Safety Act could protect companies from a lawsuit

Sunday, February 1, 2004

WASHINGTON - A little-known law called the Safety Act that can protect manufacturers and systems integrators of homeland security products from potential lawsuits is just now getting underway.

The Department of Homeland Security has begun accepting applications from manufacturers and systems integrators who want protection under what is considered landmark legislation. Approved as part of the Homeland Security Act in November of 2002, the Safety Act, or Support Anti-Terrorism by Fostering Effective Technology, can protect a company from future litigation should their product or service fail to stop a criminal or terrorist.

It can also provide litigation protection for the customer who deploys a product or service with the Safety Act stamp of approval. But to earn that designation, a company’s product or service must first pass a stringent list of criteria set forth by the DHS.

The legislation was authored by the Washington law firm of McKenna, Long & Aldridge after a number of government defense contractors expressed concerns about liability issues.

“Their major concerns to selling any of that into the marketplace was product liability exposure,” said Ray Biagini, a partner at McKenna, Long & Aldridge. “They came to us asking for help to mitigate risk and exposure to torte groups.”

What Biagini came up with was legislation that mirrors the Government Contractor Defense, an approach often taken by government contractors. That defense approach says if a company can prove that its product or service was built pursuant to military specs and drawings and that the military was told of any potential hazards, then a company should not be held liable.

An interim set of regulations are currently in place governing Safety Act status. The DHS expects to approve final regulations in the coming months, but in the meantime, the department is accepting applications for a process that takes several months to complete.

Officials from the DHS could not be reached for comment, but Biagini said a number of companies have already started the application process by applying for Safety Act status. Biagini did not know exactly how many companies have filed applications, but said it was fewer than officials anticipated.

“They’re hearing about it, but I’m still surprised at the number of companies that don’t have it at their fingertips,” said Biagini.

For more information about the Safety Act, visit the Department of Homeland Security’s website at