Last week, the U.S. Department of Justice (“DOJ”) filed suit in federal court against four California companies and six individuals for importing products that violate the Federal Hazardous Substances Act (“FHSA”) and the Consumer Product Safety Act (“CPSA”). The individuals and companies — Toy Distribution, Inc., S&J Merchandise, Inc., BLJ Apparel, Inc. and All Season Sales, Inc. — are accused of importing children’s products, such as dolls, toy musical instruments and toy cars, with high levels of lead, banned plasticizers known as phthalates, and small parts. This development comes as no surprise to those of us in the product safety industry. The DOJ, and CPSC, with the full cooperation of U.S. Customs and Border Protection (CBP), have intensified their efforts in recent years to identify violative products at U.S. ports of entry and hold repeat and/or egregious offenders accountable.
According to the government, the lawsuit was filed after the CPSC determined through an investigation that the named companies were importing and selling tainted products. The Complaint alleges that: Continue Reading
Not to be left behind and not dependent on any other state action (Connecticut and Maine notwithstanding), a bill has been introduced (SB 1381) on February 21, 2014 that requires any food, with certain exceptions (more on that later), offered for retail sale in California to be labeled “Produced with Genetic Engineering” or “Partially Produced with Genetic Engineering” in the California State Senate. The Bill currently has the moniker: The California Right To Know Genetically Engineered Food Act.
The Center for Food Safety (CFS), which helped write SB 1381 and the failed Proposition 37 (the Proposition lost in the November 2012 state election 51.4% to 48.6%), claims the new bill is a “simple, clearer version of Prop. 37.”
After reviewing the bill in detail, one may respond: “Really?”
We recently published an article with Law360 providing an analysis on CPSC’s proposed amendments to its 6(b) Regulation (16 CFR 1101) that we want to share with our readers. You can access it by clicking here.
The article follows up on our previous post and discusses the impact of CPSC’s proposed changes to regulatory procedures required of the agency prior to publicly disclosing information concerning companies and their products. It also discusses the current status of CPSC’s 2012 proposal to automatically dispense of 6(b) notification procedures at the outset of every investigation into a company or product.
(Updated 3/2/14) The CPSC has voted to hold a workshop to discuss potential ways to reduce third party testing costs through additional “determinations” that certain products or materials do not require third party testing. Although the agency refers to these as determinations, they are essentially exemptions from the third party testing requirements for products or materials the CPSC determines do not require such testing because they are always expected to be compliant. If approved by the Commission, the workshop will take place on April 3rd and also be available via webcast. You can sign up to participate here.
The workshop will exclusively discuss the following three areas in which future CPSC determinations may be made: Continue Reading
CPSC Commissioner Ann Marie Buerkle announced today that Joe Martyak, her Chief Counsel, has accepted a position as Vice President for Communications with the Hawaii Community Foundation and will be departing the agency this month. Prior to working for Commissioner Buerkle, Joe served as Chief of Staff, Director of Public Affairs, and Chief Counsel for former Commissioner and Acting Chairman Nancy Nord.
In the same announcement, Commissioner Buerkle followed-up with news that Gib Mullan, currently the Chief Counsel to the U.S. House of Representatives Energy & Commerce Committee’s Subcommittee on Commerce, Manufacturing, and Trade, will be returning to the CPSC to serve as her Chief Counsel starting in early March. Gib previously served as the CPSC’s General Counsel and as the Director of Compliance.
Joe, who served in three different senior-level positions during his six years at the CPSC, will definitely be missed by many people inside and outside of the agency. Commissioner Buerkle found an experienced and well known new Chief Counsel in Gib. His internal knowledge of the agency and experience working on CPSC-related issues in Congress will undoubtedly serve as an asset to her moving forward.
(Updated Feb. 13, 2014) Over the past month, our blog posts have focused on the product safety activities of the U.S. Consumer Product Safety Commission and U.S. Congress, and even within the EU and Australia. However, product safety developments within the States must not be overlooked. On many issues, various states have been out in front of the federal government, or our international partners, on product safety issues, such as banning the use of heavy metals in children’s products, banning certain types of child care articles (such as drop-side cribs) and limiting Bisphenol-A (BPA) in products such as water bottles. Every so often, Consumer Product Matters will update our readers on interesting product safety developments on the state level by highlighting a select few (this list is not meant to be comprehensive).
In a somewhat unusual development for a CPSC rulemaking, Pennsylvania Senators Robert Casey and Patrick Toomey submitted a bipartisan comment letter into the official administrative record for CPSC’s proposed voluntary recalls rulemaking that echoed many of the same concerns voiced by at least 45 others who submitted comments (see full comment docket here).
In their letter, the Senators stated:
Written by: Alice Kilpatrick
The European Commission likely will propose an amendment to the European Union’s 2011 Restriction of Hazardous Substances Directive (RoHS Directive) before the summer. The Directive, which was adopted in February 2003 and took effect in July 2006, restricts the use of certain hazardous materials from electronic and electrical goods.
A new proposed amendment would add substances to Annex II of the Directive, which specifies the prohibitions. Although there are no final recommendations yet for the banned substances, research organizations have started proposing chemicals to ban (as detailed below).
In some breaking news from Capitol Hill, 20-term Congressman Henry Waxman (D-CA) has decided not to seek re-election in 2014. As the former Chairman of the House Committee on Energy and Commerce, and its current Ranking Member, Rep. Waxman played an instrumental role in framing and driving the debate around consumer product safety issues. For example, after the “year of the recall” in 2007, Rep. Waxman was one of the primary authors of the controversial Consumer Product Safety Improvement Act of 2008 (“CPSIA”) along with Rep. Bobby Rush (D-IL). This law has had a profound impact on the regulatory regime governing product safety. In recent years, he was a leading proponent of reforming the Toxic Substance Control Act (“TSCA”).
I had the pleasure of working on Rep. Waxman’s staff for a semester as a law student and learned a great deal about the inner-workings of Congress from that experience. Whether you agree or disagree with Rep. Waxman’s approach to enhancing the safety of consumer products, and other products not covered by the Consumer Product Safety Act, such as cosmetics, automobiles, and pharmaceuticals, his absence come next Congress will be felt by all of us who work in the product safety arena. This is a significant development for the future of product safety law and regulation.
As the February 4th commenting deadline for CPSC’s voluntary remedial actions rulemaking approaches, many companies and trade associations are pondering not only the wisdom of CPSC’s insertion of compliance programs into voluntary recall negotiations, but also how those compliance programs might evolve and take shape moving forward. To date, the agency has listed a few circumstances where it may seek to impose a compliance program, some of the specific provisions that may be included in an agreement to establish a program, and how such an agreement would be enforced by the agency.
Given the Commission’s unambiguously stated intent to use compliance programs as an enforcement mechanism in civil penalty and recall negotiations, one common question we have heard is whether any additional guidance or information beyond what is written in the proposed voluntary remedial actions rule might also be forthcoming from the CPSC. Although the agency has not provided any formal indication on whether it will ever issue such guidance, product safety regulators in Australia have provided guidance for compliance program provisions included in enforcement actions called “enforceable undertakings” (or “Section 87B” undertakings), which are often entered into in lieu of litigation for violations of Australia’s Trade Practices Act.
Most notably, the Australian Competition & Consumer Commission (ACCC) has produced a series of templates that micro, small, medium, and large businesses can use to develop their own programs. At one point in time, the ACCC also offered more extensive guides for small and large businesses (the “retired” small business guide can be found here—it’s unclear whether either document will be reissued). The ACCC expressly states that these templates provide an example of: