U.S. Consumer Product Safety Commission (CPSC)

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

As more communities lift pandemic-based restrictions on travel and social gathering sizes, Americans will increasingly begin moving homes and renovating furnished rental and guest rooms—which often includes replacing older mattresses.  Historically, mattresses were highly flammable and contributed significantly to house fires, leading Congress to address the safety concern through its enactment of the Flammable Fabrics Act (FFA) in the 1970s.

Through the FFA, the Consumer Product Safety Commission has authority to regulate mattresses and mattress pads, including setting a federal flammability standard (16 C.F.R. § 1632), which was promulgated in 1973 to require ignition resistance of mattresses and mattress pads to smoldering cigarettes.  The standard applies to mattresses—including traditional mattresses of all sizes, crib mattresses, futons, mattresses in sleeper sofas and campers, and water bed and air mattresses containing upholstery materials—and mattress pads and covers.  The federal Standard for the Flammability (Open-Flame) of Mattress Sets (16 C.F.R. § 1633), which became effective in 2007, was designed to increase the time that consumers have to discover and escape bed fires by limiting the size of the fire generated by a mattress set.  Mattresses must meet the performance, labeling, and record keeping requirements of both standards as applicable before the products can be entered into commerce in the United States.…

Continue Reading Recalls in Review: Mattress Recalls

Playtime For Kids

Shortly after taking office, President Biden announced an “all of government” approach to achieving environmental justice. In Executive Order (E.O.) 14008, “Tackling the Climate Crisis at Home and Abroad,” President Biden stated that his administration would secure environmental justice for all Americans by addressing the disproportionately high and adverse health and environmental impacts in minority communities. In the several months that have passed since E.O. 14008 was issued, federal agencies, including the U.S. Consumer Products Safety Commission (“CPSC”), have begun implementing the administration’s policy by prioritizing equity and evaluating cumulative impacts in their policymaking.

In March 2021, CPSC Acting Chairman Robert Adler released an unprecedented statement emphasizing the CPSC’s “strong and ongoing commitment to diversity and equity.” The first of CPSC’s two-part 2021 Mid-Year Plan seeks to address the disproportionate safety risks that minority communities face with respect to consumer products. Under the plan, the CPSC will conduct safety equity studies to “determine whether there are specific areas of risk within ethnic, racial, socioeconomic, and other diverse populations” that face more danger from high-risk products. Specifically, the study will evaluate safety risks amongst different demographic groups, particularly in falls, drownings, and poisonings. The agency will use this data to inform future outreach and develop equitable safety standards. In addition, the CPSC has allocated funding to safety campaigns that highlight the unique risks and needs of diverse and vulnerable communities. Campaign messaging will include topics such as poison prevention, consumer product chemical safety, and other safety education information targeted to vulnerable communities.
Continue Reading Biden’s Environmental Justice Push and its Impact on Retailers’ ESG Considerations

Upholsterer Installing Fabric on Seat Cushion with Air Stapler

The Consumer Product Safety Commission has issued new guidance and labeling instructions for the nationwide standard for upholstered furniture flammability.  On May 19, 2021, the CPSC published an online Q&A that provides important information to industry and previews the agency’s enforcement outlook.

The Q&A guidance confirms that the standard is effective as of June 25, 2021 but does not apply to items manufactured, imported, or reupholstered before June 25, 2021.  Industry has more time to implement the new labeling requirements:  the Q&A restates that the labeling requirement begins on June 25, 2022 and only applies to upholstered furniture manufactured, imported, or reupholstered on or after that date.…

Continue Reading CPSC Issues Guidance on New Upholstered Furniture Flammability Standard

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

As people increasingly turn to online shopping over traditional brick-and-mortar stores, consumers, safety advocacy groups, and regulators alike have begun to pay more attention to the authenticity and safety of products.  One particular concern is the presence of lead in consumer…

Consumer protection

Could the end of Section 6(b) of the Consumer Product Safety Act (CPSA) actually be near?  Time will tell.  But last week’s development on Capitol Hill in the saga of “Section 6(b)” is noteworthy, and, one day in the not-so-distant future, may be recognized as the beginning of the end for this controversial provision of the law.

On April 22, Senator Richard Blumenthal (D-CT) and Representatives Jan Schakowsky (D-IL) and Bobby Rush (D-IL) introduced legislation—the Sunshine in Product Safety Act—to fully repeal Section 6(b) of the CPSA.  This is the first time in recent memory that Members of Congress have introduced legislation to do away with Section 6(b) altogether.  For example, in the last Congress, Representative Rush introduced the “SHARE Act,” which sought primarily to scale back one of Section 6(b)’s most important protections for firms—allowing a company to judicially challenge the U.S. Consumer Product Safety Commission’s (“CPSC” or “the Commission”) decision to release information about a firm, or one of its products, prior to its disclosure.  But that legislation left the rest of Section 6(b)’s procedures and protections intact.  This current bill, therefore, is much more ambitious, and stakeholders should take note.

By way of background, Section 6(b) requires the CPSC to engage in certain procedural steps before publicly disclosing information from which the identity of a manufacturer of a product can be readily ascertained.  Those include taking reasonable steps to ensure that the information to be disclosed publicly is fair, accurate, and reasonable related to effectuating the purpose of the product safety laws.  Practically speaking, this means notifying the manufacturer of the potential disclosure, providing either a summary of what the agency intends to disclose, or the actual disclosure itself, and providing the company with the opportunity to comment, typically 15 days, though that time period can be shortened by the CPSC with a “public health and safety finding.”  Other regulators, like FDA and NHTSA, do not have similar statutory constraints on the release of product information nor do they have due process protections around data release, whether those be adverse events or vehicle accidents.
Continue Reading New Bills Seek to Repeal Controversial Provision of Product Safety Act

The Consumer Product Safety Commission (CPSC) voted to promulgate a Direct Final Rule clarifying deadlines for the new nationwide standard for upholstered furniture flammability.  The new rule codifies the effective dates for compliance with the new national flammability standard (which incorporated California’s flammability testing standard already in effect) and allows for affected parties to comment if they are significantly adversely affected by the new rule.
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Continue Reading CPSC Rulemaking Clarifies June 25, 2021 Deadline to Comply with Furniture Flammability Standard, Extends Labeling Requirement Deadline Until 2022

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

The demand for consumer exercise equipment soared over the past year as Americans sought out ways to stay in shape while spending more time at home.  As more Americans create their own “home gyms” and purchase exercise equipment such as stationary…

On Tuesday, March 30th Crowell & Moring’s Cheryl Falvey and Matthew Cohen will lead a webinar titled, “The Consumer Product Safety Commission – An Agency in Transition.”

The U.S. Consumer Product Safety Commission (“CPSC”) is in a state of transition. The Democrats will soon have a majority of commissioners. Acting Chairman Bob Adler has announced…

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

This past Wednesday, Robert Adler, Acting Chairman of the U.S. Consumer Product Safety Commission (CPSC), delivered a keynote address at the annual conference of the International Consumer Product Health and Safety Organization (ICPHSO).  In his final remarks to the conference as leader of the agency, Adler confirmed what many have suspected over recent…