As the partial federal government shutdown enters its second week, businesses both large and small should be aware of the shutdown’s implications for the U.S. Consumer Product Safety Commission (CPSC) and for product safety. Companies should be aware that their obligations under CPSC continue, despite that their partner in product safety is absent until its funding is restored.

Continue Reading Four Things You Should Know to Navigate the CPSC Shutdown

On October 5, 2018, the U.S. Consumer Product Safety Commission (CPSC) announced that it had negotiated a $3.85 million civil penalty with Costco Wholesale Corporation over an alleged failure to report product hazards involving an electronic trash can, which CPSC alleged violated the Consumer Product Safety Act. Continue Reading Manufacturers, Retailers, and CPSC Reporting Penalties

The Consumer Product Safety Commission (CPSC) issued a final rule in October prohibiting the manufacture for sale, offer for sale, distribution in commerce, or importation of toys and child care products containing more than 0.1 percent of five phthalate chemicals. Phthalates make plastics soft and pliable, and are contained in many toys and other products intended for young children. The rule will take effect on April 25, 2018.

Continue Reading CPSC Issues Final Rule on Phthalates in Toys and Child Care Products

Calls for a government-led investigation of the potential negative health effects of crumb rubber turf are getting louder, and the Consumer Product Safety Commission is listening. Crumb rubber turf infill consists of black pellets of ground-up rubber, and it’s become increasingly popular in the construction of sports fields. Some are concerned, however, that crumb rubber turf may expose athletes to cancer-causing chemicals.

On Wednesday, January 27, CPSC chairman Elliot F. Kaye, in statements to a Florida television station, indicated that CPSC will investigate the potential risks of rubber turf.

Continue Reading Government Turf: Will the CPSC Investigate Rubber Infill?

In 1989, the Back to the Future franchise made several fanciful predictions about 2015.  One prediction may now be coming true: hoverboards have hit the streets — sort of.  The currently-available hoverboards, as opposed to the Hollywood fantasy ones, are more properly described as hands-free, self-balancing scooters.  Fueled by viral videos and celebrity social media posts, these battery-powered scooters are quickly becoming the must-have gift of the holiday season.

As the popularity of these hoverboards increases, however, so too does the potential for claims against manufacturers and sellers.  Over the last three months, the Consumer Product Safety Commission (“CPSC”) has reportedly learned about nearly 20 separate injuries from hoverboard-related accidents, ranging from sprains and contusions to broken bones and at least one head injury.   Continue Reading Oh What Fun It Is To Ride . . . A Hoverboard? This Year’s Must-Have Holiday Gift Poses Potential Litigation Risks for Manufacturers

The Consumer Product Safety Commission (CPSC) has responded to the June 27, 2015 PL&MT Blog’s post Falling off the Fast Track: CPSC’s New “Stop Sale” Demand by Jonathan Judge.  The post was republished by the National Law Review and the CPSC’s comments can be found here.  The back-and-forth is very productive and enlightening.  This post contains Jonathan Judge’s reply to the CPSC’s response. Continue Reading CPSC Engages in Productive Discussion Following PL&MT Blog Post on Fast Track Program

When a company sells a consumer product that poses a potential hazard to consumers, federal law requires that a report be filed with the U.S. Consumer Product Safety Commission (CPSC). 15 U.S.C. § 2064(b). Companies who fail to do so risk severe civil penalties. After the company’s report has been filed, the CPSC offers companies one of two tracks: (1) the Standard Track, in which the CPSC (eventually) makes a Preliminary Determination (PD) of whether the product is defective; or (2) the Fast Track, in which the company can request to conduct a recall and, in exchange, the CPSC will refrain from making an official determination of defect and help speed the process along.

For years, the Fast Track process has been a winning formula for CPSC and companies alike. The CPSC saves engineering and bureaucratic resources because it no longer has to conduct a full-blown investigation. Similarly, a company who wants to improve their product and/or protect consumers can launch a national campaign within a few weeks of filing to address problems with the product. Continue Reading Falling off the Fast Track: CPSC’s new “Stop Sale” Demand

Legal decision-makers are used to seeing other departments employ analytics to understand their customers and be more successful. Many legal departments use software or processes to control costs, but these have little to do with the ultimate outcome of particular cases or investigations. It is past time for those same tools to be put to work in improving and predicting legal outcomes. Continue Reading Using Analytics to Solve Product Liability Problems

It might be hard to call the many recent reports of record fines from the National Highway Traffic Safety Administration (NHTSA) or the Consumer Product Safety Commission (CPSC) “news”, so routine have they recently become.  In 2014 alone, NHTSA issued more than $126 million in civil penalties, exceeding the total amount collected by the agency during its forty-three year history.  As NHTSA trumpets its “success” and regulators are calling on Congress to increase maximum fines  dramatically, one wonders when those civil penalties cross the line into criminal territory.

The Supreme Court laid out a seven-factor test for determining whether statutory penalties are civil or criminal in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).  That case involved a dual Mexican-U.S. citizen who left the United States to avoid World War II military service.  The Court held that depriving him of his citizenship as a penalty for leaving the country constituted a criminal penalty that could not be imposed absent constitutional safeguards. Continue Reading When do Civil Fines by NHTSA or the CPSC Become Criminal?

The Consumer Product Safety Commission has proposed a permanent ban on certain phthalates in children’s toys and child care articles. Phthalates, a family of chemical plasticizer, give plastic products more flexibility, transparency, durability, and longevity.  They can be found in a number of everyday products, including toys and furniture. Phthalate exposure has been associated with birth defects, asthma, male reproductive issues, and early female puberty.  The proposed ban would add  to the list of phthalates already banned by the Consumer Product Safety Improvement Act (“CPSIA”).

The CPSIA currently prohibits manufacturers from using certain phthalates in children’s products.  Under the exising rules, manufacturers are not allowed to use greater than 0.1 percent individually of the phthalates DEHP, DBP, and BBP in children’s toys and certain child care articles.  “Children’s toys” refers to consumer products intended for children 12 years and younger for recreational use. “Child care articles” are consumer products manufactured for children three years or younger and made to assist in sleeping, feeding, sucking, or teething. Continue Reading CPSC Proposes Expansion of Ban On Substance Used in Children’s Toys