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

Monday, December 20, 2021

Bureau of Competition: Retail Fuel Merger

  • The FTC entered into a consent order with Global Partners LP and Richard Wiehl to settle charges that Global’s proposed acquisition of Wiehl’s chain of 27 retail gasoline service stations would violate federal antitrust laws. Under the order, Global and Wiehl must divest seven fuel outlets to Petroleum Marketing Investment Group, and for the next ten years, Global must obtain prior approval from the Commission before acquiring retail fuel assets within two miles of any of the divested outlets. Concurrently with the order, the agency issued an analysis explaining the potential anticompetitive effects of the proposed acquisition and how the consent agreement remedies those effects.

Continue Reading FTC Updates (December 20, 2021 – January 7, 2022)

The practice of law has changed in many ways during the COVID-19 global pandemic, but a slow-down in class action lawsuits was not one of those changes. In the second half of 2021, consumers filed quite a few lawsuits following a wide range of highly-publicized recalls, involving everything from pharmaceuticals to automobiles.

For example, as previously reported, on June 14, 2021, Philips Respironics voluntarily recalled several different models of CPAP and BiPAP breathing machines because the polyester-based polyurethane (PE-PUR) foam in the machines has the potential to break down, be inhaled or ingested by users, and increase their risk of cancer and other injuries. In the weeks and months that followed the recall, a number of putative class action lawsuits emerged, seeking compensation for injuries, risks, and disrupted use. Generally speaking, plaintiffs allege that Philips Respironics knew about the serious risk of injury caused by its devices long before it warned the public about potential hazards in April 2021 and finally recalled the machines in June 2021. Over a hundred lawsuits have now been consolidated in the U.S. District Court for the Western District of Pennsylvania in the CPAP multi-district litigation, In Re: Philips Recalled CPAP, Bi-Level PAP, and Mechanical Ventilator Products Liability Litigation, MDL No. 3014, and discovery is ongoing. Continue Reading Recall Litigation Report: Year in Review (2021)

Monday, December 6, 2021

Consumer Protection: FTC’s Franchise Rule

  • The FTC filed an amicus brief in pending litigation to advise the Supreme Court that the FTC’s Franchise Rule cannot be used to determine whether a franchisee is an employee or an independent contractor. The Franchise Rule, codified as 16 C.F.R. §§ 436–437, requires franchisors to provide certain material disclosures to all potential franchisees. In its brief, the agency explained that it enacted this Rule in 1978 in response to widespread deception in the sale of franchises, and that it should preempt state laws only if they offer less protection to prospective franchisees.

Continue Reading FTC Updates (December 6-10, 2021)

Tuesday, November 2, 2021

Deceptive or Misleading Conduct & Consumer Protection

  • The FTC recently issued full refunds totaling over $2 million to consumers who lost money through certain deceptive direct mail schemes. The agency recovered the refunds via a federal district court order resulting from the FTC’s lawsuit against Agora Financial, LLC, NewMarket Health, and other defendants. The lawsuit was based upon two publications defendants marketed to older consumers. One publication contained a protocol promising to permanently cure type 2 diabetes in 28 days, while the other promised to show how to claim money from a secret giveaway by Congress. The FTC obtained the order including consumer refunds before the Supreme Court stripped the agency of its ability to obtain equitable monetary relief in federal court in the April 22, 2021 AMG Capital decision. Congress has not yet acted on the FTC’s request to reinstate this power.

Continue Reading FTC Updates (November 1-5, 2021)

On November 4, 2021, the Occupational Safety and Health Administration (“OSHA”) released its much-anticipated COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to ensure that their employees are either vaccinated by January 4, 2022, or submit to weekly testing.  According to OSHA, employees who are unvaccinated face a “grave danger” from COVID-19, including the more contagious Delta variant.  The ETS notes that COVID-19 is highly transmissible—particularly in workplaces where multiple people interact throughout the day often for extended periods of time—and exposure to COVID-19 can result in death or illness, with some individuals experiencing long-term health complications.  OSHA has determined that vaccination is the most effective way to protect these employees. Continue Reading OSHA Publishes Vaccine Requirements for Employers with 100 or More Employees