The Year Ahead

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2013 – What to Watch from the Consumer Product Safety Commission

In a recent article from the law firm of Roetzel & Andress by attorneys, Brian E. Dickerson, John Boudet, Amanda M. Knapp and Jonathan R. Secrest, they outline five (5) areas for companies to watch out for in the New Year with regard to the CPSC.

  1. Commission Membership – currently the commission is made up of two Democratic commissioners and one Republican commissioner.  It is pointed out that President Obama can fill the two vacancies on the Commission this year; however one of those vacancies must be a Republican.  He has the choice of just letting the Commission continue as it is currently.
  2. Civil Penalties – civil penalties were dramatically increased with the passage of the CPISA in 2008 but thus far have not resulted in increased civil penalties for companies.  It was noted in the article that until October 2012, the commission was evenly split between Republican and Democrat commissioners and now with a Democratic majority the expectation is that civil penalties will increase.   An example of this was the 2012 Hewlett-Packard penalty where the number of incidents and the timing of reporting a product defect was the basis of the large civil penalty.
  3. Online Database Rulings – the CPSC’s online database, SaferProducts.gov, was another issue brought forth by the law firm.  They discussed a recent opinion by a U.S. District judge in the matter of Company Doe v. Tenenbaum, where it was held that “the Commission had abused its discretion in seeking to publish a complaint on its online database because it failed to meet the statutory requirement that a compliant of harm be ‘related to’ the product identified in the compliant.”  Since this is the first court challenge to the online database it is uncertain as to if other companies will use judicial review to prevent publication in the database.  Additionally the current case is being appealed and is being joined by several consumer interest groups who are seeking to obtain the identity of the company and the product.
  4. Administrative Complaints – a more aggressive approach by the commission in the filing of administrative complaints and recalls of products was noted.  The case of the manufacturer of “Buckyballs” was used to show how the Commission went from working with the manufacturer on the development of education, packaging and warnings for the product to litigation, product ban and recall.  In addition the Commission showed a wiliness to go directly to retailers, urging them to stop selling the product.  It would seem that the Commission has adopted the stance that warnings are not sufficient to prevent hazards presented by products.
  5. New Section 6(b) Interpretation – section 6(b) of the Consumer Product Safety Act (CPSA) prohibits the Commission from disclosing information about a consumer product and the identity of the manufacturer or private labeler until the Commission has taken “reasonable steps” to assure that the information is accurate and fair.  In a new interpretation of section 6(b) the Commission has stated that it will announce that it is “investigating” a product or company solely on the information provided in an initial or full report submitted under section 15 of the Consumer Product Safety Act (CPSA)

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