U.S. Consumer Product Safety Commission (CPSC)

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Torts & Product Liability Issues
Wednesday, January 12,

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

With the winter holiday season approaching, many families are looking forward to hard-earned vacations and fun activities with their loved ones. And many will be looking to ride, rent, or purchase recreational vehicles for some fun—from all-terrain vehicles (“ATVs”) and golf cars to off-road motorcycles and snowmobiles. Thus, as we head into the winter season, we turn our attention to Consumer Product Safety Commission (“CPSC”) regulatory actions involving recreational and utility vehicles for this month’s installment of “Recalls in Review.”
Continue Reading Recalls in Review: Recreational and Utility Vehicles

On Tuesday evening, the United States Senate confirmed Richard Trumka Jr. to a seven-year term on the Consumer Product Safety Commission (CPSC) by voice vote. Mr. Trumka Jr. will replace long-time Commissioner Bob Adler whose term expired last month. Importantly, with Mr. Trumka Jr.’s confirmation, the Commission will remain comprised of two Democratic (Hoehn-Saric and Trumka Jr.) and two Republican (Baiocco and Feldman) Commissioners. The Democrats will not have a majority on the Commission until current Biden nominee (and CPSC Executive Director) Mary Boyle is confirmed by the Senate—and the status of that nomination remains unclear.
Continue Reading Senate Confirms Trumka Jr. for Consumer Product Safety Commission; Adler to Retire After Twelve Year Run as Commissioner and Lifetime of Service to Agency

In one of the most significant developments in product safety law over the past decade, Gree Electric Appliances Inc. of Zhuhai, Hong Kong Gree Electric Appliances Sales Co. Ltd., and Gree USA Inc. (the “Gree Companies”), an appliance manufacturer and two of its subsidiaries, have pled guilty to willfully failing to report to the Consumer Product Safety Commission (CPSC) under Section 15(b) of the Consumer Product Safety Act (CPSA). According to the U.S. Department of Justice (DOJ) and the CPSC, the Gree Companies knew their dehumidifiers were defective, failed to meet applicable safety standards, and could catch fire, but failed to timely report that information to the CPSC. Section 19 of the CPSA makes it unlawful to fail to furnish information required by Section 15(b), and such failures are subject to both civil and criminal penalties. While CPSC civil penalties have become fairly routine—the Gree Companies also paid a then-record $15.45 million civil penalty in 2016—this is the first corporate criminal enforcement action brought under the CPSA, according to the DOJ. 
Continue Reading Silence Isn’t Golden: Failure to Report Consumer Product Safety Issues Results in Rare $91 Million Criminal Penalty

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

As businesses brace for anticipated supply chain delays in the coming months, many stores are already offering impressive deals to early holiday shoppers.  Recognizing that numerous popular products contain magnets, we turn our attention to CPSC regulatory actions involving magnets in this month’s installment of “Recalls in Review.”

At least 58 recalls involving magnets have been conducted since 1998, with 56 of those recalls occurring after 2005.  The CPSC began monitoring magnets, magnet sets, and products containing magnets very closely in 2007, recalling eleven products amid reports that children were swallowing magnets and experiencing severe internal injuries.  Similar recalls continued into 2008 and were accompanied by an increase in recalls of magnets for violations of the federal lead paint standard.

Unlike many other consumer products, no mandatory federal safety standard exists specifically to regulate magnets or magnet sets.  The CPSC attempted to promulgate a mandatory federal safety standard to address high-powered magnets and published the regulation on October 3, 2014.  Under the rule, magnets intended for use as part of a magnet set and that fit the CPSC’s definition of a “small part” could not have a flux index above the specified level.  However, the rule was ultimately vacated by a federal court and removed from the Code of Federal Regulations.  Still, the CPSC continues to monitor and recall high-powered magnets.  The CPSC first sued Zen Magnets LLC in 2012 over their high-powered “Zen Magnets Rare Earth Magnet Balls” to force a recall of the products after discussions with the company failed to result in a voluntary recall plan.  The Zen Magnets recall was finally announced in August 2021.


Continue Reading Recalls in Review: Magnet-Related Recalls

For the first time since February 2017, when then-Chairman Elliot Kaye stepped down as leader of the agency, the United States Consumer Product Safety Commission (CPSC) has a permanent chairman. On October 7, 2021, the U.S. Senate confirmed Alexander Hoehn-Saric as Chairman (and Commissioner) of the CPSC by voice vote. Hoehn-Saric’s confirmation comes on the heels of some partisan wrangling at the Commission during which Republican Commissioners Dana Baiocco and Peter Feldman successfully amended the Commission’s FY22 Operating Plan by a 2-1 vote over the strong opposition of then-Acting (Democratic) Chairman Robert Adler. Given Adler’s plea following that vote for the (Democrat-held) Senate to confirm the pending nominations of Hoehn-Saric, and Richard Trumka Jr., and Mary Boyle, President Biden’s two other recent nominees, Hoehn-Saric’s swift confirmation was likely no coincidence.
Continue Reading Senate Confirms Hoehn-Saric as Chairman of CPSC

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

As children head back to the classroom this Fall, the CPSC issued a news release reminding parents to “Think Safety First” as kids return to schools.  Recognizing that many back-to-school shopping carts also include new clothes and pajamas, we look back at CPSC regulatory actions involving Children’s Sleepwear in this month’s installment of “Recalls in Review.”

The Consumer Product Safety Commission has regulated the flammability of children’s sleepwear since at least the 1970s.  In addition to other safety standards imposed on children’s products, children’s sleepwear is governed by Federal Safety Standards for the Flammability of Children’s Sleepwear based on sizing of the garments (16 CFR Part 1615 and 16 CFR Part 1616).  The regulations apply to any product of wearing apparel, such as nightgowns, pajamas, or similar or related items, such as robes, that is intended to be worn primarily for sleeping or activities related to sleeping.  Specific items—including diapers, underwear, and certain infant tight-fitting garments—are exempted from the definition of children’s sleepwear.

The CPSC began monitoring the safety of children’s sleepwear more closely in 2011.  At least 82 recalls of children’s sleepwear have been conducted since 2001, with 77 of those recalls occurring after 2010.  Only a handful of related recalls were conducted prior to 2001.  However, at least 11 civil penalties relating to children’s sleepwear were issued between 1980 and 2001, with somewhat dated fines ranging from $3,500 to $850,000.


Continue Reading Recalls in Review: Children’s Sleepwear

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

As we launch into the third quarter of 2021, we have taken a look back to identify and highlight trends from the CPSC’s recalls through the first half of the year.  The Commission has conducted 134 total recalls so far this year—about ten fewer recalls than in the first half of 2020.  The types of products recalled vary widely, including ATVs and UTVs, bicycles, kitchen appliances and cooking utensils, exercise equipment, toys, essential oils, portable generators, charging cords, and heavy machinery, among many others.

Some product categories have appeared on a repeat basis this year, including: furniture, recreational vehicles, such as ATVs, UTVs, and motor bikes, and children’s clothing.  The Commission has recalled furniture and recreational vehicles at a fairly consistent rate since January. The rate of recalls for recreational vehicles, which have historically been highly regulated, is on par with 2020 and past years as well.  However, the recalls of children’s clothing began much later in the year.  That upswing is largely attributable to recalls of children’s jackets and sleepwear.


Continue Reading Recalls in Review: Recall Trends in 2021

Last month, U.S. Representative Grace Meng (D-NY) announced that she has reintroduced legislation—the Total Recall Act—to change the way that businesses notify the public about recalls.  The text of the legislation can be found here.

H.R. 3724, entitled the “Total Recall Act,” requires firms engaged in a product recall to post recall notices on their websites and all social media accounts, and also spend a defined amount of money on publicizing the recall depending upon whether it is mandatory or voluntary.  For a mandatory recall, which is an incredibly rare event, businesses would be required to expend a sum of money that equals at least 25% of what the firm spent on marketing the product prior to its recall.  On the other hand, for common voluntary recalls, firms would be required to use at least 25% of the product’s original marketing budget as well as 100% of the product’s social media marketing budget on publicizing the recall.  The bill would also mandate that the U.S. Consumer Product Safety Commission provide an annual report to Congress on participation rates for each recall.
Continue Reading Product Recall Notification Legislation Reintroduced in Congress

The July 4th holiday weekend started a tad late for those of us who practice in the field of consumer product safety.  Late Friday afternoon, the White House announced that President Biden has nominated two new commissioners to serve on the U.S. Consumer Product Safety Commission (CPSC)—Alexander Hoehn-Saric and Mary Boyle.  Both are Democrats and, once confirmed, will shift the balance of power at the Commission to a 3-2 split between Democrats and Republicans.  This development is significant to say the least—the Democrats have not held three seats on the Commission since May 2018 and there has not been a permanent chairman of the agency since President Trump removed then-Chairman (and now Commissioner) Elliot Kaye in February 2017.

If confirmed, Mr. Hoehn-Saric will become the new—permanent—chairman of the Commission, while Ms. Boyle will replace Commissioner Kaye who is currently serving in his “hold-over” year as his term expired last October.  Current Acting Chairman Robert Adler will remain on the Commission as the third Democratic commissioner until his term expires in October and he retires from the agency as previously announced.  These three will be joined by current Republican Commissioners Peter Feldman and Dana Baiocco to give the five-member Commission a full complement of commissioners.  Of course, if these nominations stall and/or current members of the Commission depart the agency in the coming months (e.g., Adler), other possibilities with respect to the balance of power are conceivable.
Continue Reading Breaking: Hoehn-Saric and Boyle Nominated to CPSC; Democratic Majority in Sight