There have been recent calls for Congress to re-visit H.R. 2211, the “Stop Tip-overs of Un-stable, Risky Dressers on Youth Act” also known as the “STURDY Act.” Sponsored by Janice Schakowsky (Dem-IL 9th District), the bill was introduced in Congress last session and passed by the House on September 17, 2019 but never passed by the Senate. It would require the U.S. Consumer Product Safety Commission (“CPSC”) to promulgate a consumer product safety rule for free-standing clothing storage units to protect children from tip-over related death or injury.

As we indicated in our May 2020 analysis of dresser tip-overs, tip-overs have been a main focus for the CPSC and consumer advocacy groups in recent years. A CPSC report indicates that 571 people died from furniture tip-overs between 2000 and 2019, and 82% of those were children (ages ranged from 1 month to 14 years). A survey conducted by the CPSC showed that 41% of respondents did not anchor furniture in their homes.

Currently, there is no mandatory standard requiring manufacturers to test furniture to specific stability and safety standards. The current voluntary standard, ASTM F2057 – 19, is recognized by industry and the CPSC as required best practice in order to prevent tip-overs from dressers and other clothing storage units. Continue Reading New Proposed Legislation to Prevent Furniture Tip-Over

Recalls in Review: A monthly spotlight on trending regulatory enforcement issues at the CPSC.

The CPSC has been very clear that protecting children from dresser tip over is a top priority.  The Commission actively monitors and tests furniture for compliance with stability standards, and frequently recalls products that present a tip over hazard.  As of today, the CPSC has recalled at least thirty dressers since 1996, and five already in 2020 alone.

 

A review of the recalls shows that the majority (61%) were conducted despite zero reported incidents involving consumers.  Most of those were based on noncompliance with the tipover standard, ASTM 2057.

ASTM 2057, the standard safety specification for clothing storage units, was revised in 2014, 2017, and most recently in 2019.  Importantly, even if a product is compliant with the current standard at the time of manufacture, it could still be recalled for noncompliance with a future revised version.  This has been the case in at least 2 recalls: here and here.

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About Recalls in Review: As with all things, but particularly in retail, it is important to keep your finger on the pulse of what’s trending with consumers. Regulatory enforcement is no different – it can also be subject to pop culture trends and social media fervor. And this makes sense, as sales increase for a “trending” product, the likelihood of discovering a product defect or common consumer misuse also increases. Regulators focus on popular products when monitoring the marketplace for safety issues.

As product safety lawyers, we follow the products that are likely targets for regulatory attention. Through Recalls in Review, we share our observations with you.

Our clients often ask us what happens after a recall has been completed and what to expect from a visit from a regional CPSC inspector. We advise to be prepared to demonstrate what actions were taken regarding the Corrective Action Plan (CAP). The main purpose of the inspection appears to be to provide confirmation that CAP tasks (such as distribution of retailer letters and posters) are underway and/or have been completed.

The Commission staff will check that notice of the recall is available on the company website and often go to retail establishments to look for posters.  The documents that an inspector may request at an on-site inspection include:

  1. Copies of all notifications to consumers and any other documents sent out regarding the recall;
  2. Copies or other demonstration that agreed social media was posted;
  3. If the company agreed to monitor wholesale/auction websites, records to show that such a process has been established;
  4. Records to demonstrate what the total number of units in the recall population, what inventory exists or what was done with any units under the company’s control at the start of the CAP;
  5. Incident records to confirm the total number of incidents, whether there have been new incidents discovered post-recall, and when the company first learned of incidents that gave rise to the CPSC filing.

Collecting and organizing these documents from the start can make the CPSC post-recall inspection much less time-consuming.  And the inspection can provide an opportunity to resolve any problems that may have arisen in recall execution. Much of the information requested is necessary for completion of CPSC monthly status reports and can make that process work smoothly as well.

The choices facing American consumers are no longer just “paper or plastic” or “do you want fries with that?” Today, when strolling the aisles of a grocery store, customers have the option to buy local, organic, gluten-free, low-carb, or any other of a dozen choices. The local coffee shop offers a selection of responsibly-sourced coffees, shade grown coffees, and beans from Ethiopia, Yemen, or Guatemala. What savvy companies and marketers have realized is that American consumers like choice and they like to feel good about the products they buy.

And global trends— like safety concerns about foreign-made products, interest in supporting a flagging U.S. economy, or just plain patriotism—may encourage consumers to change their buying patterns—in favor of American goods. Smart manufacturers and marketers understand this and know that customers may be willing to pay a premium for American quality goods. And so, unsurprisingly, smart companies are doing what they can to make and market products as “Made in America.”

Continue Reading “Made in America” Claims: the Landscape, FTC Guidance, and Tips for Manufacturers and Marketers

The Transatlantic Trade and Investment Partnership (TTIP) negotiations formally commenced on July 8, 2013. A little over a year later, the negotiators have held six rounds of negotiations. The most recent round of negotiations was held during the week of July 14-18 in Brussels, and the seventh round is now expected for D.C. in late September.

During July’s discussions, the two sides covered the full range of “market access” issues, including trade in goods, trade in services, investment, and government procurement. Negotiations included greater regulatory cooperation, widely considered to be the greatest value of the TTIP talks, with modest progress made in regards to several product sectors, including textiles and apparel (where they focused on labeling and safety issues), chemicals (where they discuss broad opportunities for cooperation), and automobiles (where talks advanced in areas like equivalence of technical regulations). Food safety also continued to be an important issue during negotiations, particularly with the leak of the EU’s proposed chapter on Sanitary and Phytosantiary Measures (SPS) prior to the start of the latest round.

Continue Reading Sixth Round of TTIP Negotiations Concludes in Brussels

Key Takeaways

  1. In 2023, the Department of Energy is likely to increase enforcement of its energy and water conservation standards.
  2. The penalties associated with violating energy and water conservation standards can exceed $500 per violation and result in multi-million-dollar penalties.
  3. Manufacturers and importers of appliances and other consumer and industrial products can mitigate enforcement risk by refamiliarizing themselves with the energy and water efficiency regime and conducting internal compliance audits.

As the Biden Administration enters its third year, now with a party split in Congress, it seems likely that the Administration will redouble its focus on executive branch regulatory tools that can be used to achieve energy-related policy objectives, including with respect to energy efficiency and reducing carbon emissions. For manufacturers and importers of appliances and certain other consumer, lighting, plumbing and commercial and industrial products, that means the potential for additional scrutiny of their products’ compliance with the Department of Energy’s (DOE) conservation standards for energy and water efficiency. It also likely means a commensurate increase in DOE enforcement activity for non-compliance with the applicable efficiency standards or the associated test procedures required to demonstrate compliance, as well as registration and labeling requirements. Given the magnitude of the penalties associated with violating efficiency standards, currently $503 per violation, which can quickly run into multiple millions of dollars across noncompliant units, manufacturers and importers should consider refamiliarizing themselves with DOE’s conservation standards regime.

Continue Reading Appliance Manufacturers and Importers Should Prepare for Increased DOE Enforcement Activity in 2023

The second half of 2022 proceeded much like the first, with manufacturers busy navigating recalls and related litigation, although not necessarily in that order.

Philips CPAP/ BiPAP Machines Still Under Fire

Philips is still battling an onslaught of cases stemming from a June 2021 recall of CPAP and BiPAP breathing machines, including a consolidated consumer class action, In re Philips Recalled CPAP, Bi-Level PAP, & Mechanical Ventilator Products Liability Litigation, No. 2:21-mc-01230 (W.D. Pa.), MDL No. 3014, and a medical device supplier suitBaird Respiratory Therapy, Inc. v. Philips, 2:22-cv-00886 (E.D. Pa.). Since early 2021, there have been reports of over 260 deaths and thousands of health problems associated with the degrading polyurethane foam found in these devices, which was used inside millions of CPAP and BiPAP machines for over a decade. Philips claims that it has produced over 3.95 million repair kits and replacement devices to date and continues to research potential health risks to users from its machines. Despite these efforts, its legal troubles will continue into 2023, with even more consumer-facing lawsuits, including Braverman v. Koninklijke Philips N.V., No. 2:22-cv-7927, which was first filed at the end of December 2022 in the U.S. District Court for the Eastern District of New York and is one of the first CPAP/BiPAP suits to allege the inhalation of the toxic foam particles caused mouth and tongue cancer.

Continue Reading Recall Litigation Report: Year in Review (2022)

The FTC kicked off the holiday season analyzing data on fraudulent online shopping, cryptocurrency, and employment advertisements that are popular on social media. The Commission also announced updates to the Eyeglass Rule while also announcing the public comment period for potential updates to the Green Guides. These stories and more after the jump.

Continue Reading FTC Updates (December 5 – December 16, 2022)