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ppm of lead in other products, such as candy. Thus, the lipstick contained dangerously high levels of lead that could adversely affect users’ health. The purpose of lipstick, of course, is simply to color or shade the user’s lips in a reasonably safe way. Accordingly, the corporation’s lipstick was unreasonably dangerous for its intended use, meaning the corporation breached the implied warranty of merchantability. [ See Stella v. LVMH Perfumes and Cosmetics USA, Inc. , 564 F.Supp.2d 833 (N.D. Ill. 2008).] Whether the Goods Conform to Government or Industry Standards Whether the goods conform to industry or government standards can be a crucial factor in discerning whether the goods are fit for their ordinary purposes. Indeed, some courts will presume (perhaps rebuttably) that if a good conforms to relevant industry standards, it is merchantable, and if the good does not conform, then it is not merchantable. Other courts simply weigh industry or government standards as one factor (albeit a weighty factor), among others, to consider in evaluating merchantability. [ See 2 Hawkland UCC Series § 2-314:3, Westlaw (database updated June 2021).] Whether the Goods Are Marketable or Usable Of course, a crucial factor in evaluating whether the goods are fit for their ordinary purposes is whether they are marketable or usable. Relatedly, courts often consider whether the goods conform to the parties’ expectations, as evidenced by any relevant communications, course of performance, course of dealing, or usage of trade. In this vein, the goods are not necessarily unmerchantable just because they are unmarketable—that is, just because there are no willing purchasers to whom the buyer can resell the goods. After all, merchantability does not necessarily equate to marketability. On the other hand, if the parties clearly expected that the buyer would resell the goods, and the goods bear some defect rendering them unmarketable, then the goods might be found unmerchantable. [ See Pleasurecraft Marine Engine Co. v. Thermo Power Corp. , 272 F.3d 654 (4th Cir. 2001); MacNeil Automotive Prods. Ltd. v. Cannon Automotive Ltd. , No. 08 CV 0139, 2014 WL 3396114 (N.D. Ill. July 11, 2014); 2 Hawkland UCC Series § 2-314:3, Westlaw (database updated June 2021).] Whether the Goods Are of Average Quality In evaluating whether the goods are fit for their ordinary purposes, some courts consider whether the goods are of average quality. Here again, the implied warranty of merchantability does not necessarily demand goods of the highest or premium quality. Rather, the goods need only be of minimum, average quality. Thus, if the goods feature only relatively minor defects, or even if the goods need minor repairs, they may be merchantable if they approximate the “middle belt” of quality. [U.C.C. § 2-314, cmt. 7 (1951); 2 Hawkland UCC Series § 2-314:3, Westlaw (database updated June 2021).]
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