What’s on Your Website? Important Information to Consider

Paul Gary
May 23, 2014
COLUMN : Legal | Operations

Editor’s note: This article is the second in a two-part series. Part one appeared in the March/April 2014 issue on Page 26.

In the March/April issue, I emphasized the importance of using websites to provide information to consumers regarding your company’s products as a means to help protect itself against potential legal action. While there is no promise that an individual judge will charge a given consumer with knowledge of a company’s website content, it seems clear that the law’s recognition of the effort to communicate with consumers via the web already exists and will only grow. Indeed, indications from the EPA via Energy Star and the FTC support the use of a company website as an effective tool for enforceable communication.
So, what should you consider putting on your website in this context? Here’s some food for thought:
1) The basics: product specifications, installation instructions and warranty
Windows, doors and skylights generally have, and need, standard performance specifications derived from industry-accepted tests. Anyone buying fenestration products needs to know the performance specification requirements for their application. Also, instructions for installation and post-sale warranty commitments are fundamental to the sale transaction. The manufacturer and seller should have this product data readily available to the end user. I remain in favor of printed materials covering these topics with verifiable practices regarding their distribution, but in a manufacturer-distributor builder channel it can be difficult to establish communication with the end user. The company website is your backstop in that regard, especially when product-related print materials make appropriate reference to it.
2) Care and maintenance
Products require maintenance, and fenestration products are no exception. At times, however, it seems consumers are surprised by this basic idea. Drainage systems should be kept free of obstruction; movable parts subject to friction should be periodically checked; and damage to a product must be remediated. Cleaning windows, doors and skylights should be done with appropriate methods and materials. The consequences of failing to do so should be explained on the company website with reference provided in written materials.
3) Window safety
The presence of a window in a building envelope doesn’t eliminate fall risks, because the product itself can be opened and is limited in the amount of force it can withstand. Basic stuff, I agree, but the potential for heartbreaking injuries due to window falls makes it prudent to warn consumers of fall risks.
4) Tolerances
Each component and fabrication process—mechanical or human—has a tolerance or accepted range of deviation. In a manufacturing context, the ability to track the specific point at which each of these components or processes lies within that range is not practically achievable. This might not be apparent to the end user. Consider addressing the misconception that “perfect every time” is an actionable standard.
5) Field testing
Fenestration products can be “tested” in the field at a mock-up installation during early construction and in postoccupancy forensic situations. In the residential context, this is often done with limited or no warning to—let alone agreement by—the manufacturer or seller. Testing in this context involves variables not only with regard to product handling/installation by others and varying environmental conditions, but also with respect to calibration of test equipment, selection of test criteria and interpretation of results. Notwithstanding this, if a drop of water passes the innermost plane, the manufacturer or seller might find itself having to establish and defend a position with regard to its response. Given the nature of the markets in which your company sells, you might consider establishing a position with regard to the company’s response to field testing and communication of it via the company website.
6) Frequently Asked Questions
The FAQ page is a tool your company can use to state its position in regard to recurrent questions in your market. Questions regarding the presence of condensation or minor flaws in the glass have been traditionally treated here, but the palette is yours.
There are many more examples to think about, and I am not suggesting that it is “illegal” to leave out any of the above on your website. However, it might be in your best interest to develop a plan.

Paul Gary is the principal of The Gary Law Group, a law firm based in Portland, Ore., emphasizing legal issues facing manufacturers of windows and doors. Write him at paul@prgarylaw.com.