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Predatory pricing is a commercial pricing strategy which involves the use of large scale undercutting to eliminate competition. This is where an industry dominant firm with sizable market power will deliberately reduce the prices of a product or service to loss-making levels to attract all consumers and create a monopoly. [1]
Strict liability thus requires manufacturers to evaluate the full costs of their products. In this way, strict liability provides a mechanism for ensuring that a product's absolute good outweighs its absolute harm. [68] Between two parties who are not negligent (manufacturer and consumer), one will necessarily shoulder the costs of product defects.
The Third Restatement of the Law, Torts: Products Liability §2(b) [1] favors the risk-utility test over the Second Restatement of the Law, Torts §402(a), which favored the consumer expectations test. §2(b) states, in part, "A product is defective when, at the time of sale or distribution...is defective in design. A product is defective in ...
A company with large market share and the ability to temporarily sacrifice selling a product or service at below average cost can drive competitors out of the market, [4] after which the company would be free to raise prices for a greater profit. For example, many developing countries have accused China of dumping.
Even if the design is correct, the product may have a manufacturing defect if it was incorrectly manufactured, for example if the wrong materials are used. A product may also be considered legally defective if it lacks appropriate instructions for its use, or appropriate warnings of dangers accompanying normal use or misuse of the product. [1]
In legal disputes regarding product liability, a consumer-expectations test is used to determine whether the product is negligently manufactured or whether a warning on the product is defective. Under this test , the product is considered defective if a reasonable consumer would find it defective.
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In 1982 the U.S. Department of Justice Merger Guidelines introduced the SSNIP test as a new method for defining markets and for measuring market power directly. In the EU it was used for the first time in the Nestlé/Perrier case in 1992 and has been officially recognized by the European Commission in its "Commission's Notice for the Definition of the Relevant Market" in 1997.