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

The Federal Trade Commission (“FTC”) is distributing more than $6 million to Fashion Nova customers after the popular retailer did not “properly notify [them] or give them the chance to cancel their orders when [it did not] ship merchandise in a timely manner.” On the heels of a settlement entered into between the FTC and the Southern California-based fast fashion company almost a year ago, the government agency revealed that it “is sending refunds to more than 500,000 people,” noting that in addition to failing to ship products within the “fast shipping” time frame it promised, Fashion Nova further ran afoul of federal law when it “did not offer customers the option to cancel [the delayed] orders, and opted to issue gift cards to compensate customers for unshipped merchandise instead of providing refunds.”

In a statement on Thursday, the FTC asserted that it is “providing more than $6.5 million in payments to 518,552 consumers, including more than 40,000 consumers who live outside the United States in 169 different countries.” The distribution of the refunds – which amount to $12.60 per individual consumer – follows from an agreement between Fashion Nova and the FTC that settled charges lodged against Fashion Nova. Continue Reading The FTC is Paying Out $6.5 Million to Consumers in Connection with Fashion Nova Settlement

The New York State legislature recently passed a bill (S2588A/A3354B), signed into law by Governor Cuomo on March 12, 2021, which amends the New York Labor Law and Civil Service Law to grant private and public employees paid leave time for the COVID-19 vaccination. The law is effective March 12, 2021 and will expire on December 31, 2022. Under the new law, employers are required to provide employees with paid leave of absence for COVID-19 vaccinations for a sufficient period of time, not to exceed four hours per COVID-19 vaccine injection. The four-hour maximum per vaccination does not apply to employees subject to a collective bargaining agreement (CBA) providing a greater number of hours, or as otherwise authorized by the employer, to be vaccinated for COVID-19. Where a CBA explicitly references the law, however, its leave provisions may be waived in their entirety.

Currently, the FDA has authorized the use of three vaccines: the Pfizer Inc. and Moderna Inc. vaccines, which each require two doses, and the Johnson & Johnson vaccine, which requires only one dose. Therefore, employees will generally be entitled to up to eight hours of paid leave, depending on the vaccine. This time must be paid at the employee’s regular rate of pay for the entire leave period. The law also provides that the paid vaccination leave may not be charged against any other leave to which the employee is entitled, such as any paid sick leave or leave pursuant to a CBA. Discrimination and retaliation against employees for exercising their rights under the law are prohibited.

A review of policies and practices applicable to workforces in New York State concerning paid leave should be conducted in order to identify any revisions necessary to comply with this new law. The impact on this new requirement on various wage and hour issues, such as spread of hours/split shifts and amounts to pay tipped employees where applicable, should be considered as well. The new law is silent on what, if any, documentation an employer can request from its employees to verify such paid leave. The Equal Employment Opportunity Commission has, however, previously concluded that employers can request proof of receipt of a COVID-19 vaccination, but should consider informing employees not to provide any related medical information. While this New York State statute does not set forth a notice provision, employers should consider ways to advise employees that they are eligible for paid leave under these circumstances.

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

As winter temperatures continue to drop and we’re all looking for a way to feel cozy, many Americans reach for candles as a way to bring some light into their homes during these dark months.  We don’t need to detail why candles – hi, open flames and hot wax! – regularly attract the CPSC’s attention in their mission to keep consumers safe.  In today’s installment of “Recalls in Review,” we look back at CPSC regulatory actions involving both candles and candle-related products.

The Commission has conducted at least 115 recalls of candles and candle-related products since 2001.  The recall data available on the CPSC.gov website reveals a small enforcement “spike” that occurred between 2005 and 2008, followed by a fairly steady number of recalls nearly every year since 2008.

Three civil penalties relating to candles and candle-related products have been issued by the Commission, the most recent of which was in 2008.  The civil penalty fines ranged from $100,000 to $500,000.

Our analysis found various types of candle-related recalls: only half of the recalls involve concerns with the candles themselves, while the rest are caused by issues with the vessel or container into which a candle is poured, or problems presented by candle accessories such as candle holders or wax warmers.

Most often, candles are recalled due to the height of the candle’s flame.  Problems can also be caused by decorative objects added to the candle wax during manufacturing as well as paint, glitter, or other surface coatings on the candle.

Twenty percent of the relevant recalls involve an issue with the container that the candle was poured into, such as a ceramic or glass bowl or a metal tin.  Twenty-six percent of recalls involve separate holders into which candles can be placed.  For example, taper candle holders were recalled just last month due to a concern that the holders could catch fire if they came into contact with a candle’s flame.  Other recalled accessories include candle lighters, candle charms, and paper candle shades.

Unsurprisingly, nearly ninety percent of the relevant recalls address fire or burn hazards.  The Commission recently published news releases in November and December of 2020 reminding consumers to never leave burning candles unattended.  The other ten percent of recalls address laceration hazards.  The laceration recalls all involve glass candle holders and candles in glass jars, which could crack, break, or shatter.  Only one candle related recall since 2001 was conducted to address a hazard other than fire, burn, or laceration – that 2008 recall was of candle pendants and charms, which had been sold both separately and on candles, due to excessive levels of lead.

The most common remedy offered by recalling firms is a refund or store credit.  Less often, the remedy may be limited to a replacement product or instructions regarding safe use of the product.  However, four of the recalls provided no remedy for consumers.  In those instances, the recalling firms simply urged consumers to dispose of the products.

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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.  We share our observations with you through Recalls in Review.

 

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

“Smart” homes and personal electronic devices are no longer a futuristic ideal.  Millions of internet-connected phones, TVs, wearable fitness trackers, home security devices, home appliances, and digital assistants are in use in the United States today.  The internet of things (“IoT”) is the use of network sensors in physical devices to allow for remote monitoring and control.  These devices have made great strides in making our lives more convenient.  But interconnectivity and data collection can also have serious security and privacy implications.

Despite the dramatic increase in the number of IoT products purchased by American consumers over the past few years, the law is slower in addressing any potential hazards posed by IoT technologies.  However, we expect to see more IoT product-related regulations enacted at the federal level over the next few years. We recently wrote about the new Internet of Things Cybersecurity Improvement Act, which was signed into law on December 4, 2020. The legislation charges the National Institute of Standards & Technology (NIST) with drafting and finalizing security requirements for IoT devices.

Continue Reading Recalls in Review: IoT Products

In the coming weeks or months, the European Commission is expected to table an ambitious set of draft legislation that, if adopted, will have a major impact on the business practices of digital service providers in the EU, including non-EU companies serving European users: the Digital Services Act (DSA) and the Digital Markets Act (DMA). The Commission’s legislative proposals aim to strengthen the responsibilities of online platforms and to support fair competition in digital markets.

1. The Digital Services Act (DSA): increasing responsibilities for digital service providers

The DSA’s main objective is to update the e-Commerce Directive. This is long overdue, as the legal framework for digital services has remained largely unchanged since the e-Commerce Directive was adopted in 2000. The update aims to clarify the liability regime for digital intermediaries active in the EU and to reinforce oversight and enforcement.

The DSA will require digital service providers to take more responsibility for dealing with harmful or illegal content and dangerous or counterfeit products. They will have to put in place clear and simple procedures to deal with notifications about harmful or illegal content or goods on their platforms. They will also have to verify the identity of traders before letting them on their platforms (“know your business customer”). At the same time, they will have to make available simple procedures for platform users to complain if they think the removal of their material was unwarranted. Continue Reading New EU Proposals to Regulate Digital Markets – What to Expect