Join Us For A Complimentary Webinar – Thursday, October 25, 2018 – 12:00 – 1:00 PM ET

Two years into the Trump Administration and:

  • The Consumer Product Safety Commission finally has a Republican majority,
  • the Department of Transportation has released its 3.0 guidance on autonomous vehicles,
  • NIST has published a 375 page recommendation on medical device security,
  • the FTC is holding a series of hearings on the transformative nature of the digital transformation on markets.
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What does all this activity in the United States mean for companies following the rapidly evolving regulations globally related to the safety and security of products?

This PLAC webinar will describe the current landscape at the federal agencies setting policy for product safety and security. With all the recent talk of regulatory humility in the face of great technological change, we’ll discuss whether regulators practice what they preach and if recent actions encourage or stifle innovation. Our session will compare and contrast activities across the federal government relevant to consumer products broadly defined with a particular focus on product safety and security.

Presenters:

Cheryl Falvey, Partner, Crowell & Moring, Washington, DC
John Fuson, Partner, Crowell & Moring, Washington, DC
Peter Miller, Senior CounselCrowell & Moring, Washington, DC

Please click here to register for this webinar.

On Monday, President Trump nominated Ann Marie Buerkle, who has served as Acting Chair of the U.S. Consumer Product Safety Commission since February 9, 2017, to serve as permanent Chair of the Commission.  The appointment is for a term of seven years beginning on October 27, 2018 when her current term expires.  Acting Chair Buerkle’s statement on her nomination can be read here.

This nomination must be confirmed by the Senate.  Even if confirmed expeditiously (and that is a big if), the current minority-majority political dynamic at the Commission will not change until President Trump is able to appoint a third Republican Commissioner once Commissioner Marietta Robinson’s term expires in October later this year.

Acting Chair Buerkle’s regulatory philosophy and priorities for the Commission have been well documented, including in our prior blog posts.  In fact, she reiterated some of those thoughts as they pertain to product recalls in opening remarks at the CPSC’s Recall Effectiveness Workshop yesterday, July 25.  Acting Chair Buerkle stated that the Commission and its staff:

  • need to continue engaging all product safety stakeholders and listen to ideas, problems, and solutions concerning product recalls;
  • should not have a “one size fits all” approach to product recalls;
  • should not expect recalling companies to bankrupt themselves in undertaking a voluntary product recall; and
  • should look at proportionality and risk when effectuating a product recall.

Acting Chair Buerkle concluded her remarks by stating that the most effective way to prevent consumer injury is not through product recalls, but through preventing unsafe products from entering the market in the first instance.

We expect Acting Chair Buerkle to be confirmed in the coming months and wish her congratulations on the nomination.  

Photo Credit: ICPHSO
Photo Credit: ICPHSO

The International Consumer Product Health and Safety Organization’s 2017 Annual Meeting & Training Symposium is being held February 20-23, 2017 in Orlando, Florida. The theme for this year’s meeting is “Evaluating & Managing Risk.”

Cheryl Falvey, former general counsel of the Consumer Product Safety Commission (CPSC) and partner in the Advertising & Product Risk Management Group, is speaking on February 22nd. Her session is entitled “Practical Lessons In Identifying Risk, Using Effective Tools to Manage It, and Using Data to Meet Regulatory Obligations – In Other Words, How to Stay Out of Trouble!” Cheryl will sit on a panel of industry representatives, all of whom have previously work at CPSC. This panel will provide both the industry perspective as well as insights from the panelists based upon their experiences at CPSC on what one might expect from the regulatory agency responsible for product safety.

Key topics will include:

  1. Guidance and tools that exist to assist industry officials in identifying reportable safety issues at the earliest possible moment to avoid late reporting and exposing consumers to an avoidable risk.
  2. Development of a comprehensive internal compliance program to identify risks and/or defects before they can do harm to your customer.
  3. Use of available systems to assist you in identifying risks/defects.
  4. Understanding what data to collect and review to assist in making appropriate determinations and when to actually report information to CPSC.

To register for the ICPHSO 2017 Annual Meeting & Training Symposium, please visit the main event page.

Photo credit: Flickr

Retailers and consumer products companies need to be aware of a new law affecting negative online reviews. On December 14, 2016, President Obama signed the Consumer Review Fairness Act of 2016 (H.R. 5111) into law. The Act voids “non-disparagement clauses” in form contracts designed to prevent consumers from posting negative comments and online reviews of products and services. The Act also makes it unlawful for companies to include these clauses in their form contracts. The Federal Trade Commission will enforce the Act in the same way it enforces against unfair or deceptive trade practices under its jurisdiction; state attorneys general may also enforce the Act under certain conditions. For existing contracts, the Act will take effect in 90 days and FTC/state enforcement may commence one year from now.

Continue Reading Consumer Review Fairness Act of 2016 — Beware of the Negative Online Review

Cheri Falvey - Crowell & Moring partner and co-chair of the firm’s Advertising & Product Risk Management Group

Consumer safety is increasingly on the minds of government regulators and consumer product companies. In a three-part video series, Cheri Falvey, Crowell & Moring partner and co-chair of the firm’s Advertising & Product Risk Management Group, as well as former general counsel of the CPSC, breaks down risk mitigation strategies that consumer products companies should consider as part of their compliance programs.

In these two-minute videos, Cheri goes over common mistakes that companies can make in meeting their regulatory compliance obligation, what corporate officers can do to avoid enforcement action, and how to minimize the risk of litigation during a product recall, amongst other considerations. Click here to view this video alert and to access a transcript on Crowell.com. Each video is also embedded at the bottom of this post.

Continue Reading VIDEO: Risk Mitigation Strategies and Compliance Programs for Consumer Product Companies

In January 2014, a blind patron sued Lucky Brand Jeans for discrimination when he was not able to use Lucky Brand’s point-of-sale (“POS”) device to independently complete a debit purchase because the visual touch screen on the POS was not discernible to blind individuals. The plaintiff filed a class action under title III of the Americans with Disabilities Act (“ADA”) in the U.S. District Court for the Southern District of Florida. Recently, the Department of Justice (“DOJ”) filed a Statement of Interest in this case in response to two arguments advanced by Lucky Brand in a motion to dismiss.

Lucky Brand argued that: (1) there is no requirement within the ADA and its regulations mandating that the POS devices have the capabilities requested by the plaintiff; and (2) since blind customers can purchase items by using cash, credit, or by processing their debit card as a credit card, there was no discrimination under the ADA merely because the plaintiff could not use the POS device to use his debit card as a debit card.

Continue Reading DOJ’s Recently Articulated Position on the Accessibility of Point-of-Sales Devices

On July 27, 2012, California released a revised draft of its Safer Consumer Products Regulations—commonly known as the "Green Chemistry Initiative." The proposed regulations establish a process for California’s Department of Toxic Substances Control (DTSC) and product manufacturers to assess whether consumer products containing certain "chemicals of concern" can be made with safer ingredients. Once implemented, the regulations will empower DTSC to order companies to use substitute chemicals when manufacturing certain consumer products or face a ban on the sale of those products in California. Moreover, manufacturers that currently sell products only outside of California will have to be increasingly vigilant about whether their products end up being sold in California, and subject to these regulations.

Manufacturers, importers and retailers of consumer goods—defined as "responsible entities"—should be aware of that:

  • All consumer products will be impacted: Regardless of whether the product is named a “priority product” by DTSC or contains one of the 1,200 “chemicals of concern,” responsible entities will be required to provide information on the source, ingredients, and toxicity characteristics of each of their consumer products sold in California. Responsible entities with a "priority product" in the stream of commerce will have a heightened obligation to produce detailed reports—known as "alternatives assessments"—to DTSC, which DTSC will use to determine whether manufacturers will need to reformulate certain products to continue sales in California. Companies that do not comply will be named on a publicly accessible "failure to comply" list on DTSC’s website.
  • All entities in the distribution chain should remain vigilant: While the obligations for responsible entities under the regulations are tiered, no level of commerce is exempt. Primary reporting and compliance responsibility will lie with the manufacturer. The importer will have responsibility if the manufacturer fails to comply, and retailers will be required to comply only if the manufacturer and importer (if any) fail to comply. Retailers will be responsible for tracking information posted on a "Failure to Comply" list on DTSC’s website, and ensuring compliance for listed products.

The proposed regulations are presently undergoing a 45-day public comment period. DTSC intends to issue final regulations by the end of this year or early 2013. DTSC will hold a hearing on the proposed regulations on September 10, 2012, and written comments are due by September 11 at 5 PM PST.

For more information and to read the full client alert, please click on this link.

Content for this post was provided by the following product risk management attorneys: Kevin C. Mayer (partner in Crowell & Moring’s Los Angeles office), Monica M. Welt (counsel in Crowell & Moring’s DC office), and Lynn R. Levitan (counsel in Crowell & Moring’s Los Angeles office). 

The U.S. Consumer Product Safety Commission (“CPSC”) just announced a giant leap forward in its effort to protect U.S. consumers against defective products manufactured in China. To combat the increasing frequency with which hazardous Chinese consumer products enter the United States, on January 10, 2011, the CPSC opened an office in China. The CPSC hopes that this new office will promote more effective communication with its Chinese counterpart – the General Administration of Quality Supervision, Inspection and Quarantine of the People’s Republic of China (“AQSIQ”) – allowing the CPSC to adopt a proactive approach to product safety with respect to Chinese imports. The agency’s proactive and preventative approach to product safety should also benefit U.S.-based retailers who often bear the expense of recalling defective products that originate in China, yet are left without recourse against the products’ Chinese manufacturers.

Continue Reading The CPSC Leaps Into China