Walters v. Seventeen Magazine

Opinion

WALLIN, J.

Lisa Walters sued Seventeen Magazine, Inc. (Seventeen) and its parent company Triangle Communications, Inc., (Triangle) among others, for damages resulting from her use of Playtex tampons. Walters had a subscription to Seventeen in November 1984, and read its advertisements for Playtex tampons. After using one she became violently ill and was hospitalized for toxic shock. Walters alleges the advertisements were placed in the magazine amidst feature articles on puberty, gynecology and menstruation, thereby misleading young readers to believe Seventeen endorsed the tampons. Her complaint alleged negligence, product liability, breach of warranty, conspiracy, fraudulent advertising and associated theories.

Walters further claims that when Seventeen ran the ads it had already been alerted to the dangers of the illness by the removal from commerce of Rely tampons, which contained the same toxic shock-causing ingredient used in the Playtex tampons.

Triangle and Seventeen successfully demurred to Walters’s second amended complaint. The companies argued a publisher does not warrant

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products it advertises, has no duty to investigate them, and cannot be held liable for defective products unless it endorses a product for economic gain and for the purpose of inducing the public to buy it. Seventeen also claims the First Amendment protects commercial speech of the type found here.

Walters appeals from the judgment of dismissal. We find the trial court properly sustained the demurrer, and affirm.

Only one reported California decision has ever held a publisher hable for a product advertised in its magazine, and that case is easily distinguishable. In

Hanberry

v.

Hearst Corp.

(1969) 276 Cal.App.2d 680 [81 Cal.Rptr. 519, 39 A.L.R.3d 173] the plaintiff bought a pair of shoes advertised in Good Housekeeping Magazine as bearing “ ‘Good Housekeeping’s Consumer Guaranty Seal.’” The seal stated: “‘We satisfy ourselves that products advertised in Good Housekeeping are good ones and that the advertising claims made for them in our magazine are truthful.’ ”