I bought a huge batch of “Jet Black” ink on sale in 2024. Two years later, I was still using it. I didn’t see the FDA recall notice that the batch was contaminated with bacteria. I tattooed five clients. Three got infections. My insurance investigator came in, looked at the bottle, checked the lot number against the recall list, and said, “You used a recalled product. We might not cover this.”
Key Takeaways
- Duty to Monitor: As a professional, you have a legal duty to stay updated on product recalls. Using a recalled product is often considered “Gross Negligence.”
- Gross Negligence Exclusions: Standard malpractice policies cover “Negligence” (mistakes). They often exclude “Gross Negligence” (reckless disregard for safety). Ignoring a public FDA recall can trigger this exclusion.
- Batch Tracking is Mandatory: If you can’t prove which ink you used, the insurer assumes the worst.
- Subrogation Fails: Normally, your insurer would sue the ink manufacturer. But if the manufacturer issued a recall and you kept using it, the manufacturer is off the hook, and you are 100% liable.
The “Why” (The Trap): The “Known Hazard”
Insurance covers fortuitous (accidental/unexpected) events.
Once a recall is issued, the danger is no longer “unexpected.” It is a Known Hazard.
If you continue to use a Known Hazard, you are intentionally exposing clients to harm. Intentional acts are excluded. The insurer will argue that by failing to check your inventory against the recall list, you voided your coverage.
The Investigation: “I Called Them”
I asked underwriters about the “Recalled Ink” scenario.
1. Marine Agency
- Policy: They expect artists to check the FDA recall list.
- Outcome: If the recall was recent (last week), they cover it. If the recall was 6 months ago, they likely deny it as negligence.
2. Ink Manufacturers (Intenze/Eternal)
- System: They send emails to the address on file.
- The Trap: If you bought from a 3rd party (Amazon/Convention), the manufacturer has no way to contact you. You missed the warning.
Comparison Table: Liability for Defective Ink
| Scenario | Manufacturer Liable? | You Liable? | Insurance Covers You? |
| No Recall Issued | Yes | No | Yes (Subrogation) |
| Recall Issued (Recent) | Yes | Maybe | Yes |
| Recall Issued (>30 Days) | No | Yes | No (Gross Negligence) |
| Counterfeit Ink | No | Yes | No (Unauthorized Product) |
Step-by-Step Action Plan
- Subscribe to Alerts: Go to the FDA “Cosmetics Recalls” page and sign up for email alerts.
- Inventory Sweep: Once a quarter, check your ink bottles against the known recall database. Throw away anything expired or recalled.
- Buy Direct: Stop buying ink on Amazon. Amazon commingles inventory, so you might get a fake or recalled bottle even if you buy from a “reputable” seller. Buy direct from the brand.
- Log Lot Numbers: I repeat this in every article because it is the #1 defense. Write the Lot # in the client file.
FAQ
Q: Does ink expire?
A: Yes. Using expired ink is also negligence. Insurance will check the bottle date in a lawsuit.
Q: What if the supplier didn’t tell me?
A: If you bought from a legitimate supplier, you can sue them for failing to notify you. If you bought from a random eBay seller, you’re on your own.
[IMAGE: Screenshot of the FDA Cosmetics Recalls & Alerts dashboard.]