In an uncommon move, the U.S. Consumer Product Safety Commission (CPSC) on Wednesday issued a unilateral press release warning consumers of the need to anchor a particular brand and model of dressers. In its release, the CPSC wrote that it “intends to continue pressing the case for a recall with” the manufacturer.
Continue Reading Going Old School: CPSC Issues Rare Safety Warning on Dressers

A U.S. Supreme Court ruling from last summer may have changed the trajectory of a high-profile pending commercial speech case. In National Institute of Family and Life Advocates v. Becerra, the Court modified the traditional commercial speech tests, perhaps placing a greater burden on the government when it seeks to regulate commercial speech. Becerra could influence the D.C. Circuit Court’s decision in Cigar Association of America v. U.S. Food and Drug Administration as to whether FDA-mandated cigar health warnings violate the First Amendment. If cigar regulations are found to violate the First Amendment, it could lead to a new wave of litigation.
Continue Reading You Can’t Make Me Say It: Does Becerra Make it Harder for the Government to Require Product Health Warnings?

Entities regulated by the U.S. Consumer Product Safety Commission (CPSC) should have greater confidence in sharing confidential business information with the agency following a U.S. Supreme Court decision earlier this year that addressed the U.S. Department of Agriculture’s duty to disclose information in response to a Freedom of Information Act (FOIA) request.

Continue Reading Private Eyes: When is Company Information Shared with the CPSC Confidential?

Have you eaten “America’s Favorite Pasta”[1] or received a “record-breaking” [2] footbag with your fast-food meal? While these products may seem to have little in common, they have a shared experience – each was the target of a false advertising claim. The statements raise the always-burning question for manufacturers: what is mere puffery and what constitutes false advertising?
Continue Reading Not Another Puff Piece: The Difference Between Puffery and False Advertising

Imagine you try to flush a wipe that is branded flushable and discover it won’t flush. You are angry enough to sue the manufacturer for damages for “consumer fraud,” but should you also be able to force the manufacturer to change the label, even though your experience means you now know the “truth” about the product?
Continue Reading Flush with Uncertainty: Do Plaintiffs Have Standing to Seek Injunctive Relief for “Consumer Fraud” When They Are No Longer “Defrauded”?

Of the various debates and documents that can presage the interests and activities of the U.S. Consumer Product Safety Commission (CPSC), the agency’s operating plan is generally the most illustrative. The CPSC adopts a new plan around the beginning of each fiscal year, laying out that year’s objectives. Last Tuesday, the Commission received a briefing from agency staff on the FY20 Op Plan. The five commissioners will now review the draft and discuss potential changes, and they will likely hold another public meeting to vote any amendments and a final plan. Presumably, that vote will occur before Commissioner Ann Marie Buerkle’s departure on October 27; once she’s gone, the body will be evenly split on party lines, and the odds of failing to reach consensus will go up.
Continue Reading First Glimpse at the CPSC’s FY2020 Plan

With uses ranging from transporting troops to increasing mobility for people with disabilities, off-road vehicles (ORVs) are being used by more people now than when the all-terrain vehicle (ATV) emerged in the 1960s. With increased demand comes increased discussion about how ORVs are regulated. And the answer is, it depends on where you live.
Continue Reading Motor Vehicles or High-Powered Toys: The Diverse Landscape of Off-Road Vehicle Regulation and Where it Might be Going

As Congress returns from its August recess, the House has plenty of work on its plate regarding the U.S. Consumer Product Safety Commission (CPSC). As we wrote previously, six bills addressing specific CPSC-regulated products are on the House floor awaiting votes. Another bill still under subcommittee consideration could help companies regulated by the CPSC, the agency itself, and consumers.

The Focusing Attention on Safety Transparency and Effective Recalls (FASTER) Act (H.R. 3169) would formalize and improve the CPSC’s Fast Track voluntary recall program. In 1995, Fast Track was a welcome and successful innovation, but recently companies have been frustrated by growing delays.
Continue Reading Will CPSC Recalls Soon Get FASTER?

In April, the U.S. Consumer Product Safety Commission (CPSC) and the Department of Justice (DOJ) broke new ground by indicting two former officials of a company accused of failing to timely report a potential product safety hazard to the CPSC. Those indictments marked the first time the CPSC has sought to hold executives criminally liable based on an alleged reporting violation. But while the CPSC had never previously filed criminal charges against individual corporate officers, it has previously sought to hold individuals civilly liable for corporate actions.
Continue Reading Who’s in Charge Here? The CPSC and Individual Liability for Corporate Actions

Over the past 10 years, the number of private Proposition 65 actions against businesses have nearly quadrupled from 604 in 2009 to 2,364 in 2018. Additional Prop 65 regulations on “safe harbor” warnings and online retailers took effect last August, clarifying the duties of online retailers regarding warnings, which may have caused a decrease in new Prop 65 actions against online retailers.

In light of the new rules and litigation trends, we examine which products are likely to face litigation and offer two ways companies might avoid liability, including by (1) considering the use of “safe harbor” warnings and (2) staying up to date with Prop 65 litigation and the regulations promulgated by the California Office of Environmental Health Hazard Assessment’s (OEHHA) regulations.
Continue Reading California’s Prop 65 Amendments One Year Later: Litigation Trends and What to Look Out For