Concurring and Dissenting.—In my view the trial court properly granted a new trial and the Court of Appeal, in a thoughtful analysis of the law, correctly affirmed the order. I thus concur in the result.
*1006I must express my apprehension, however, that we are once again retreating from “[t]he pure concepts of products liability so pridefully fashioned and nurtured by this court.” (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 757 [144 Cal.Rptr. 380, 575 P.2d 1162] (dis. opn. by Mosk, J.).)
In Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 [27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049], this court “heroically took the lead in originating the doctrine of products liability.” (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 757 (dis. opn. by Mosk, J.).) We did so in the belief that such liability was essential to ensure that the costs of injuries caused by defective products are borne by the manufacturers that put such products on the market and profit therefrom rather than by the victims of those injuries, who are largely powerless to protect themselves. (Greenman v. Yuba Power Products, Inc., supra, 59 Cal.2d at p. 63.) The basic principle underlying products liability actions is that “the trier of fact must focus on the product, not on the manufacturer's conduct, and that the plaintiif need not prove that the manufacturer acted unreasonably or negligently in order to prevail in such an action.” (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 418 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1].)
This focus, however, has become blurred through the years. As the majority observe, this court has incorporated a number of principles of the law of negligence into strict liability doctrine. (See, e.g., Luque v. McLean (1972) 8 Cal.3d 136, 145 [104 Cal.Rptr. 443, 501 P.2d 1163] [assumption of risk defense]; Daly v. General Motors Corp., supra, 20 Cal.3d 725, 736-737 [comparative negligence]; Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 432 [risk-benefit test]; Brown v. Superior Court (1988) 44 Cal.3d 1049, 1066 [245 Cal.Rptr. 412, 751 P.2d 470] [as a matter of policy, strict liability standards not applicable to prescription drug manufacturers].) Nevertheless, our past acquiescence in this muddled state of aifairs does not justify making matters worse. Misconception compounded cannot result in authenticity.
In no area of strict products liability has the impact of principles of negligence become more pronounced than in failure-to-warn cases. From the inception of the cause of action for strict liability on the theory of failure to warn, courts have impliedly or explicitly held that there can be no liability unless the plaintiff establishes that the defendant knew or should have known of the risk. For example, in Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 53 [46 Cal.Rptr. 552], the court declared that a product may be defective “and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is *1007given.” (Italics added.) In Barth v. B. F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 244 [71 Cal.Rptr. 306], the court held that in cases in which there is evidence that the defendant knew of a danger but failed to warn, “ ‘A manufacturer, as well as a dealer, must give adequate warning to the ultimate users of the product of any dangerous propensity which it knows or should have known would result in the type of accident that occurred.’ ” Finally, in Oakes v. E. I. Du Pont de Nemours (1969) 272 Cal.App.2d 645, 651 [77 Cal.Rptr. 709], the court held that “knowledge, actual or constructive, being a necessary element to the tort liability contended, both pleading and proof of that element were plaintiff’s burden.”
The courts of some of our sister states, too, have permitted the infusion of negligence concepts into failure-to-warn strict liability actions. (See, e.g., Gonzales v. Volvo of America Corp. (7th Cir. 1985) 752 F.2d 295, 300 [language and concepts of reasonableness in strict liability failure-to-warn cases under Indiana law same as those used in negligence cases]; Borel v. Fibreboard Paper Products Corporation (5th Cir. 1973) 493 F.2d 1076, 1088 [same under Texas law]; Bernier v. Raymark Industries, Inc. (Me. 1986) 516 A.2d 534, 538 [reasonableness of defendant’s conduct is a factor]; Feldman v. Lederle Laboratories (1984) 97 N.J. 429 [479 A.2d 374, 385] [same]; Bilotta v. Kelley Co., Inc. (Minn. 1984) 346 N.W.2d 616, 622 [strict liability failure-to-warn claims based on negligence concepts]; and see generally, Henderson & Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn (1990) 65 N.Y.U. L. Rev. 265, 271-273; Prosser & Keeton, The Law of Torts (1988 supp.) § 99, p. 95, fn. 21; Bromberg, The Mischief of the Strict Liability Label in the Law of Warnings (1987) 17 Seton Hall L. Rev. 526, 534-535.)
It may be contended, with arguable merit, that in failure-to-warn cases the line between strict liability and negligence is somewhat thin. The court in Kearl v. Lederle Laboratories (1985) 172 Cal.App.3d 812, 832 [218 Cal.Rptr. 453], disapproved on other grounds in Brown v. Superior Court, supra, 44 Cal. 3d at pages 1068-1069, came to this conclusion: “the characteristic that distinguishes strict liability from negligence is proof of actual or constructive knowledge of risk: In a negligence action we focus on the defendant’s conduct and require plaintiff to show defendant acted unreasonably in light of a known or constructively known risk. In strict liability actions, on the other hand, we focus not on the reasonableness of a defendant’s conduct but on the product, and we either ignore the question of a manufacturer’s actual or constructive knowledge of risk (as in a ‘consumer expectations’ design defect case) or we in effect impute to the manufacturer defendant current scientific knowledge of the risk caused by his product (as in a risk/benefit design defect balancing case). [Citations.] But in all warning cases—even if the plaintiff or the court claims to analyze failure to warn *1008or inadequacy of warning in the context of a strict products liability claim— the tests actually applied condition imposition of liability on the defendant’s having actually or constructively known of the risk that triggers the warning.”
The majority distinguish failure-to-wam strict liability claims from negligence claims on the ground that strict liability is not concerned with a standard of due care or the reasonableness of a manufacturer’s conduct. This is generally accurate. However in practice this is often a distinction without a substantial difference. Under either theory, imposition of liability is conditioned on the defendant’s actual or constructive knowledge of the risk. Recovery will be allowed only if the defendant has such knowledge yet fails to warn.
The majority rely extensively on Brown v. Superior Court, supra, 44 Cal.3d 1049. They obviously fail to comprehend that Brown was based on a narrow public policy exception to strict products liability for prescription drugs, and for such drugs alone. We emphatically declared in Brown (at p. 1063) that “there is an important distinction between prescription drugs and other products,” and we elaborated on the reason for the distinction: “Public policy favors the development and marketing of beneficial new drugs, even though some risks, perhaps serious ones, might accompany their introduction, because drugs can save lives and reduce pain and suffering.” (Ibid.) We added that “the broader public interest in the availability of drugs at an affordable price must be considered in deciding the appropriate standard of liability for injuries resulting from their use.” (Ibid.) The majority stretch the holding and the analysis in Brown beyond all recognition when they rely on that case in litigation involving products other than prescription drugs. They make the narrow exception swallow up fundamental law.
We should consider the possibility of holding that failure-to-warn actions lie solely on a negligence theory. “[Ajlthough mixing negligence and strict liability concepts is often a game of semantics, the game has more than semantic impact—it breeds confusion and inevitably, bad law.” (Henderson & Twerski, Doctrinal Collapse in Products Liability: The Empty Shell of Failure to Warn, supra, 65 N.Y.U. L. Rev. at p. 278.) If, however, the majority are not ready to take that step, I would still use this opportunity to enunciate a bright-line rule to apply in failure-to-warn strict liability actions.
Here plaintiff alleged, among other claims, that defendants marketed their products “with specific prior knowledge” of the high risks of injury and death from their use. If plaintiff can establish at the new trial that *1009defendants had actual knowledge, then state-of-the-art evidence—or what everyone else was doing at the time—would be irrelevant and the trial court could properly exclude it. Actual knowledge may often be difficult to prove, but it is not impossible with adequately probing discovery. Defendants, of course, can produce evidence that they had no such prior actual knowledge.
On the other hand, if plaintiff is only able to show, by medical and scientific data or other means, that defendants should have known of the risks inherent in their products, then contrary medical and scientific data and state-of-the-art evidence would be admissible if offered by defendants.
Thus I would draw a clear distinction in failure-to-warn cases between evidence that the defendants had actual knowledge of the dangers and evidence that the defendants should have known of the dangers.
With the foregoing rule in mind, the parties should proceed to the new trial ordered by the trial court and upheld by the Court of Appeal. Thus I would affirm the judgment of the Court of Appeal.