Consumer Products

With Congress back in session, on January 8th President Trump was swift to re-nominate Acting Chairman Ann Marie Buerkle to be the permanent Chairman of the CPSC, along with a nomination for a second term as a Commissioner. President Trump also re-nominated Dana Baiocco to be a Commissioner.

Happy New Year! And now on to your regular Consumer Product Matters programming…

Over the past few weeks, there have been many key goings-on related to the CPSC and its Commissioners.

Today, President Trump announced his nomination of Dana Baiocco to be a Republican Commissioner on the Consumer Product Safety Commission. If confirmed, Ms. Baiocco would take the seat of Commissioner Robinson, whose term expires on October 26, 2017.

It has recently been reported that President Donald Trump is looking for ways to defend American-made products by certifying legitimate U.S. goods and aggressively going after imported products unfairly sporting the “Made in America” label, the White House said on July 18, 2017. President Trump announced that his…

This morning it was announced internally at the CPSC that Commissioner Ann Marie Buerkle has become the Acting Chairman of the agency. The CPSC has not yet released a statement concerning the transition of the chairmanship from Elliot Kaye to Ann Marie Buerkle, but we have confirmed the…

As we have discussed in previous posts, Congress may be moving towards finally enacting some long-awaited cosmetics reform legislation this year. On January 13, Representative Pete Sessions (R-TX) reintroduced his cosmetics modernization bill as H.R.575. The package of reforms was first introduced in November 2015 as the Cosmetic…

On December 6th, FDA announced that it is publicly releasing data received by the Agency’s Center for Food Safety and Applied Nutrition (CFSAN) about adverse events related to cosmetics and foods, including both conventional foods and dietary supplements. Adverse events can be any negative reaction to a product,…

We do not get many court decisions in the CPSC world, but yesterday we received one. Last evening, a Wisconsin federal district court essentially held in the Government’s case against Spectrum Brands, Inc. (Spectrum) that (1) Spectrum failed to timely report defective coffee pots in violation of Section…

On November 8, 2016, California voters approved Proposition 67, the statewide ban on carry-out plastic bags, by 52 percent. At the same time, California voters rejected Proposition 65 by 55 percent–a measure that would have sent the proceeds from sales of paper bags and reusable bags to environmental…

We reported a few weeks ago about a new warning from FDA related to the safety of certain teething-related, non-prescription homeopathic drug products, and in that pos t we mentioned that both FDA and the Federal Trade Commission (FTC) held public workshops in 2015 to gather information about…

We have had a huge election result, perhaps the most significant in our lifetime, potentially even exceeding what was called the Reagan Revolution. It is critical, particularly for anybody from Washington DC, to have a great deal of modesty and humility in prognosticating the future under the Trump…

Our colleagues in Mintz Levin’s Intellectual Property Practice, Aarti Shah and James Wodarski, recently authored an expert analysis piece in Law360 that examined the use of the U.S. International Trade Commission (ITC) to combat a rising tide of counterfeits and knockoffs in all kinds of consumer product industries.…

Back in April 2015, Senators Dianne Feinstein (D-CA) and Susan Collins (R-ME) introduced the Personal Care Products Safety Act (S.1014). More recently, on September 22, 2016, the Senate Health, Education, Labor, and Pensions Committee received testimony from Senators Feinstein and Collins in support of this bipartisan legislation. The…

Last week, following up on a more general warning issued on September 30, FDA alerted the public that it had received at least 10 reports of baby deaths associated with the use of homeopathic teething products, as well as over 400 other adverse event reports over the past…

In the wake of two tragic amusement park ride accidents in Kansas and Tennessee, and the ongoing political debate in America over gun safety issues, we felt it timely to help answer a question that continues to be asked in the media: does the U.S. Consumer Product Safety…

Today the U.S. Consumer Product Safety Commission (“CPSC”) and Health Canada announced a massive joint recall with IKEA involving over 35 million pieces of furniture that can pose a tip over hazard to small children. While we would normally write about the recall itself, a troubling development has…

This article originally appeared on Law360 on May 12, 2016 and provides additional analysis to our prior post on this subject.

According to the Philadelphia Inquirer, CPSC Chairman Elliot Kaye announced in a meeting with consumer advocates that the agency will never again allow a company conducting a voluntary corrective action to call it anything other than a “recall.” Last year, after the announcement of a joint CPSC-IKEA “repair…

There have been many twists and turns over the past four years concerning the CPSC’s regulation of certain high powered, rare-earth magnet sets and its litigation against various entities selling these magnets. In the latest chapter of the magnets saga, a federal court in Colorado has permanently enjoined…

Earlier today, the CPSC unanimously agreed to publish in the Federal Register a new enforcement policy proposed by Commissioner Joe Mohorovic regarding the certification of certain adult wearing apparel (click here for policy-related materials and statement prepared by Commissioner Mohorovic). Specifically, the CPSC will not require manufacturers and…

Last year, we wrote about a growing trend of local jurisdictions regulating children’s products, primarily toys and apparel. One such jurisdiction, Albany County, NY, enacted a far-reaching ordinance, “Local Law J of 2014,” that prohibited the sale of children’s products containing seven chemicals of “high concern” (see previous…

Has your business experienced difficulty identifying on the CPSC’s website which product safety regulations are potentially applicable to your products? In an effort to better guide industry, particularly new product makers and small businesses, through the maze of CPSC regulatory requirements and guidance, the CPSC rolled out earlier…

California, 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”.

Yes. 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,…

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

The “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…

So 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…

[This article originally appeared on Law360.com on June 23, 2015.]

Do local governments, such as town councils and county legislatures, have a role in regulating consumer products that is typically reserved for the federal and state governments? Apparently, the legislature and executive of Albany County, New York believe that they do.

Yesterday evening, Senate Majority Leader Harry Reid (D-NV) filed cloture on the re-nomination of Robert Adler to be a Commissioner of the Consumer Product Safety Commission (CPSC). If cloture is invoked—meaning three-fifths of the full Senate, or 60 votes, supports the attempt for cloture (assuming the “nuclear option”…

In recent years, we’ve noticed a new maneuver that class-action defense counsel have increasingly added to their playbooks: The Pick Off. This is how the play is run: Offer the named plaintiff(s) full relief through a Rule 68 offer of judgment and, even if the plaintiff(s) reject the…

At their April Senate confirmation hearing, both incoming CPSC Chairman Elliot Kaye and Commissioner Joe Mohorovic pledged to Senator John Thune (R-SD) to submit plans for reducing third party testing burdens within 60 days of confirmation. Rather than send separate plans, Kaye and Mohorovic submitted a joint letter…

As we’ve explored in past posts, mandatory GMO-labeling legislation has, at best, a spotty track record among state legislatures. Nevertheless, the GMO issue continues to draw the public’s attention, and it is becoming clear that the “Non-GMO” label now appeals to at least certain segments of the consumer…

On October 28, 2014, the U.S. Consumer Product Safety Commission (CPSC) announced that Baja Inc., and its corporate affiliate, One World Technologies Inc., of Anderson, S.C., agreed to pay a $4.3 million civil penalty to resolve charges that it knowingly failed to immediately report certain defects and an…

On October 20, 2014, FDA reached a settlement with the Center for Food Safety (“CFS”) in litigation pending in the U.S. District Court for the District of Columbia. This litigation is related to FDA’s rule for food additives that are “generally recognized as safe” (“GRAS”). In 1997, FDA…

On October 14, the Government Accountability Office (GAO) published a report entitled “Consumer Product Safety Commission: Challenges and Options for Responding to New and Emerging Risks.” The report analyzes the timeliness of the Consumer Product Safety Commission’s (CPSC) response to “new and emerging” safety risks from new or…

A recent class action settlement has brought fresh attention to two age-old questions. The first: does Red Bull actually give you wings? The second: how carefully should courts screen out bogus claimants from proposed classes of refund-seeking consumers?

In May, we advised readers conducting recalls that the CPSC’s new monthly “recall progress report” form may catch you by surprise. Among other changes, the form included new provisions requesting companies to report recall notification statistics on social media platforms like Facebook and Twitter along with information from…

In this blog we often discuss products being subjected to a lawsuit based on allegations that a label is false or misleading under California’s consumer protection laws. The Federal Trade Commission is similarly concerned with the prevention of false and misleading claims, but its focus is also on…

We do not typically take positions on product specific issues pending before the U.S. Consumer Product Safety Commission (“CPSC”), but the CPSC’s new safety standard for magnet sets demonstrates both why the agency exists and how it can use its regulatory authority to protect consumers. In enacting the…

A recent federal decision has made clear that court-ordered recalls can have real teeth, not just for manufacturers but also their officers—especially when the court has reason to suspect a company’s execs are deliberately dragging their feet.

Although the final rule currently under consideration by the CPSC sets a performance standard for magnet sets, the practical effect of the new safety standard will be a ban on the future sale or distribution of powerful rare earth magnet sets like Buckyballs and Zen Magnets. During the…

Throughout the year, this space has periodically re-visited the topic of regulating the manufacture and labeling of foods with genetically modified ingredients (GMOs) at the state and federal level. This week, a lawsuit out of Kauai, Hawaii shed light on the fate of these regulations at the county…

In the wake of the tragic drowning of Virginia Graeme Baker, the granddaughter of former Secretary of State James Baker, Congress passed and President Bush signed into law the Virginia Graeme Baker Pool and Spa Safety Act. The legislation was sponsored by Congresswoman Debbie Wasserman Schultz (D-FL) and…

Judge Claude M. Hilton of the Eastern District of Virginia recently issued a Memorandum Opinion following up on his June 27, 2014 order (on which we previously wrote here and here) dismissing the complaint filed against the power tool industry by SawStop, LLC.

Last week, the California Supreme Court granted review of Ramos v. Brenntag Specialties, Inc. to resolve a split in the Second Appellate District regarding the application of California’s component parts doctrine. The component parts doctrine stands for the proposition that a company that manufactures component parts cannot be…

The House of Representatives is currently considering H.R. 5016, the Financial Services and General Government Appropriations Act of 2015, which provides funding to many different parts of the federal government for the next fiscal year. This includes the CPSC, which would be funded $118 million under the House…

Last week, a California federal judge revived a putative class action accusing Amy’s Kitchen Inc. of misleading customers by labeling sugar as “evaporated cane juice” on its products. In a finding that puts the case on hold until the FDA weighs in, Judge Illston found that a decision…

On June 27, 2014, Judge Claude M. Hilton of the Eastern District of Virginia dismissed the complaint filed against the power tool industry by SawStop, LLC. We previously wrote about this lawsuit and the need for companies and trade associations to develop sound legal policies and procedures to…

In April, we wrote about the Vermont legislature’s approval of a bill that would require manufacturers to change the retail labels of certain foods to indicate that they are GMO. On May 8, 2014, Vermont enacted the final version of this bill, now Act 120, which requires manufacturers…

In most respects, trade associations are pro-competitive organizations: they join together competitors to advance worthwhile goals and to learn from one another. Their societal value is why they are recognized as non-profits. Many trade association activities, in particular safety standard-setting efforts, provide the public with valuable benefits. But…

On June 10, 2014 the federal government proposed to expand the coverage of the rule designed to weed out counterfeit electronic parts in products sold to the Government. The new rule, if adopted in the form proposed, would expand coverage of the anti-counterfeit parts rule in three significant…

Last month, we wrote about the toxic chemicals legislation bouncing between the Vermont House and Senate (click here for our prior post). On May 9, 2014, the Vermont Legislature gave final approval to the bill, S.239, which gives the Vermont Department of Health the authority to require manufacturers…

Former CPSC Chairman Ann Brown recently sent a letter to the leaders of the CPSC’s congressional oversight committee asking for them to “urge the Commission to consider its proposed [voluntary recalls] rule carefully and to assure that it does not adversely affect CPSC’s Fast Track Recall Program.” As…

The CPSC recently released a new monthly progress report form for companies conducting recalls with the agency. The revised form is in some respects better written than its predecessor and retains many of the old information reporting categories, disposes of or modifies other information fields from the old…

We have all seen or heard about them without, perhaps, knowing what they were or for what they stand: the GOOD HOUSEKEEPING seal of approval, UL certified, ENERGY STAR rated, GROWN IN IDAHO potatoes, HARRIS TWEED, and many, many more. They are called certification marks and they fall…

In an unexpected move, President Obama announced this afternoon his intent to renominate current CPSC Acting Chairman, Robert Adler, to a second term at the agency. Acting Chairman Adler’s current term expires in October of this year, and it was unclear whether he would be renominated prior to…

On May 9, 2014, the CPSC and the maker of Buckyballs and Buckycubes settled the July 2012 administrative case brought by the CPSC alleging that these “rare earth magnets” pose a substantial product hazard. The settlement agreement includes a voluntary recall of Buckyballs and Buckycubes and a trust…

On May 5, 2014, the Vermont Senate gave final approval to a bill that would ramp up regulatory scrutiny of the chemicals found in children’s products. The bill, S.239, gives the Vermont Department of Health the authority to require manufacturers to report, label, and remove chemicals it considers…

The European Chemicals Agency (ECHA) has adopted a proposed restriction of lead in consumer articles. Specifically, the restriction proposal aims to reduce children’s exposure to lead from putting consumer products in their mouth.

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…

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…

(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…

(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…

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…

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…

CPSC’s November 20, 2013 Commission hearing started with an emotional farewell from Chairman Inez Tenenbaum and high praise from her fellow Commissioners for her dedication to consumers and the agency. I joined the Chairman’s staff at the start of her tenure at CPSC and can echo the Commissioners…

A growing number of states are passing Green Chemistry laws, e.g.; California, Connecticut, Maine, Minnesota, and Washington State. These laws present a challenge to manufacturers who distribute and sell products into the 50 states.

Since the inception of the U.S. Consumer Product Safety Commission (CPSC), voluntary recall agreements between the agency and companies conducting a recall (commonly referred to as “corrective action plans”) have not been legally binding on the company conducting the recall. At the November 13, 2013 meeting of the…

Yesterday President Obama announced his intent to nominate Joseph P. Mohorovic as a Commissioner on the Consumer Product Safety Commission. If confirmed by the Senate, he would succeed former Republican Commissioner Nancy Nord whose term expired at the end of October.

California’s District Courts have, of late, become the go-to jurisdictions for plaintiffs bringing ‘natural’ labeling lawsuits against national food manufacturers. This is due, in large part, to California’s consumer-friendly Unfair Competition Law, False Advertising Law, and Consumer’s Legal Remedies Act. California District Courts may be sending a different…

As this space has pointed out on several occasions, California’s laws are nothing, if not unique. One such law is California’s Business & Professions Code Section 12606.2 which prohibits a container or package from having false bottoms, false sidewalls, a false lid or covering or to “facilitate the…

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’”

The CPSC is considering whether to issue an interpretative rule (to be included as part of 16 CFR 1115) that would significantly alter the way in which voluntary recalls and corrective action plans (CAPs) are conducted. One major aspect of the proposed rule is turning past agency practice…

California is one of the largest consumer markets in the United States. When it comes to environmental regulations, California can be the tail that wags the dog. It is not difficult for manufacturers, importers and retailers to inadvertently run afoul of California’s comprehensive environmental regulations. Those regulations just…

Demi Lovato’s hit song “Made in the USA” recounts how her love for her boyfriend is both amazing and patriotic. If they had fallen in love in Paris or Acapulco, however, she may be facing an enforcement action by the FTC or a lawsuit in California under Business…

I used to jokingly tell people that when I moved from design engineering into the law I went from the most productive field in the world to the most counter-productive field. This joke plays on the common misconception that lawyers are risk-averse naysayers who stifle innovation and focus…

This week, the Consumer Product Safety Commission (“CPSC”) will decide whether to hold a full Commission hearing to receive oral comments on a notice of proposed rulemaking on magnet set safety. If the meeting notice is approved as drafted, the hearing will take place at 10 AM EST…

Would “reasonable consumers” have regarded Paul Cezanne as highly had he painted numerous versions of still life with froot?

Last week, CPSC staff proposed an amendment to the agency’s current voluntary standards rule that would allow Commission employees to participate as voting members and to accept leadership positions in voluntary standard development groups. The new rule would amend 16 CFR 1031 to remove the current prohibitions on…

A question before district courts these days seems to be whether 100% natural molasses move any slower than the FDA. In July, the Food Court in the Northern District of California asked FDA to opine on the proper use and application of “whether and under what circumstances food…

This month marks the five year anniversary of the enactment of the Consumer Product Safety Improvement Act of 2008 into law. Commonly referred to as the “CPSIA,” the law has had a dramatic impact over the past five years on all firms involved in manufacturing, importing and selling…

The role of the Consumer Product Safety Commission (CPSC) in product liability cases is often a two-sided coin. Evidence of a recall is sometimes allowed to establish notice of a defect though the standard to invoke a recall of a product is not the same as proving a…

The FTC’s recent settlements with three mattress companies send a message to all companies making “VOC Free” (volatile organic compounds) and similar environmental or “green” claims. These mattress settlements come just nine months after FTC settlements with two of the nation’s leading paint companies, The Sherwin-Williams Company and…

It would no doubt be helpful to present a jury with information of how plaintiff was driving too fast in choppy water before being thrown from a boat or how the plaintiff allowed lint to collect in the exhaust duct before a fire in the dryer caused property…

The U.S. Consumer Product Safety Commission (CPSC) announced recently that it stopped 4.8 million units of products at multiple ports of entry that violated product safety rules or were deemed to be hazardous. The units were seized during the Commission’s last fiscal year (October 2011 to September 2012).…

When you board a ride at an amusement park, the question of who regulates the ride vs. the toy you just won is probably the last thing on your mind.

Starting in 2012, the U.S. Consumer Product Safety Commission (CPSC) teamed up with football helmet manufacturers, the National Football League (NFL), and others to eliminate the use of outdated football helmets and teach safer game play among youth football players. The “Youth Football Brain Safety” initiative has helped…

Manufacturers are removing “natural” statements from their labels, both as part of lawsuit settlements and as an alternate marketing strategy. PepsiCo has agreed to remove the phrase from its Naked juices after a lawsuit was filed against it in California, stating that it will wait for more detailed…

On June 27th, the U.S. Senate confirmed Marietta Robinson and Ann Marie Buerkle as new CPSC Commissioners. Robinson was first nominated in 2012 and participated in a hearing before the Senate Committee on Commerce, Science, and Transportation on May 10, 2012. Buerkle was nominated in late May of…

A unanimous U.S. Consumer Product Safety Commission (“CPSC”) announced that Ross Stores Inc. (“Ross”), a national discount retailer, agreed to pay a $3.9 million civil penalty to settle allegations that it failed to report its continued sale of banned children’s upper outerwear containing drawstrings. In addition to paying…

Are you for or against GMOs? Do you think the government should get involved? Whether for or against legislation requiring labeling showing any Genetically Modified Organism contained in your food, the fact that the two sides are diametrically opposed on interpretation of critical aspects will ensure litigation. In…

It’s 2 o’clock in the afternoon, you need a snack – maybe a granola bar, but which one? Does the package that boasts it is “100% Natural” win out over the one that is only “All Natural”? Would you even consider one that is merely “Natural”? Well, don’t…

The U.S. Consumer Product Safety Commission (“CPSC”) recently proposed to substantially alter its 2008 regulation governing the form and contents of certificates of compliance for consumer products. Commonly referred to as “GCCs” within the retail and manufacturing industries, certificates of compliance are used to establish a product’s compliance…