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
When a bulk container of vitamins tore and began to leak, it set into motion an unforeseen chain of events — beginning with the injury of Martin Cassidy and ending with an increased risk of strict liability for distributors of allegedly defective products.
In an Illinois strict product liability action, the court must dismiss a distributor once that distributor certifies the identity of the product’s manufacturer. Previously, a plaintiff seeking to vacate such a dismissal order — to reinstate the distributor as a defendant — had to show that the manufacturer was “bankrupt or nonexistent.” Cassidy v. China Vitamins, LLC rejected that rule. The court held instead that the distributor could be reinstated as a defendant if the “plaintiff can establish other circumstances that effectively bar recovery of the full measure of judgment damages” from the manufacturer.
What are these other circumstances? The court declined to say, leaving it up to distributors, manufacturers, their counsel, and trial courts to attempt to define them. Continue Reading I Can’t Get No Satisfaction: Illinois Revisits the Standard for Imposing Strict Liability on Nonmanufacturers
A few years ago, hoverboards drew a lot of attention from the U.S. Consumer Product Safety Commission (CPSC). Formally known as self-balancing electric scooters, hoverboards became an instant success because they combined practical mobility and enjoyment. But that success was not without some setbacks. When news stories in 2015 linked hoverboards to fires (which we wrote about here), the same popularity that drove sales also attracted public and government scrutiny.
In a surprise statement on Tuesday, Acting Chairman Ann Marie Buerkle of the U.S. Consumer Product Safety Commission (CPSC) announced that she had withdrawn her nominations for the permanent chair and for another term. Unless another nominee is confirmed in the interim, her term will end on October 26, 2019. What happens in the interim will shape the agency’s course well into the next decade. Continue Reading Buerkle Withdraws: CPSC’s Future Gets Hazier
UPDATED 7/17/2019: Six of the seven bills listed below – all of the product-specific bills – are now on their way to the floor of the U.S. House of Representatives. The House Energy & Commerce Committee and its Subcommittee on Consumer Protection & Commerce have both reported the bills favorably. The Subcommittee amended five of the bills, as noted below.
The committees did not consider the Fast Track recall bill. However, leadership from both parties committed to further collaboration and to moving the issue forward, recognizing the need to help the CPSC and companies execute recalls faster.
All of the votes in both committees were bipartisan. With a divided Congress, maintaining consensus will likely be essential to the bills’ chances in the Senate. Because of the need for consensus, CPSC-regulated companies and industries have a valuable opportunity for meaningful congressional engagement. Members usually respond to the concerns of the job-creators in their districts, and the drive for bipartisanship on these bills will only make members more receptive.
The U.S. House Consumer Protection & Commerce Subcommittee will hold a legislative markup session on Thursday for several bills related to the U.S. Consumer Product Safety Commission (CPSC). This session follows the subcommittee’s April CPSC oversight hearing, which focused on the big picture, asking whether or not the CPSC is fulfilling its mission. Continue Reading UPDATE: U.S. House to Discuss CPSC Issues, including Fast Track, Furniture Flammability, Crib Bumpers, and Infant Sleepers