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
A new nationwide standard for upholstered furniture flammability was signed into law on December 27, 2020 as part of the Consolidated Appropriations Act, 2021, which includes the COVID–19 Regulatory Relief And Work From Home Safety Act. This legislation embraces the California Technical Bulletin (TB 117-2013) for testing the smolder resistance of materials used in upholstered furniture. The California standard has been mandatory in that state since 2015, so the standard should already be on the compliance radar for most national retailers.
TB 117-2013 is intended to assess the flammability of upholstered furniture when exposed to a smoldering cigarette, a common cause of residential fires. TB 117-2013 requires different tests for outer fabric, inner linings, and filling material that simulate a discarded, lit cigarette. Each material is required to survive for an extended period without creating flames or overly smoldering or charring. The previous version of the TB 117 standard also required an open flame test, which had been criticized for forcing manufacturers to use flame retardant chemicals.
Continue Reading New National Standard for Flammability of Upholstered Furniture
Recalls in Review: A monthly spotlight on trending regulatory enforcement issues at the CPSC.
If you have ever owned a laptop or hoverboard self-balancing scooter, you’ve likely seen numerous headlines about the lithium-ion batteries overheating, melting, or igniting. We recently wrote about ways in which companies can mitigate risks and execute recalls related to lithium ion batteries. In today’s installment of “Recall’s in Review,” we look back at CPSC regulatory actions involving lithium-ion batteries.
The batteries have become a highly regulated product over the last several years. The Commission has conducted at least 64 recalls involving lithium-ion batteries since 2006. The number of recalls rose substantially in 2016 and 2017, many of which were related to the rechargeable lithium-ion batteries inside hoverboards and laptop computers. The Commission took a more active role in warning consumers about the hazards posed by the batteries after two incidents of overheating lead to serious house fires in March and October of 2017.
Only one civil penalty relating to lithium-ion batteries has been issued by the Commission, in early 2012. The manufacturer was fined $425,000 for failure to timely report that certain lithium-ion battery packs could overheat.
Continue Reading Recalls in Review: Lithium-ion Batteries
Over recent years, the use of lithium ion batteries has become widespread in consumer products such as laptops, smartphone, hoverboards, electric scooters and bicycles, and power banks. Unfortunately, many companies have been forced to recall their products over thermal events involving those products’ lithium ion batteries.
Manufacturers can mitigate their risks of fire hazards with
In the wake of the COVID-19 pandemic, product manufacturers and distributors—many of whom have pivoted to create PPE-related products for the first time—are now faced with a veritable morass of guidelines and requirements to navigate from a variety of governmental agencies. Recent enforcement actions by federal agencies have only highlighted the importance of understanding exactly how a product must be produced, advertised, labeled, and sold. This begs the important question: who is the regulator and what is the rule?
Our product risk management team has been speaking to several trade associations in September 2020 about how to navigate the alphabet soup of federal agencies supervising COVID-19 product distribution. The biggest takeaway: How a product is advertised for sale plays a critical role in how it is regulated and by which agency . The regulatory profile can mean the difference between required manufacturing registration or specific requirements as to product labeling.
This article outlines a few of the major players involved in regulating products designed to mitigate or prevent COVID-19—specifically, the Food and Drug Administration (“FDA”), Federal Trade Commission (“FTC”), and Environmental Protection Agency (“EPA”)—and discusses high-level considerations for entities who find themselves caught up in the regulatory alphabet soup.
Recalls in Review: A monthly spotlight on trending regulatory enforcement issues at the CPSC.
Electric scooters have taken American cities by storm as micromobility companies expand to meet consumer demand for more convenient transportation options. As with bicycles, scooters have become a go-to option for consumers who are seeking socially distant activities and modes of transportation amid the COVID-19 pandemic.
The regulation landscape for powered scooters is still being charted. Although a federal safety standard which addresses electrical systems and lithium-ion batteries in personal e-mobility devices (ANSI/CAN/UL 2272) exists, there is no corresponding safety standard for regulating the overall operational, mechanical, or electrical safety aspects of powered scooters. Additional standards may be promulgated in the near future, however. The American Society for Testing and Materials (ASTM) Consumer Products Subcommittee on Powered Scooters and Skateboards (F15.58) has begun developing a proposed standard intended to minimize the common hazards associated with use of commercial electric-powered scooters by adults.
Given the lack of a mandatory federal safety standard for powered scooters, it is unsurprising that recalls of powered scooters were infrequent in in the first two decades that the products were on the market. The Commission has conducted 34 total recalls of powered scooters. Only nine of the recalls occurred between 1996 and 2015. The small enforcement “spike” in 2005 corresponds with CPSC efforts to track emergency-room visits related to powered scooters. At least 10,015 emergency room-treated injuries occurring between July 2003 and June 2004 were related to powered scooters. Recalls increased dramatically as hoverboards (also referred to as “self-balancing” electric scooters) were introduced to the market. Fourteen recalls of powered scooters were conducted in 2016 alone, closely followed by another ten recalls in 2017.
Continue Reading Recalls in Review: Electric- and Gas-Powered Scooters
Mopeds fall within NHTSA’s jurisdiction when they can go over 20 mph and are meant to be used primarily on roads. They’re considered “motor-drive cycles,” which are a subset of motorcycles. In NHTSA’s world, a motorcycle is “a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground.”[1] A motor-drive cycle is “a motorcycle with a motor that produces 5–brake horsepower or less.”[2] Since these mopeds are regulated by NHTSA, they cannot be imported into or sold in the United States without complying with the FMVSS.[3]
Since NHTSA is focused on vehicles meant for road use, one might wonder whether the use of bike paths changes NHTSA’s jurisdiction over mopeds. Ultimately, though, NHTSA is focused on speed. According to NHTSA’s published interpretations of its regulations, the agency “believe[s] that vehicles with speeds of over 20 mph are capable of on-road operation,” and therefore fall within their purview. NHTSA makes classifications for vehicles in interstate commerce. The classifications are meant to be as applicable in California as they are in Tennessee or Maine. Some cities may have ample bike lanes such that it would be reasonable for the bikes to never be used on roads, but most do not. NHTSA’s classifications will not change from location to location.
Continue Reading NHTSA versus CPSC Jurisdiction Over Certain Micromobility Products
Recalls in Review: A monthly spotlight on trending regulatory enforcement issues at the CPSC.
As bicycles become a go-to social distancing option for consumers, we turn our attention in this Recalls in Review segment to an associated (and also closely regulated) product—bicycle helmets. The CPSC mandates that all bicycle helmets manufactured or imported since March 17, 1995 meet the standard set forth in 16 CFR Part 1203.1(c). This mandatory standard covers bicycle helmets and multipurpose helmets that can be used when riding a bicycle. The standard does not cover helmets marketed for exclusive use in another designated activity, such as baseball or skateboarding. (16 CFR Part 1203.4(b)).
The Commission has conducted 26 bicycle helmet recalls, with the first occurring in 1995 and the latest just last week. CPSC attention to helmets remains fairly steady over time, with at least one recall most years, and no significant enforcement “spikes” at any point.
As alluded to in last week’s post, Product Safety Regulations for Electric Bicycles and Scooters, micromobility products, such as e-bikes and scooters, fall at the intersection of jurisdiction between two distinct federal agencies: the Consumer Product Safety Commission (CPSC) and National Highway Traffic Safety Administration (NHTSA).
The CPSC is charged with protecting the public from unreasonable risks of injury or death associated with “consumer products.” “Consumer products” broadly defined includes any product for use in or around residences, schools and in recreation. CPSC’s jurisdiction expressly excludes “motor vehicles.”[1]
NHTSA, which is charged with ensuring safety on public road ways, has jurisdiction over “motor vehicles.” “Motor vehicles” are “vehicle[s] driven or drawn by mechanical power manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.”[2]
There is no hard-and-fast rule as to what constitutes a “motor vehicle” subject to NHTSA’s jurisdiction. Thus in determining whether a product is a “motor vehicle,” NHTSA typically considers such factors as:
Continue Reading 20 Miles Per Hour Divides NHTSA and CPSC Jurisdiction Over Micromobility Products
Rideshare bicycles and scooters have become increasingly ubiquitous in cities across the United States over the past few years. While many rideshare bicycles are conventional, others feature pedal-assist technology and are commonly referred to as “electric bicycles” or “e-bikes.” As for scooters, electric versions are offered to consumers by rapidly growing micromobility companies such as Lime and Bird. Given the increasing popularity and expansion of these rideshare vehicles across the country, we provide a brief overview of the regulatory landscape that ensures the safety of these products.
Bicycles
In 1972, the Congress established the U.S. Consumer Product Safety Commission (CPSC) to regulate the safety of consumer products at the federal level. One of the first products to be regulated by the Commission was bicycles. In 1978, the CPSC promulgated its first rules regulating traditional human powered bicycles (16 CFR part 1512) with the goal of establishing requirements for their assembly, braking, and structural integrity. It was not until twenty-five years later, in 2003, that the Commission, pursuant to an act of Congress, updated the federal safety standard for bicycles to include low-speed electric bicycles. Thus, electric bicycles, including most of those used for ridesharing purposes, are regulated by the CPSC and must comply with the mandatory federal safety standard for bicycles at 16 CFR part 1512.
Continue Reading Product Safety Regulations for Electric Bikes and Scooters