In ordinary times, companies facing a product safety recall have numerous issues to navigate. These issues include deciding upon a remedy, mastering reverse logistics, and managing public relations.  But today, as the country deals with COVID-19, new issues have emerged for companies facing recalls—interruptions in the supply chain precluding the obtainment of replacement product, retailers working around the clock to save their businesses, office building, call center and retail store closures, and consumers who are focused on keeping their families safe from this deadly virus rather than potentially defective products.  As all of these issues converge, many companies are wondering how the U.S. Consumer Product Safety Commission (CPSC) will respond to and handle forthcoming recall announcements.

Earlier this week, the CPSC provided some initial clues as to how it will handle recalls.  In guidance entitled “CPSC Recall Remedy Notice Due to COVID-19,” the agency states that:

“[d]ue to extraordinary circumstances surrounding COVID-19, some of the remedies identified in recall press releases may not be available at this time. Consumers should check with recalling firms for further details.  It is important to remember that CPSC and recalling firms urge consumers not to use recalled products.”

While companies are ordinarily required by the Commission to be in a position to offer consumers a remedy for a recalled product upon announcement, in these uncertain times, the agency appears to be providing some leeway to firms who are unable to execute immediately on their offered remedy.  To date, the agency has shown flexibility and cooperation given the business challenges regulated parties face given state emergency orders and mandatory quarantines.  This is undoubtedly rooted in practicality and the precarious situation in which much of industry finds itself.  However, other issues remain unaddressed that are sure to arise if they have not already.  For example, will the Commission require the recalling firm to re-announce the recall when the remedy is available?  Or, will delaying the recall remedy anger consumers and lead to business complaints, negative social media campaigns, and even lawsuits?

Firms are already dealing with other important issues that impact recall execution and effectiveness, such as what to do if they are unable to staff a phone line to receive incoming consumer calls because of office closures; what to do if key personnel working from home need to access office supplies to effectuate the recall; how to handle retailers who are preoccupied with keeping their businesses afloat; and how to reach consumers who are, quite frankly, not paying attention as they focus on staying healthy.

It is yet to be seen how the Commission plans to handle forthcoming recalls that involve some of these issues beyond the timing of a remedy. Will the agency be amenable to delaying recall announcements that do not involve the most serious potential injuries until some of these COVID-19-related issues are resolved?  The answer is likely yes, although the CPSC has already made clear that they may require firms to make a public safety announcement that warns consumers not to use the recalled product in the interim.

As firms prepare to announce a recall, they should keep the following things in mind:

  • The health and safety of your employees, colleagues and business partners, comes first. Many product recalls involve very low incident rates and risk much less severe than what epidemiologists are tracking with COVID-19.  In most, if not all, cases, COVID-19 is a much bigger immediate threat to public health and safety than a delay in recalling products;
  • Communication with the CPSC is always key—inform the CPSC frequently about supply chain and workforce issues and timing changes;
  • Use technology, including email, voicemail messages, video, and apps, to keep consumers informed of your effort to fulfill the recall and the status of their remedy; and
  • Document destruction of recalled products with photos and not just certificates of destruction if CPSC field staff is unable to travel and witness product destructions.

It is important in these uncertain times that practitioners, industry, the CPSC, and other product safety stakeholders, communicate effectively about these and other issues of importance to our community.  We hope our clients, readers and friends remain safe.