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: