Consumer Product Matters

A product safety and consumer related regulation and litigation blog

Vermont Goes GMO Alone

Posted in Civil & Criminal Penalties, Food and Beverage, Retailers, State Consumer Protection Laws, State Regulations

In January, this space discussed the Maine and Connecticut laws that would require labeling for foods made with geneticially engineered ingredients (GMOs). Each of the bills had a trigger qualification: 4 other states, or states with a combined population of 20 million, had to adopt similar measures. In the spirit of the bandits in The Treasure of the Sierra Madre, Vermont’s senate passed a GMO labeling bill that goes into effect without any “stinkin’ other states.”

Certain foods retailed after July 1, 2015 that contain GMOs will require labels. The labeling requirement is triggered if the GMOs present in the food are more than 0.9% of the total weight of the food. The required labeling must conspicuously state on either the front or back label that the food “may be partially produced with genetic engineering.”

The label would also include a disclaimer that the Food and Drug Administration does not consider foods produced from genetic engineering to be materially different from other foods.

Exempt foods include: Continue Reading

4th Circuit Unmasks Company Doe & Unseals Entire Record in CPSC Database Case

Posted in Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA)

Yesterday, the U.S. Court of Appeals for the Fourth Circuit rather forcefully reversed one of the key rulings of Maryland District Court Judge Alexander Williams, Jr. in the recent litigation involving the CPSC’s public database. The Fourth Circuit ruled in favor of several consumer advocacy organizations and media outlets who appealed Judge Williams’ decision to seal nearly the entire court record from the public and allow the company that brought the lawsuit to litigate the case under the pseudonym “Company Doe.” Judge Henry Floyd, writing for the panel, succinctly summarized the most important aspect of the 64 page opinion, stating: Continue Reading

Product Safety Update from Capitol Hill (Part Two)

Posted in Advertising, Consumer Product Safety Commission (CPSC), Federal Trade Commission (FTC), U.S. Congress

Earlier this year, we began a series of blog entries to update our readers on legislative efforts on Capitol Hill that affect stakeholders within the product safety arena.

One such legislative effort is a bill introduced by Senator Amy Klobuchar (D-MN) to support initiatives to curtail deaths caused by carbon monoxide poisoning.  That legislation, known as the “Nicholas and Zachary Burt Memorial Carbon Monoxide Poisoning Prevention Act” (S. 1793),would require the CPSC to establish a grant program to provide assistance to states and local governments in educating the public on the dangers of carbon monoxide and installing safe detectors in homes.

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CPSC Announces Forman Mills Civil Penalty and Compliance Program

Posted in Civil & Criminal Penalties, Consumer Product Safety Commission (CPSC), Consumer Products, Federal Enforcement, Litigation, Retailers

For the first time in nearly a year, a unanimous U.S. Consumer Product Safety Commission (“CPSC”) announced that a company will pay a hefty civil penalty and enact a strict compliance program to resolve allegations regarding its reporting practices.  This announcement comes almost one year after three similarly structured civil penalties were levied by the CPSC against Ross Stores, Kolcraft and Williams Sonoma.  Importantly, the settlement reached with the New Jersey-based, clothing retailer Forman Mills, like the ones entered into last year, mandates the implementation and maintenance of a comprehensive compliance program.  This recent trend continues to be a notable, and controversial, one.

Specifically, the settlement agreement announced this week resolves charges by CPSC staff that Forman Mills, a retailer of lower-priced designer clothing, failed to report timely its sale of banned children’s upper outerwear containing drawstrings between June 2007 and February 2010.  The sale of some of these garments took place while the company negotiated a prior settlement with the CPSC to resolve similar charges in 2009.

Perhaps most notably, in addition to paying a $600,000 fine, Forman Mills has agreed in the settlement to implement and maintain a comprehensive compliance program designed to ensure the company’s compliance with safety standards for these garments.  The program will include the following elements:

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Kaye & Mohorovic CPSC Confirmation Hearing Set for April 8th

Posted in Consumer Product Safety Commission (CPSC)

The rumor is now confirmed. The U.S. Senate Committee on Commerce, Science, and Transportation officially announced it will hold the confirmation hearing for CPSC Chairman nominee, Elliot Kaye, and Commissioner nominee, Joe Mohorovic, next Tuesday, April 8th at 2:30pm. This is a very quick turn-around for Kaye in particular, who will have only been the Chairman nominee for eleven days prior to the hearing. Many believe the move to hold a hearing this quickly indicates both nominees should have a clear and quick path forward to confirmation by the full Senate. That would not be a surprise given the praise both nominees have drawn from CPSC’s major stakeholder groups.

Kaye and Mohorovic will be on the second panel of nominations planned for the hearing. The first panel is for Vice Admiral Paul F. Zukunft, who is nominated to be Commandant of the United States Coast Guard. The hearing will be webcast live and is being held in Room 253 of the Russell Senate Office Building.

Elliot Kaye Nominated as New Chairman of the CPSC

Posted in Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), U.S. Congress

The long awaited announcement of a new CPSC Chairman is finally here. After more than a year of speculation and intrigue, the search ended right where it started today when President Obama announced that Elliot Kaye is his nominee to become the next Chairman of the CPSC.

Having previously served with Elliot in former Chairman Inez Tenenbaum’s office, I am not the least bit surprised that the President chose him to lead the agency. If you have ever had the chance to meet Elliot, you understand why. Elliot’s results-oriented and innovative leadership style over his years at the CPSC has served as the driving force behind many of the agency’s most collaborative and successful initiatives.

One of the best examples was his ability to coalesce the leading organizations and companies in football around a common goal: to address the serious issue of brain safety by creating a culture change in youth football through education and training. Here’s the CPSC’s description of a program that is emblematic of Elliot’s leadership style: Continue Reading

Senate Bill Would Expand Current Phthalates Prohibitions

Posted in Consumer Product Safety Commission (CPSC), Consumer Product Safety Improvement Act (CPSIA), Consumer Products, U.S. Congress

Earlier this year, we blogged about Senator Kirstin Gillibrand’s (D-NY) announcement that she planned to introduce legislation expanding the scope of Section 108 of the Consumer Product Safety Improvement Act (“CPSIA”).  That section of the CPSIA makes children’s toys and child care articles subject to a ban on certain phthalates.  Phthalates are a group of chemicals that are used frequently to make vinyl and other plastics soft and flexible.  Their use in products, specifically children’s toys, has received much attention in recent years, similar to that of Bisphenol-A (BPA).

On March 12, 2014, Senator Gillibrand introduced new legislation (S.2120) in the Senate expanding the prohibition on the manufacture, distribution, and importation of certain products containing phthalates.

Specifically, the legislation amends Section 108 to apply more broadly to “children’s products,” rather than to just “children’s toys or child care articles.”  The legislation also adds the three temporarily prohibited phthalates to the list of those permanently banned.  The three phthalates added—DINP, DIDP and DnOP—are currently prohibited on an interim basis under the CPSIA pending further examination by a CPSC appointed Chronic Hazard Advisory Panel (“CHAP”).

It is noteworthy that this bill has been introduced before the CHAP has completed its work.  The CHAP is currently studying the effects on children’s health of all phthalates and phthalate alternatives used in children’s toys and child care articles.  This bill is essentially an end-run-around the recommendation of the CHAP on whether the temporary prohibition should become a permanent one and the scope of the products that should be covered.  Not only does the legislation expand the list of phthalates permanently banned under the law, but it also greatly expands the scope of products covered by Section 108.

While we do not think the bill will become law, we did want to apprise our readers of its introduction in the Senate as it is one of the more significant proposed amendments to the CPSIA introduced in some time.  No companion bill has been introduced to date in the House of Representatives.

The Fitbit Recall: Is a “One Size Fits All” Approach the Most Effective Way to Remedy Potential Hazards?

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

Last week, the U.S. Consumer Product Safety Commission (CPSC) issued a voluntary recall notice for the popular wireless, activity-tracking wristband Fitbit Force.  Fitbit’s wristband allows consumers to monitor and measure certain personal fitness activities such as sleep habits and the number of steps one takes in a day.  But, according to the CPSC’s press release, a very small percentage of users of the Fitbit Force wristband can develop “allergic reactions to the stainless steel casing, materials used in the strap, or adhesives used to assemble the product, resulting in redness, rashes or blistering where the skin has been in contact with the tracker.”

In this case, all users of the popular wristband have been instructed to stop using the product immediately and seek a refund from Fitbit even if they have not experienced an allergic reaction (the Fitbit Force wristband is sold at retail for approximately $130).  However, as San Francisco’s local ABC News reported just this week, a “stop use and return the product” remedy without exception or nuance can have unintended consequences and result in a public backlash.  Many users who have not experienced an allergic reaction to the Fitbit did not understand why they were being asked to give up the product – and many refuse to do so.

The ABC News report quoted consumer reactions to the recall, including Fitbit users who do not plan on seeking a refund and responded to the CPSC instruction to stop using the product and return it by saying:  Continue Reading

California Names First Consumer Products for Green Chemistry “Priority Products” List

Posted in Product Liability, Prop 65, State Consumer Protection Laws, State Product Safety Laws, State Regulations, Supply Chain Risk Management

Recently, we have informed our readers of product safety legislative and regulatory initiatives, including green chemistry programs, driven at the state level.  One of these important state regulatory initiatives is California’s Green Chemistry Initiative.  California’s “Safer Consumer Products” regulations seek to reduce toxic chemicals in consumer products by establishing a process whereby manufacturers of certain products must determine whether certain chemicals in their products are necessary and consider safer chemical alternatives.  The overall goal of California’s Safer Consumer Products initiative is to ultimately mandate the removal or substitution of specific chemicals from certain consumer goods.

Last week, on March 13, California’s Department of Toxic Substances Control (“DTSC”) published a draft of its “Proposed Priority Products List.”  The effect of publishing this list is to begin the rulemaking process, which will include notice and comment and public workshops, designed to further examine these listed products and their chemical make-up.  Industry stakeholders should take immediate note of the three products on the list and coordinate with suppliers and manufacturers who provide them, if applicable.  However, even if this rulemaking does not impact your products, it will establish a very important precedent and should be carefully monitored.

The first three products subject to California’s new initiative are: Continue Reading

The CPSC is Now Publicly Posting “Letters of Advice” to its Website

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

In his keynote address at the annual conference of the International Consumer Product Health & Safety Organization (ICPHSO), Acting Chairman Adler announced that the CPSC had recently started posting what it calls “letters of advice” (commonly referred to as LOAs) to its website. You can see this new page on the agency’s website by clicking here. The CPSC’s website states the LOAs listed are limited to those where the Commission has received a response from a company confirming the violation and the agency is satisfied with the company’s voluntary corrective action to remedy the violation.

As described in CPSC’s regulated products handbook, a letter of advice is a notification to a manufacturer, importer, distributor, or retailer from the CPSC that states the agency has determined a product manufactured, imported distributed and/or sold by a company violates a specific CPSC enforced statute, rule, standard, ban, or regulation. The letter also advises companies of the nature of the “necessary corrective action,” usually in the form of a request to correct future production; to stop sale and correct future production; or to conduct a full consumer recall, stop sale, and correct future production.

The agency is not currently posting actual copies of the letters to Instead, the website contains a downloadable grid that lists the following information about each company and the product alleged to violate a CPSC statute or regulation:  Continue Reading