§ 82.004.Inherently Unsafe Products

A short section with an unusual list, and it codifies a comment to the Restatement.

A manufacturer or seller shall not be liable if: the product is inherently unsafe and is known to be unsafe by the ordinary consumer who consumes it with the ordinary knowledge common to the community; and the product is a common consumer product intended for personal consumption, such as sugar, castor oil, alcohol, tobacco, and butter, as identified in Comment i to Section 402A of the Restatement (Second) of Torts — or an oyster.

Both conditions are required. Inherent unsafety alone is not enough; the danger must be one the ordinary consumer knows about.

The principle is that some products are dangerous in a way that cannot be designed out and that everyone understands. Alcohol harms the liver; tobacco causes disease; butter is fatty. A consumer who knows this and consumes anyway has not been misled by a defect.

The oyster is a Texas addition, made in 2007 and not found in the Restatement comment. Raw oysters carry a naturally occurring bacterial risk that no processing eliminates, and the Legislature placed them alongside the traditional examples.

Subsection (b) is the real limit. For this section, "products liability action" does not include an action based on manufacturing defect or breach of an express warranty.

So the protection covers the product's inherent nature only. Contaminated butter, adulterated alcohol, or an oyster harvested from polluted water is a manufacturing defect claim, and this section does not touch it.