Product Liability & Torts

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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:

  • the product’s intended use;
  • the product’s use of the public roadways and how incidental or predominant that use tends to be;
  • how the product is marketed;
  • the kinds of dealers that sell the product;
  • how or whether dealers may certify or register the product; and
  • the product’s speed.

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

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

As we launch into the third quarter of 2020, we are taking a look at the trends from the CPSC’s recalls through the first half of the year.  The Commission has conducted 145 total recalls so far this year.  As is usually the case, the types of products recalled have varied widely, including ceiling fans, cleaning products, furniture, inclined sleepers, portable generators, pajamas, and strollers.  But some product categories have appeared multiple times, including: Dressers and Drawer Chests, Essential Oils, and Recreational Vehicles such as ATVs, UTVs, and Golf Carts.

In 2020 so far, Dressers, Drawer Chests, and Essential Oils have seen an increase in number of recalls as compared to recent years. Recreational Vehicles have historically been highly regulated, however, and the rate of recalls conducted in 2020 is comparatively similar to past years.

Continue Reading Recalls in Review: Recall Trends in 2020

Blockchain is a digital, decentralized, distributed ledger that provides a way for information to be recorded, shared and maintained by a community. Below we review the impact blockchain can have on increasing product safety, reducing recall expense, combatting counterfeits and otherwise assisting retailers in managing risk and protecting customers. By allowing for near real time, immutable tracking that is easily accessible to suppliers, manufacturers and government entities, blockchain technology has the capacity to revolutionize the retail industry.

Key features of the blockchain include:

  • Near real time – enables almost instant settlement of recorded transactions, removing friction and reducing risk.
  • Reliable and available – as multiple participants share a blockchain, it has no single point of failure and is resilient in the face of outages and attacks.
  • Transparent – transactions are visible to all participants, with identical copies maintained on multiple computer systems, increasing the ability to audit and trust the information held.
  • Irreversible – it is possible to make transactions irreversible, which can increase the accuracy of records and simplify back-office processes.
  • Immutable – it is nearly impossible to make changes to a blockchain without detection, increasing confidence in the information it carries and reducing the opportunities for fraud.

Helping Product Safety, Reducing Recall Costs and Protecting Brands
Continue Reading Blockchain & the Retail Industry: Product Safety and Counterfeiting Use Cases

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

In the past year, the Commission has significantly ramped up its monitoring of products for compliance with special packaging safety standards (16 CFR § 1700), resulting in a jump in recalls for failure to meet those standards.  The CPSC has conducted…

Last week, we attended the annual conference of the International Consumer Product Health and Safety Organization (ICPHSO), where Robert Adler, Acting Chairman of the U.S. Consumer Product Safety Commission (CPSC) addressed the conference in his capacity as interim chairman of the agency. Acting Chairman Adler began his remarks by acknowledging that he is an…

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

If you manufacture or sell strollers—or use a stroller to transport children under your care—headlines regarding CPSC litigation over the Britax BOB jogging stroller are likely fresh in your memory.  In today’s installment of “Recalls in Review,” we look back at…

The current process for creating voluntary product safety standards has recently been criticized in the media in connection with a debate over whether rare-earth magnets can be adequately regulated through the voluntary standard process in order to protect children from swallowing the magnets. Regardless of opinions about how the process works, the CPSC treats them…

Companies should have robust procedures in place so they can quickly respond to the receipt of information concerning the safety of their product(s). Last month, we posted an article about best practices for collecting safety complaint data, which focused on how to gather and save data when a consumer safety complaint comes through the…