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Consumer Product Matters

A product safety and consumer related regulation and litigation blog

Marc Schoem, CPSC’s Longtime Deputy Director of Compliance, Retiring After 40 Years at CPSC; Becoming New ICPHSO Head

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

Marc Schoem CPSCThe consumer product safety community is a tight knit one and no one is better known or influential in the community than Marc Schoem. Marc has spent much of his 40 years at the CPSC as a key player in the Office of Compliance. Given Marc’s experience, professionalism, and ability to work well with all CPSC stakeholders, it’s an understatement to say his departure is a huge loss for the agency.

A previous post discussing Marc described him as one of the major ambassadors for the agency. In reality, Marc has served as the heart of the CPSC and his tenure of public service at the agency likely will never be matched.

Marc always put the CPSC’s core mission foremost—consumer safety and removing dangerous products from the market—and his reputation and style have been consistent in that regard. Companies and their counsel may not have always agreed with him—or he with them—but Marc always seemed to find a way to reach an effective resolution.

Given his longtime commitment to product safety and institution building, it should come as no surprise that Marc has accepted the position as Executive Director of the preeminent consumer product safety organization, the International Consumer Product Health and Safety Organization (commonly referred to as ICPHSO). As many readers of this blog know, ICPHSO is a non-profit organization “dedicated to providing forums for the exchange of ideas and information on health and safety issues related to consumer products that are manufactured and marketed in the global marketplace.”

Marc has been an active leader within ICPHSO since its founding in 1993 and he has helped build it into what is now a one-of-kind institution for the diverse array of consumer product safety stakeholders from across the world to freely communicate and get to know each other as people. Without his continued support as the CPSC representative to the organization it may not have been as successful as it is today.

In an ICPHSO press release announcing his new role, Marc said: Continue Reading

FDA Releases Two Final Food Safety Rules: What You Need to Know

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

Food scientists at work in the labProgress on Final Rules implementing the Food Safety Modernization Act (FSMA) took a significant step forward last week when FDA released its first two, comprising the final rules on Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food and Food for Animals.

The final rule on Preventive Controls for Human Food creates and revises requirements for covered food facilities in three ways.  The final rule: Continue Reading

CPSC Suspends Over 90% of $3.5 Million Civil Penalty Due to Company’s Inability to Pay; phil&teds USA to Pay $200,000

Posted in Children's Products, Consumer Product Safety, Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), CPSC Civil Penalties, CPSC Enforcement Actions, Federal Regulations, Litigation

phil&teds civil penalty for failure to report defective clip on high chairsAt the very beginning of this year, we wrote that we expected the CPSC to remain active in bringing enforcement actions against companies for violations of the Consumer Product Safety Act (CPSA). About one month later, CPSC Chairman Elliot Kaye remarked at a product safety conference (ICPHSO 2015) that he was directing staff to seek significantly higher civil penalties against companies for such violations as provided for in the Consumer Product Safety Improvement Act. Since the beginning of the year, the CPSC has levied close to $25 million in total civil penalties against multiple companies for alleged reporting violations of product safety hazards—significantly more than any previous year.

Last week, the CPSC announced that phil&teds USA (“phil&teds”) agreed to pay $3.5 million to settle charges that it knowingly failed to report a product defect and unreasonable risk of serious injury to the Commission stemming from its “MeToo high chair.” Notably, in a rare occurrence and as part of the settlement agreement, the Commission agreed to temporarily suspend all but $200,000 of the $3.5 million civil penalty.

In doing so, the Commission relied upon phil&teds’ representations through financial statements that it has insufficient cash or other liquid assets to satisfy a civil penalty payment in excess of $200,000 without ceasing business operations. The company will be obligated to pay the suspended portion of the civil penalty if it fails to pay the non-suspended $200,000 payment or otherwise breaches its duties to implement an internal compliance plan and accurately report information to the Commission. Continue Reading

Legislative Action to Remove Microbeads from Personal Care Products Intensifies

Posted in Drugs & Cosmetics, Federal Regulations, Manufacturer Product Safety, State Consumer Protection Laws, State Regulations, U.S. Congress

The International Campaign Against Microbeads in Cosmetics is most likely celebrating this week, following the California State Legislature’s passage of a bill that would prohibit the use of plastic microbeads in personal care products after January 1, 2020.  The bill, AB 888, now heads to Governor Jerry Brown’s desk for his signature.  Although several states already have similar legislation on the books (Maryland, for example), California of course is the largest and most economically significant of those jurisdictions to legislate a ban on microplastics in personal consumer products.

Microbeads, usually made from non-biodegradable polyethylene, are used in personal care products such as body wash and facial scrubs to add exfoliating properties.  In recent years, as the potential for adverse environmental, wildlife, and health consequences of microplastics has become more clear (the beads are too small to be filtered out by wastewater treatment plants, so they end up being discharged into lakes, rivers, and oceans), some manufacturers have begun voluntarily removing the ingredient from their personal care products.  The impetus for industry action came after Unilever announced in December 2012 that it would phase out plastic in all of its products worldwide by 2015; since that time Colgate-Palmolive and Johnson & Johnson have joined the pledge, along with many smaller companies.  The pledge to remove these microplastics also has been taken up by private-label manufacturers and distributors of certain personal care products, including Target and others.

In addition to state policymakers and legislators, the U.S. Congress is taking note of the emerging science and environmental advocacy in this area.  The bipartisan Microbead-Free Waters Act of 2015 (H.R. 1321) was introduced this year by Chairman and Ranking Member of the House Energy and Commerce Committee, Reps. Fred Upton (R-Mich.)  and Frank Pallone (D-N.J.), respectively, and it is currently listed as having 34 cosponsors.  Companion legislation has also been introduced in the Senate by Kirsten Gillibrand (D-N.Y.); that identical bill (S. 1424) is currently listed as having 7 cosponsors.  The Microbead-Free Waters Act would effectively ban microplastics from personal care products after January 1, 2018, by deeming any cosmetic that contains them to be adulterated under the Federal Food, Drug, and Cosmetic Act.  The Personal Care Products Council, the industry’s primary trade association, noted in May testimony to the House E&C Committee that a uniform federal standard would be preferable to state-by-state action and that non-prescription drugs that contain microbeads should be included along with cosmetics in any such legislation.

We will update our readers of any developments related to federal action to remove plastic microbeads from the marketplace.

What’s in a Name? When You’re Selling a Food with an Established Federal Standard of Identity, a Whole Lot!

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

Just MayoA bluntly labeled section of the Code of Federal Regulations – “Mayonnaise” – provides a description of this particular food dressing, the food’s required ingredients, optional ingredients, and how to declare those ingredients.  The goals of this and other standardized food definitions are to prevent economic fraud on consumers (and between supply chain partners), avoid unfair competition through false or misleading statements, and maintain the general quality of the country’s food supply.  In August, FDA reinforced to members of the food industry that long-standing regulations governing standardized foods exist for a reason and should be taken into account even when developing new and innovative products.

The Agency issued a Warning Letter to Hampton Creek Foods, Inc., an up-and-coming vegan food company that created “Just Mayo” – which uses canola oil instead of eggs and is marketed as an sandwich spread alternative to traditional mayonnaise, and which was launched in late 2013.  Just Mayo was cited for not meeting the standard of identity for mayonnaise products found at 21 C.F.R. § 169.140.  Specifically, FDA noted that: Continue Reading

California Joins rest of Country in “Made in USA” Rules

Posted in Advertising, Consumer Product Safety, Federal Regulations, Federal Trade Commission (FTC), Manufacturer Product Safety, State Regulations, State Unfair Competition Laws

Made in the USA LabelingCalifornia, the beacon of individualism and often marching to its own set of rules, has joined the rest of the country as Gov. Jerry Brown has signed SB 633 which revises California’s take on what constitutes “Made in USA”.

Up until this week, existing California law prohibited the sale or offering for sale in the state of any merchandise in which the words, “Made in U.S.A.,” “Made in America,” “U.S.A.,” or similar words appeared on the label when the merchandise or any article, unit, or part thereof, has been entirely or substantially made, manufactured, or produced outside of the United States.  (Read our previous post on the California, the FTC and Made in the USA Claims here.) An epidemic of consumer class actions had been launched in the past several years claiming that this law was violated by California manufacturers and retailers even though the products met Federal and other state requirements for the proper use of “Made in USA labeling. Continue Reading

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?

Continue Reading