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Consumer Product Matters

A product safety and consumer related regulation and litigation blog

Are “Personal Flamethrowers” Under the Jurisdiction of the CPSC?

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC)

Personal FlamethrowersYes. You read that correctly. Two US companies are selling personal flamethrowers to the public. Once grisly weapons of war, the flamethrowers are now being marketed for more practical purposes such as clearing brush and snow, incinerating weeds between cracks on the driveway, controlled burns, insect control and, of course, having fun.

One of the flamethrowers sprays flames up to 50 feet and uses a hose connected to a backpack that holds a tank containing a mixture of diesel and gasoline fuel. You can also buy napalm mix to make the flames shoot even farther. The second flamethrower has a fuel can mounted on the device to make it handheld and sprays flames up to and beyond 25 feet.

So are these flamethrowers legal? Are they federally regulated? Continue Reading

FDA Sends Warning Letter for Kim Kardashian’s Instagram Post

Posted in Food & Drug Administration (FDA)

On Mintz Levin’s Health Law and Policy Matters blog, our colleague Joanne Hawana discussed the August 7 Warning Letter sent by FDA to the drug company Duchesnay, Inc., after Kim Kardashian praised the company’s morning sickness pill Diclegis in an Instagram post. Continue Reading

CPSC Major ‘Repair Program’ Is Not Labeled A ‘Recall’

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), CPSC Product Recals, Federal Regulations, Voluntary Recalls

CPSC Article Law 360 copy[This article originally appeared on Law360 on August 7, 2015 and updates our prior post on this CPSC corrective action]

On July 22, 2015, the U.S. Consumer Product Safety Commission and major furniture company IKEA jointly announced a “repair program” to address the serious and complex hazard of furniture tip-over posed by 27 million chests and dressers sold by the company. The repair program offers free wall anchoring repair kits so consumers can secure the chests and dressers to the wall to reduce the likelihood of a furniture tip-over incident.

If you were not looking for it, then you could have easily missed that the announcement did not contain the word “recall.” The corrective action is also not included in CPSC’s recall announcement list and is not listed as a recall on agency’s saferproducts.gov public database.

So why is this significant? Continue Reading

Does CPSC or FDA Have Jurisdiction Over Your Consumer Product?

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), Drugs & Cosmetics, Federal Regulations, Food & Drug Administration (FDA), Food and Beverage, U.S. Congress

Consumer Product JurisdictionAs our readers know, we write about legal developments that affect companies involved in manufacturing, importing, distributing, and/or selling “consumer products.” In many cases, these products fall squarely within the jurisdiction of the Consumer Product Safety Commission (CPSC).

But when is a so-called consumer product not regulated by the CPSC? Or, when does the CPSC have coterminous jurisdiction with another federal agency over a consumer product, or even jurisdiction over some aspect or a component of that consumer product?

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U.S. House Passes GMO Labeling Legislation

Posted in Advertising, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, Product Liability

GMO Legislation

Today the Safe and Accurate Food Labeling Act of 2015 passed the House, in a vote of 275 to 150 (more information here). Still a hot-button issue, opposition to the Act is emotionally charged, with those opposed to the bill calling it the “DARK” Act (Denying Americans the Right to Know Act). Supporters of the bill, including farm, biotech, food, and beverage companies, argue mandatory labels would be expensive for companies and confusing for consumers.

H.R. 1599 stops states from mandating food labels on GMO products. The bill also calls for the creation of a voluntary USDA certification process for GMO-free foods and for FDA to regulate “natural” claims used on food labels. Groups advocating for labeling maintain that people should know what is in their food; since FDA already requires labeling of over 3,000 ingredients, additives, and food processes, GMOs should be no different. Supporters of Representative Pompeo’s (R-KS) bill, however, point to the dearth of any credible evidence showing foods produced with biotechnology pose any risks to health or safety.

The Associated Press reports that Senator Hoeven (R-ND) will introduce a companion to the Pompeo bill following the August recess. The Senate bill would put emphasis on amending federal agriculture laws, not food safety laws, to preempt state labeling efforts on GMOs. It will also emphasize a USDA GMO-free certification program and delineate how USDA’s Agriculture Marketing Service would oversee this effort, preempting any labeling by states that do not follow the same rules. Given the controversy surrounding GMOs, especially partisan divisions on state pre-emption and the “dangers” of genetic engineering, it remains to be seen if such legislation will be able to pass.  As always, we will keep an eye on the situation.

Shifting CPSC Recall Landscape? Agency Announces Major “Repair Program” that is not Labeled a “Recall”

Posted in Consumer Product Safety Commission (CPSC), CPSC Product Recalls, Federal Regulations, Voluntary Recalls

Ikea Product IssueYesterday the CPSC and major furniture company IKEA jointly announced a “repair program” to address the serious and complex hazard of furniture tip over posed by 27 million chests and dressers sold by the company. The repair program offers free wall anchoring repair kits so consumers can secure the chests and dressers to the wall to reduce the likelihood of a tip-over incident (more background on furniture tip over and wall-anchoring here).

If you weren’t looking for it, then you could have easily missed that the announcement did not contain the word “recall.” Nor was it included in the CPSC’s recall announcement list (though it is currently listed as a “recall” on saferproducts.gov).

So why is this significant? Continue Reading

The Patchwork Solidifies: GMO Bill Moves Forward in the House

Posted in Federal Regulations, Food & Drug Administration (FDA), Food and Beverage, Litigation, Product Class Actions, State Consumer Protection Laws, U.S. Congress

GMA lawsuit GMO labeling VermontThe proposed Federal regulation of GMOs is proceeding. Following the White House’s recent action on GMOs, Representative Pompeo’s “Safe and Accurate Food Labeling Act” (H.R. 1599) was passed by the House Agriculture Committee on July 14.

The Pompeo bill is an attempt to preempt a patchwork of state regulations on GMOs. More specifically, the legislation: Continue Reading

Hidden Costs of Common Beauty Treatments?

Posted in Consumer Product Safety, Drugs & Cosmetics, Food & Drug Administration (FDA), Litigation, Manufacturer Product Safety, Product Class Actions, Product Liability, Retailer Product Safety, State Consumer Protection Laws

Nail Salon ProductsThe “toxic trio” is a foreboding name some associate with common and seemingly innocuous manicures and pedicures. Salon workers suffer higher-than-average rates of birth defects, miscarriages, cancers, and skin afflictions stemming from their daily use of nail products, many of which contain potentially harmful chemicals. A New York Times exposé on the health conditions affecting nail salon workers has thrust this issue, which exists largely outside FDA’s authority, into the regulatory spotlight.

The toxic trio refers to the following three chemicals:  Continue Reading

GMOs in the Hotseat: White House to Overhaul Regulatory Framework on Biotechnology

Posted in Federal Regulations, Food & Drug Administration (FDA), Food and Beverage

Last week, the White House waded into the GMO regulatory fray with the Office of Science and Technology Policy’s (OSTP) announcement of a major overhaul of GMO regulation.

In a statement released July 2, OSTP noted that the current regulatory system for “biotechnology products” (defined for this purpose as products created through genetic engineering of plants, animals, and microbes), governed by the Coordinated Framework for the Regulation of Biotechnology (CF), creates “unnecessary costs and burdens.”  It also is difficult for laypeople to understand, thus undermining public confidence in the safety of such products.  The White House science advisors are calling for an “update of the CF […] to facilitate the appropriate Federal oversight by the regulatory system and increase transparency, while continuing to provide a framework for advancing innovation.”

Under the current Framework, USDA, EPA, and FDA rely on their traditional statutory authorities and roles to regulate biotechnology products: USDA has authority to approve all releases of GMOs to ensure they don’t create an environmental hazard; EPA must approve all crops that contain insect-killing genes; and FDA is responsible for evaluating whether GMOs are safe to eat.  In some cases the jurisdictional lines have been unclear, and new technological advancements are making possible developments that were not conceived when the original CF was issued in 1986 (or revised in 1992).

To begin improving predictability, increasing efficiency, and reducing uncertainty in the regulation of biotechnology products, OSTP’s memo laid out the following one-year objectives for a new Biotechnology Working Group:

  1. Develop an updated CF to clarify the roles and responsibilities of USDA, EPA, and FDA in regulating biotechnology products;
  2. Formulate a long-term strategy to ensure that the Federal regulatory system is equipped to efficiently assess the risks, if any, associated with future products of biotechnology while supporting innovation, protecting health and the environment, promoting public confidence in the regulatory process, increasing transparency and predictability, and reducing unnecessary costs and burdens; and
  3. Commission an external, independent analysis of the future landscape of biotechnology products (to be undertaken by the National Academies).

The Biotechnology Working Group will consist of representatives from the three affected Federal agencies and the Office of the President.  The recent memo also announced three public listening sessions, starting with one in Washington, D.C., in the Fall of 2015, to seek input on the best ways to clarify the current roles and responsibilities of the USDA, EPA, and FDA in the regulatory process. The updated CF will also undergo public notice and comment before it is finalized.

Meanwhile, the tide of GMO legislation at the Federal and State continues, with Representative Pompeo’s “Safe and Accurate Food Labeling Act” (H.R. 1599) continuing to gain momentum in the House and a companion bill expected shortly in the Senate.

What is CPSC’s Fast Track Recall Program and When Should Companies Utilize It?

Posted in Consumer Product Safety, Consumer Product Safety Commission (CPSC), CPSC Product Recalls, Manufacturer Product Safety, Private Labeler Product Safety, Product Liability, Retailer Product Safety, Supply Chain Risk Management, Voluntary Recalls

US CPSC Fast Track Recall ProgramSo what is the CPSC’s “fast track recall” program and what is the benefit of participating in it? What is a “stop sale notice” and why does the CPSC generally request it for fast track recalls? What else is required by the CPSC in order to participate in the program and what are the potential downsides? When should a company utilize fast track? These are common questions for companies who believe they could have a product safety issue and are already seriously considering a voluntary recall.

What is the CPSC “Fast Track Recall” Program?

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