Companies take note: over the past month or so, the U.S. Consumer Product Safety Commission (CPSC) has issued four unilateral press releases instructing consumers to stop using a product. Since May of this year, that number rises to seven. If that number does not seem high, consider this: between 2011 and 2019—a nine-year period—the agency issued two. So, what exactly is a “unilateral press release” and what does the agency’s issuance of four over recent weeks mean for you?
This afternoon, CPSC Chairman Alexander Hoehn-Saric gave remarks to the annual conference of the International Consumer Product Health and Safety Organization (ICPHSO). As many of our readers know, the Senate confirmed Mr. Hoehn-Saric on October 7, 2021 to a six-year term. This was Hoehn-Saric’s first year addressing the annual ICPHSO conference.
Notably, Chairman Hoehn-Saric picked up right where then-Acting Chairman Robert Adler left off at the 2021 annual conference—the need for the agency to approach product safety from a variety of diverse viewpoints. The Chairman cited startling statistics concerning the significantly higher rates at which African Americans drown in swimming pools and minorities suffer from CO exposure from portable generators than their White counterparts. The Chairman stated that targeting underserved, often minority, communities would be a priority for the Commission in the months and years ahead. …
Continue Reading Live from ICPHSO – New CPSC Chairman Hoehn-Saric Addresses Annual Conference
Happy New Year! We hope that our readers had a very enjoyable and safe holiday season. Here’s a brief review of key developments concerning the U.S. Consumer Product Safety Commission (“CPSC”) from last month to help you stay aware of important product safety legislative and regulatory happenings.
CPSC Responds to Finnbinn’s Challenge on Infant Sleeper Rule. On December 17, the CPSC responded to Finnbinn’s challenge of its final rule applying the voluntary safety standard for inclined infant sleep products (ASTM F3118-17a) to all infant sleep products, including those that are “flat,” such as baby boxes and in-bed sleepers. In its responding brief, the CPSC asserts that Section 104 of the Consumer Product Safety Improvement Act, which requires the agency to study and develop safety standards for infant and toddler products, gives CPSC the authority to set such a standard, even where no existing voluntary safety standard exists. According to the CPSC, to decide otherwise would “allow inaction by a voluntary standard-setting organization to preclude action by the Commission.” The agency further argued that its rule was supported by sufficient evidence, citing 11 deaths and 16 injuries associated with flat sleep products over a two-year span, which it maintained was an undercount. The primary dangers of these products, according to the agency, are that they can fall when placed on other pieces of furniture, and that products without strength and stability requirements can lead to babies falling out of the sleepers. Of note, a trio of consumer advocacy groups filed an amicus brief urging the court to uphold the safety standard’s application to flat sleep products. We will continue to follow and report on this litigation.
Continue Reading CPSC Insights – December 2021
Here’s a brief review of three 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.
The CPSC Has a New Commissioner. On November 16, the United States Senate confirmed Richard Trumka Jr. to a seven-year term on the Commission by voice vote. Mr. Trumka Jr. will replace long-time Commissioner Robert Adler whose term expired last month. Importantly, with Mr. Trumka Jr.’s confirmation, the Commission will remain comprised of two Democratic (Hoehn-Saric and Trumka Jr.) and two Republican (Baiocco and Feldman) Commissioners. The Democrats will not have a majority on the Commission until current Biden nominee (and CPSC Executive Director) Mary Boyle is confirmed by the Senate—and the status of that nomination remains unclear. Ms. Boyle’s nomination is not on the Senate Commerce Committee’s “Nominations Hearing” agenda for December 1. You can read more about Mr. Trumka Jr.’s confirmation in our prior post about his confirmation.
Continue Reading CPSC Insights – November 2021
On Tuesday evening, the United States Senate confirmed Richard Trumka Jr. to a seven-year term on the Consumer Product Safety Commission (CPSC) by voice vote. Mr. Trumka Jr. will replace long-time Commissioner Bob Adler whose term expired last month. Importantly, with Mr. Trumka Jr.’s confirmation, the Commission will remain comprised of two Democratic (Hoehn-Saric and Trumka Jr.) and two Republican (Baiocco and Feldman) Commissioners. The Democrats will not have a majority on the Commission until current Biden nominee (and CPSC Executive Director) Mary Boyle is confirmed by the Senate—and the status of that nomination remains unclear.
Continue Reading Senate Confirms Trumka Jr. for Consumer Product Safety Commission; Adler to Retire After Twelve Year Run as Commissioner and Lifetime of Service to Agency
Mopeds fall within NHTSA’s jurisdiction when they can go over 20 mph and are meant to be used primarily on roads. They’re considered “motor-drive cycles,” which are a subset of motorcycles. In NHTSA’s world, a motorcycle is “a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground.” A motor-drive cycle is “a motorcycle with a motor that produces 5–brake horsepower or less.” Since these mopeds are regulated by NHTSA, they cannot be imported into or sold in the United States without complying with the FMVSS.
Since NHTSA is focused on vehicles meant for road use, one might wonder whether the use of bike paths changes NHTSA’s jurisdiction over mopeds. Ultimately, though, NHTSA is focused on speed. According to NHTSA’s published interpretations of its regulations, the agency “believe[s] that vehicles with speeds of over 20 mph are capable of on-road operation,” and therefore fall within their purview. NHTSA makes classifications for vehicles in interstate commerce. The classifications are meant to be as applicable in California as they are in Tennessee or Maine. Some cities may have ample bike lanes such that it would be reasonable for the bikes to never be used on roads, but most do not. NHTSA’s classifications will not change from location to location.…
As alluded to in last week’s post, Product Safety Regulations for Electric Bicycles and Scooters, micromobility products, such as e-bikes and scooters, fall at the intersection of jurisdiction between two distinct federal agencies: the Consumer Product Safety Commission (CPSC) and National Highway Traffic Safety Administration (NHTSA).
The CPSC is charged with protecting the public from unreasonable risks of injury or death associated with “consumer products.” “Consumer products” broadly defined includes any product for use in or around residences, schools and in recreation. CPSC’s jurisdiction expressly excludes “motor vehicles.”
NHTSA, which is charged with ensuring safety on public road ways, has jurisdiction over “motor vehicles.” “Motor vehicles” are “vehicle[s] driven or drawn by mechanical power manufactured primarily for use on public streets, roads, and highways, but does not include a vehicle operated only on a rail line.”
There is no hard-and-fast rule as to what constitutes a “motor vehicle” subject to NHTSA’s jurisdiction. Thus in determining whether a product is a “motor vehicle,” NHTSA typically considers such factors as:
- the product’s intended use;
- the product’s use of the public roadways and how incidental or predominant that use tends to be;
- how the product is marketed;
- the kinds of dealers that sell the product;
- how or whether dealers may certify or register the product; and
- the product’s speed.
Recalls in Review: A monthly spotlight on trending regulatory enforcement issues at the CPSC.
As we launch into the third quarter of 2020, we are taking a look at the trends from the CPSC’s recalls through the first half of the year. The Commission has conducted 145 total recalls so far this year. As is usually the case, the types of products recalled have varied widely, including ceiling fans, cleaning products, furniture, inclined sleepers, portable generators, pajamas, and strollers. But some product categories have appeared multiple times, including: Dressers and Drawer Chests, Essential Oils, and Recreational Vehicles such as ATVs, UTVs, and Golf Carts.
In 2020 so far, Dressers, Drawer Chests, and Essential Oils have seen an increase in number of recalls as compared to recent years. Recreational Vehicles have historically been highly regulated, however, and the rate of recalls conducted in 2020 is comparatively similar to past years.
On Wednesday, Ann Marie Buerkle made a surprise announcement that she is withdrawing her nominations to serve as the Chairman of the U.S. Consumer Product Safety Commission (CPSC), and to serve an additional seven year term at the agency. As noted in an earlier post, President Trump re-nominated Buerkle in January of this year…
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…