On July 25, 2017 at 9:00 AM, the Consumer Product Safety Commission will be hosting a public workshop on Recall Effectiveness. The workshop, to be held in the Hearing Room at CPSC Headquarters in Bethesda, Maryland, is intended to allow consumer safety professionals and the CPSC staff to discuss ways to improve the effectiveness of recalls. Mintz Levin’s product safety team will be in attendance.

The agenda for the workshop includes: Continue Reading CPSC to Host Recall Effectiveness Workshop; Commissioner Kaye Issues Recall Effectiveness Statement

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 program” to address a furniture tip-over hazard involving the company’s popular Malm dresser, we  asked whether the announcement indicated that the agency was possibly softening its practice of labeling every corrective action a recall.

The answer, according to Chairman Kaye, is a firm “no.”   Continue Reading CPSC Chairman Vows that Every CPSC Voluntary Corrective Action Will Be Called a “Recall”

On March 25, 2016, Administrative Law Judge Dean Metry found that the U.S. Consumer Product Safety Commission (“CPSC”) case counsel did not prove that high powered, small rare earth magnets (“SREMs”) (1) are defective as sold by Zen Magnets (“Zen”); and (2) constitute a substantial product hazard when sold with appropriate warnings, including proper age recommendations (click here for decision and order).  Judge Metry concluded that because the SREMs are not designed, manufactured, or marketed for play to children under fourteen, the proper and intended use of Zen creates no exposure to danger, such as ingestion by small children.  Judge Metry did rule, however, that Zen needed to recall a small number of magnets that did not contain sufficient warnings or were marketed for ages twelve years and older.

In response to the decision, Shihan Qu, Zen’s founder said:

“The outcome of the administrative adjudication . . . is in, and common sense has prevailed. This represents first and only administrative review of the merits of the CPSC’s claims regarding SREMs. [This] represents 90% victory, and 10% recall. For the CPSC, this is a huge loss: it’s the first time a CPSC administrative action has been challenged in court since 2001.”

Continue Reading Zen Magnets Claims “90% Victory” Against CPSC in Magnet Recall Litigation

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 Zen Magnets (Zen) from selling magnets purchased from another distributor, Star Networks USA (Star Networks) who later recalled them to settle administrative litigation with the CPSC.

It is illegal to resell previously recalled products under the Consumer Product Safety Act (CPSA).  Zen asserted the products were “fungible commodities” and it had taken them out of the scope of the prohibition by repackaging and rebranding them.  In a victory for the CPSC, the court disagreed vehemently and ordered Zen to recall the magnets.  The court reasoned as follows: Continue Reading Federal Court Makes No Exceptions for “Commodity Products” and Orders Zen Magnets to Stop Selling Previously Recalled Magnets

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 CPSC Major ‘Repair Program’ Is Not Labeled A ‘Recall’

Ikea Product IssueYesterday the CPSC 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 tip-over incident (more background on furniture tip over and wall-anchoring here).

If you weren’t looking for it, then you could have easily missed that the announcement did not contain the word “recall.” Nor was it included in the CPSC’s recall announcement list (though it is currently listed as a “recall” on saferproducts.gov).

So why is this significant? Continue Reading Shifting CPSC Recall Landscape? Agency Announces Major “Repair Program” that is not Labeled a “Recall”

US CPSC Fast Track Recall ProgramSo 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 the program and what are the potential downsides? When should a company utilize fast track? These are common questions for companies who believe they could have a product safety issue and are already seriously considering a voluntary recall.

What is the CPSC “Fast Track Recall” Program?

Continue Reading What is CPSC’s Fast Track Recall Program and When Should Companies Utilize It?

zen-magnetsAs we wrote about earlier this month, on April 1, 2015, the U.S. Court of Appeals for the Tenth Circuit (“Tenth Circuit”) temporarily stayed the effective date of “the enforcement and effect” of the CPSC’s safety standard for certain high-powered magnet sets.  Specifically, the Court stayed the safety rule pending consideration of the CPSC’s response to plaintiff Zen Magnets’ (“Zen” or “the Company”) motion to stay the rule pending judicial review.  While the temporary stay ordered by the Tenth Circuit was widely reported in the media, what followed soon thereafter – the lifting of that stay – has received scant attention.

On April 14, CPSC Responded to Zen’s Stay Motion.  The Government argued that the rule should not be stayed pending judicial review because Zen could not demonstrate: Continue Reading Tenth Circuit Lifts Stay on CPSC’s Magnets Rule

Alibaba and CPSC blog sale of recalled goodsFollowing an ABC 20/20 investigative story where CPSC Chairman Elliot Kaye called Craigslist’s failure to block the sale of recalled products “morally irresponsible,” the agency announced yesterday that it has entered into an agreement with the Chinese e-commerce company Alibaba Group (“Alibaba”) to stop the sale of products recalled by the CPSC to U.S. consumers. The agreement resembles similar arrangements with other online marketplaces like eBay and Amazon, which date back to initiatives started in 2000 under former CPSC Chairman Ann Brown.

Two of the primary components of such arrangements are for online marketplace companies to: Continue Reading CPSC and E-Commerce Giant Alibaba Ink Deal to Block Sale of Recalled Products to U.S. Consumers

2015 Budget CPSC

Update: After some uncertainty, Congress passed and the President is expected to sign the 2015 Omnibus bill into law.

The report language of the Omnibus bill incorporated by reference House Report 113-508, which accompanied a previous appropriations bill passed by the House earlier this year. This additional report language addresses several key CPSC issues, including: import safety, the phthalates Chronic Hazard Advisory Panel, window coverings, and the agency’s proposed amendments to its regulations on voluntary recalls, 6(b) information disclosure, and certificates of compliance.

For further details about this additional report language, please read our previous post from earlier this year.

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Yesterday congressional leaders announced that they reached a deal on an omnibus bill that will fund the federal government through September 30, 2015. Included in this bill is $123 million in funding for the CPSC, which is the amount the agency requested in its 2015 Budget Request and an increase of $5 million from what the agency received in 2014.

Not included in the omnibus or other 2015 legislation, however, is statutory language authorizing the agency to collect user fees from importers of consumer products. As a part of its 2015 Budget Request released in March, the agency sought the statutory authority to collect user fees to fund an estimated $36 million in annual costs for a full-scale national import surveillance program. Currently, the CPSC’s import surveillance program is in its pilot stage and limited in scope. In May, the National Association of Manufacturers (NAM) and 40+ other trade associations wrote a letter to then Acting-Chairman Adler raising concerns about this type of user fee authorization.

Additional items of note that Congress outlined in its report language accompanying the Omnibus included: Continue Reading 2015 Omnibus Provides $123 Million in Funding for the CPSC with No User Fee Authorization; Report Language Focuses on Test Burden Reduction, Import Surveillance, and Report on “Auto-Update” Mechanism for CPSC Safety Standards