grateful to Hillary Aidun, Tony Binder, Kate Huddleston, Elizabeth Leiserson, and Kirby Smith for their feedback and insights, and to Professor Douglas Kysar for his guidance and support. Many thanks to Joaquin Gonzalez and the Yale Law Journal staff for their thoughtful editing.