§ 148.002.Products Liability Actions Related to Pandemic Emergency

A products liability shield for six categories of pandemic-related product.

Subsection (a) lists what is covered: protective clothing or equipment; medical devices, equipment and supplies used during the emergency, including those used or modified for an unapproved use; drugs, medicines or vaccines, including those prescribed, dispensed or administered for an unapproved use; tests to diagnose or determine immunity; commercial cleaning, sanitizing or disinfecting supplies; and any component of those products.

The repeated reference to unapproved and off-label use is deliberate. During an emergency, products get used in ways they were never designed or approved for, and ordinary products liability would treat that as the paradigm of a defect claim.

Subsection (b) is the shield, and it requires the claimant to establish both of two things. First, that the person had actual knowledge of a defect when the product left their control, or acted with actual malice. Second, that the product presents an unreasonable risk of substantial harm.

"Actual knowledge" and "actual malice" together displace the whole of ordinary products law — strict liability, design defect, manufacturing defect. Negligence is not enough; the defendant must have known or acted maliciously.

Subsection (c) covers failure to warn separately, and sets an even higher bar: actual malice only, with no actual-knowledge alternative, plus the same unreasonable risk requirement.

Subsection (d) protects the downstream user — a person who selects, distributes, or uses the product — on the same actual knowledge or actual malice standard. That reaches hospitals, employers and schools that supplied protective equipment to others.

Donors are named alongside sellers throughout, which matters because much of what moved during the emergency was donated.