Here’s a brief review of key developments concerning the U.S. Consumer Product Safety Commission (“CPSC”) from the past month or so to help you stay aware of important product safety legislative and regulatory happenings.
Commissioner Elliot Kaye Departs the Commission. In late August, Commissioner (and former Chairman) Elliot Kaye announced his departure from the agency to assume a senior position at Jose Andres’ World Central Kitchen. Kaye, whose term had expired in October 2020, was serving in his “hold-over” year pending the confirmation of a new commissioner. As a result of Kaye’s departure, there are currently two Republicans on the Commission (Dana Baiocco and Peter Feldman) and one Democrat—Acting Chairman Robert Adler. This political dynamic, similar to when the Democrats held a majority of commissioner seats during the Trump Administration, has already caused some partisan maneuvering and angst at the agency (see Vote on FY22 Operations Plan story below). However, this 2-1 split in favor of the Republicans will not last for long. Read on!
President Biden Nominates Three New Democratic Commissioners. If you were busy enjoying the summer months, you might have missed that President Biden nominated three new individuals to serve as commissioners. In July, the President nominated Alexander Hoehn-Saric and Mary Boyle to serve as Chairman and Commissioner, respectively, followed by Richard Trumka Jr. Assuming all are confirmed, the Democrats will regain a 3-2 majority at the agency. Last Wednesday, Hoehn-Saric and Trumka Jr. won the support of the Senate Committee on Commerce, Science, and Transportation, and their nominations will next be considered by the full Senate. Ms. Boyle’s nomination remains pending before the Committee.
CPSC Announces Rare Mandatory Recall. On August 17, the CPSC, after nearly a decade of litigation and other twists and turns, announced a rare mandatory recall of approximately ten million sets of Zen Magnets and Neoball Magnets. In a second rare move, the CPSC issued a press release to accompany the recall warning consumers, in particular parents, about the dangers that the small high-powered magnets can cause children if swallowed. According to the CPSC’s press release, from 2009 to 2018, there were two deaths in the U.S. and at least an estimated 4,500 magnet-related cases treated in U.S. hospital emergency departments for ingestions of magnets with characteristics of magnet sets (e.g., numerous small, round magnets), most by children 11 months to 16 years old.
Boppy Voluntarily Recalls Three Million Loungers. On September 23, Boppy voluntarily recalled approximately three million loungers in cooperation with the CPSC. According to the press release, “infants can suffocate if they roll, move, or are placed on the lounger in a position that obstructs breathing, or roll off the lounger onto an external surface, such as an adult pillow or soft bedding that obstructs breathing.” Over a six-year period, eight infants were reported to have suffocated after being placed on their back, side, or stomach on the lounger.
In response to the recall, CPSC’s Acting Chairman Robert Adler stated, in part,
“[l]oungers and pillow-like products are not safe for infant sleep, due to the risk of suffocation. Since we know that infants sleep so much of the time – even in products not intended for sleep – and since suffocation can happen so quickly, these Boppy lounger products are simply too risky to remain on the market.”
Given the popularity of these children’s products, it will be interesting to see how consumers and the market react. This recall, in particular, raises many issues that product safety professionals, practitioners and regulators grapple with regularly including, among other issues, unintended use and foreseeable misuse as well as the role of warnings, instructions, parental oversight of children and consumer responsibility. Additionally, if certain Boppy loungers are unsafe for infants because of the risk that infants will fall asleep during use, what other products are unsafe for the same reason? Watching how this recall impacts other pending durable infant products rules is important as well.
Vote on FY22 Operations Plan. The CPSC has adopted the Agency’s FY22 Operating Plan, as amended, by a 2-1 vote—with the two Republican Commissioners voting in favor, and Acting Chairman Adler voting against the plan. The three commissioners issued statements regarding the apparently controversial vote. The statements can be found (Adler) here and (Baiocco / Feldman) here.