Consumer Product Safety Commission (CPSC)

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Here’s a brief review of key developments concerning the U.S. Consumer Product Safety Commission (“CPSC”) from the past month to help you stay aware of important product safety legislative and regulatory happenings.

Gree Appliance Companies Plead Guilty to Felony Charge for Failure to Report; Indicted Executives Await Trial.  In one of the most significant developments in product safety law over the past decade, Gree Electric Appliances Inc. of China, Hong Kong Gree Electric Appliances Sales Co. Ltd., and Gree USA Inc. (the “Gree Companies”), a global appliance manufacturer, have pleaded guilty to willfully failing to report to the CPSC under Section 15(b) of the Consumer Product Safety Act.  According to the DOJ and CPSC, the Gree Companies knew their dehumidifiers were defective, failed to meet applicable safety standards, and could catch fire, but failed to report that information to the CPSC for months.  Section 19 of the CPSA makes it unlawful to fail to furnish information required by Section 15(b), and that failure is subject to civil and criminal penalties.  While CPSC civil penalties (or at least investigations) have become fairly routine—indeed, the Gree Companies paid a then-record $15.45 million civil penalty in 2016—this is the first corporate criminal enforcement action brought under the CPSA by the Government.  As part of the Gree Companies’ plea agreement, they will pay a $91 million penalty.  Two Gree executives have been charged criminally by the DOJ as well, and await trial, scheduled for March 2022.  Stay tuned for a full analysis from the Crowell product safety team.
Continue Reading CPSC Insights – October 2021

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

Here’s a brief review of key developments concerning the U.S. Consumer Product Safety Commission (“CPSC”) from the past month or so to help you stay aware of important product safety legislative and regulatory happenings.

Commissioner Elliot Kaye Departs the Commission.  In late August, Commissioner (and former Chairman) Elliot Kaye announced his departure from the agency to assume a senior position at Jose Andres’ World Central Kitchen.  Kaye, whose term had expired in October 2020, was serving in his “hold-over” year pending the confirmation of a new commissioner.  As a result of Kaye’s departure, there are currently two Republicans on the Commission (Dana Baiocco and Peter Feldman) and one Democrat—Acting Chairman Robert Adler.  This political dynamic, similar to when the Democrats held a majority of commissioner seats during the Trump Administration, has already caused some partisan maneuvering and angst at the agency (see Vote on FY22 Operations Plan story below).  However, this 2-1 split in favor of the Republicans will not last for long.  Read on!
Continue Reading CPSC Insights – September 2021

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

Although members of the House and Senate don’t agree on everything lately, they have come together in efforts to ensure safety of products intended for use by infants and small children.  In today’s installment of “Recalls in Review,” we look back at CPSC regulatory actions involving Pacifiers and Pacifier Accessories.

A pacifier rule was first proposed by the Food and Drug Administration in 1972 before the Federal Hazardous Substances Act was transferred to the CPSC.  The CPSC has regulated pacifiers and pacifier accessories regularly since 1976, when the Commission proposed a substantially revised regulation after investigations by CPSC staff revealed at least eight infant deaths associated with pacifiers.  Pacifiers must now comply with the Federal Safety Standard for Pacifiers, 16 CFR Part 1511, and the U.S. Toy Standard, ASTM F963-17.  And although pacifier clips do not fall under the definition of “pacifiers” in the safety standard, they must still meet separate children’s product safety requirements, such as the Small Parts regulation (16 CFR Part 1501).  Additionally, pacifiers may not be sold with any ribbon, string, cord, or similar attachment.

At least sixty-six pacifier-related products have occurred to date, with thirty-two of the recalls occurring since 2001.  Enforcement has been roughly consistent over the years; the largest number of recalls in any single year totaled six recalls in 2009.

Continue Reading Recalls in Review: Pacifier and Accessory Recalls

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…

The U.S. Consumer Product Safety Commission (CPSC) has announced a civil penalty settlement with exercise equipment manufacturer Cybex International (Cybex).  Cybex has agreed to pay a civil penalty of $7.95 million to resolve charges that it knowingly failed to immediately report allegedly defectiveto the CPSC under Section 15(b) of the Consumer Product Safety Act.  This civil penalty, already the second of 2021, underscores a material change in enforcement approach from the past two years, in which the Commission did not announce a single civil penalty for violations of the product safety laws.

In this case, CPSC staff alleged that Cybex failed to report immediately to the Commission that it had information which reasonably supported the conclusion that components of certain pieces of its gym equipment—arm curl and press machines—could detach or fall causing severe injury to the user, including eye loss, spinal fracture, and in one case paralysis.  The Commission voted 3-0-1 to provisionally accept the settlement. We encourage our readers to review the settlement agreement here to learn more about the factual background.
Continue Reading Cybex Civil Penalty at CPSC Confirms Return of Enforcement Tool

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

As winter temperatures continue to drop and we’re all looking for a way to feel cozy, many Americans reach for candles as a way to bring some light into their homes during these dark months.  We don’t need to detail why…

A new nationwide standard for upholstered furniture flammability was signed into law on December 27, 2020 as part of the Consolidated Appropriations Act, 2021, which includes the COVID–19 Regulatory Relief And Work From Home Safety Act.  This legislation embraces the California Technical Bulletin (TB 117-2013) for testing the smolder resistance of materials used in upholstered furniture.  The California standard has been mandatory in that state since 2015, so the standard should already be on the compliance radar for most national retailers.

TB 117-2013 is intended to assess the flammability of upholstered furniture when exposed to a smoldering cigarette, a common cause of residential fires.  TB 117-2013 requires different tests for outer fabric, inner linings, and filling material that simulate a discarded, lit cigarette.  Each material is required to survive for an extended period without creating flames or overly smoldering or charring.  The previous version of the TB 117 standard also required an open flame test, which had been criticized for forcing manufacturers to use flame retardant chemicals.Continue Reading New National Standard for Flammability of Upholstered Furniture

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

As bicycles become a go-to social distancing option for consumers, we turn our attention in this Recalls in Review segment to an associated (and also closely regulated) product—bicycle helmets.  The CPSC mandates that all bicycle helmets manufactured or imported since March 17, 1995 meet the standard set forth in 16 CFR Part 1203.1(c).  This mandatory standard covers bicycle helmets and multipurpose helmets that can be used when riding a bicycle.  The standard does not cover helmets marketed for exclusive use in another designated activity, such as baseball or skateboarding.  (16 CFR Part 1203.4(b)).

The Commission has conducted 26 bicycle helmet recalls, with the first occurring in 1995 and the latest just last week.  CPSC attention to helmets remains fairly steady over time, with at least one recall most years, and no significant enforcement “spikes” at any point.

Continue Reading Recalls in Review: Bicycle Helmets