The American Conference Institute held its Second Annual Consumer Products Regulatory & Litigation conference on June 11-12, 2014, in Chicago, Illinois. Here is a list of the key takeaways from this year’s event:
On recent Commission activity:
- While Commissioners at the Consumer Products Safety Commission (CPSC) may admit to having “erasers on their pencils” when it comes to looking at proposed rules, they need to see facts, science, and data—objectively presented—in order to be willing to use those erasers. The decision to postpone action on the pending 1110 rule and hold a stakeholder meeting shows the Commission’s willingness to be responsive when concerns are raised. Without hard data and compelling arguments, however, you may just be viewed as part of the din of the CPSC bar “echo chamber.”
On corporate compliance plans:
- Tackling the question of whether a product presents a safety defect requires interdisciplinary product safety teams and robust communication to avoid information silos. Senior management oversight of the risk assessment necessary to determine whether a defect may present a substantial product hazard can help a company avoid making the wrong call as to whether a series of incidents or complaints should be reported to the CPSC.
- The chain of authority and ultimate responsibility for decision-making on product safety defects need to be clearly delineated within your organization. Your product safety team must remain open to reassessing their prior decisions based on new or emerging information.
- Don’t let the need to preserve attorney client privilege prevent you from telling your story at trial or in an agency penalty enforcement proceeding. Everyone—consumers, journalists, Congress, courts, and juries—will want to know what the record reflects in terms of corporate actions during an emerging product crisis. And courts have held that safety committee meeting minutes are not necessarily privileged even when an in-house lawyer participates as a committee member.