Corrective Action Plans

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?

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 we’ve previously written, some aspects of the proposed amendments to CPSC’s voluntary recalls rule are considerable departures from longstanding agency practice and resulted in nearly 50 stakeholder comments that criticized the same aspects of the rule that Brown calls out in her letter.

Former Chairman Brown identified two of the proposed changes as potential threats to the “Fast Track” voluntary recall program initiated during her administration. The Fast Track recall program is a program that allows companies to fulfill their product safety reporting obligations to the CPSC and conduct a voluntary recall without the agency making a “preliminary determination” (or PD) about the safety of the recalled product that could later be used against the company in product liability litigation. After describing the virtues of the Fast Track recall program and the praise it has received since its implementation in 1997, she states: Continue Reading Former CPSC Chairman Brown Expresses Concern over CPSC’s Voluntary Recalls Rule

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 form, and contains entirely new and already somewhat controversial information requests. For those unfamiliar with the monthly report form, it is a document that companies conducting joint recalls with the CPSC fill out and submit regularly throughout the course of a recall in accordance with their corrective action plan (“CAP”).

The document serves as one of the CPSC’s various measures of how effectively the recall is being carried out. The revised form now requests companies submit the following information concerning a recall: Continue Reading Check Your CAP: CPSC Releases Revised Monthly Progress Report Form for Recalls

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 CPSC, Vice-Chairman (and soon to be Acting Chairman) Bob Adler offered a substitute amendment to the “voluntary recall notice” rule proposal that, among other changes, included a provision making every corrective action plan agreed to as part of a voluntary recall legally binding. He stated that making corrective action plans legally binding would allow the agency to enforce the agreements, presumably by going to court to seek “specific performance” should the CPSC believe a company is not fulfilling the terms of a recall.

Adler described the amendment as only a “tweak.” He also dismissed concerns that there are not many examples of companies that do not fulfill their obligations under a corrective action plan by stating that one time is too many and there was at least one recent example he could think of where it occurred. Commissioner Marietta Robinson and Vice-Chairman Adler both stated that concerns about the change slowing down the recall process due to additional involvement of lawyers were overstated because lawyers are already involved in negotiating corrective action plans with the agency. Chairman Inez Tenenbaum also supported the amendment and emphasized that the Commission did not even need to seek public comment on an interpretive rule but is doing so here.

The Commission approved the substitute amendment including this new provision by a 3-1 vote with Chairman Tenenbaum, Vice-Chairman Adler, and Commissioner Robinson voting in favor of its inclusion. Commissioner Ann Marie Buerkle voted against the amendment, stating that the current voluntary recall system is working fine and CPSC’s Office of Compliance already has the tools it needs to deal with any companies that might stray from their corrective action plan. Commissioner Buerkle also offered her own amendment that, among other changes, would have sought comments from stakeholders on the need to make corrective action plans legally binding prior to formally inserting such a provision into the rulemaking. Commissioner Buerkle’s amendment was voted down by a 3-1 majority.

Continue Reading New CPSC Proposal Would Reverse 39 Year Precedent by Making Voluntary Recall Agreements Legally Binding on Companies