New Chair Hints at Change of Direction

KayeHearingTwo weeks since Elliot Kaye was sworn in as the 10th Chairman of the CPSC, he has started to indicate a direction for the CPSC that may move in a different direction in some respects than his predecessor, Acting Chair Bob Adler.

In an interview with Law360 (subscription required), Kaye said he would require “clear safety justifications” for any planned rule changes. “The guiding principles would be: What is the safety problem that we’re solving? Can it be articulated in a simple way?” Kaye. “If the rules are meant to create a certain environment, then we must explain clear safety justifications behind it.”

Kaye told Bloomberg BNA (subscription required) that he was not involved in drafting the voluntary recall rule, which was developed when he served as Executive Director of the CPSC.  Continue reading New Chair Hints at Change of Direction

    CPSC Announces Workshop on Certificates of Compliance

    The CPSC has announced a workshop on the electronic filing of certificates for regulated imported consumer products. The workshop will provide an opportunity for stakeholders to discuss how the Commission may improve the current process concerning Certificates of Compliance. CPSC staff will hold the workshop from 9 a.m. to 4 p.m. on September 18 in the 4th floor Hearing Room at CPSC’s headquarters at 4330 East West Highway in Bethesda, Maryland.

    The Commission issued a proposed rule to amend the existing rule on Certificates of Compliance (16 CFR Part 1110), but received near-unanimous criticism for its proposal. The National Association of Manufacturers and others submitted comments that were highly critical of the CPSC’s failure to work with stakeholders in identifying potential issues and policy solutions. Earlier this year, groups representing consumer product makers and sellers requested that the Commission hold a workshop.

    To register for the workshop, click here. Those wishing to attend must register by Sept. 5, 2014, although registration may close earlier if full capacity is reached. Those wishing to participate on a panel as a speaker must register by August 8, 2014.

      Last Magnet Maker Sticking

      Magnicube Spheres and Magnicube Cubes sets. Photo: CPSC.

      Yesterday, Star Networks USA LLC announced that it is voluntarily recalling its Magnicube spheres and cubes. The Star Networks settlement leaves one manufacturer “sticking,” Zen Magnets, which vows to continue to resist the CPSC and go to trial.

      The recall follows the CPSC’s settlement with the former CEO of Maxfield and Oberton Holdings, Craig Zucker, in May to recall a similar high-powered magnetic sets, Buckyballs and Buckycubes. The CPSC found that the product pose an unacceptable risk to children, even though they are solely marketed to adults as desktop toys and included warnings.

      The Star Networks’ consent agreement and the Commission ALJ’s order dismissing the case are available on the CPSC’s website. Continue reading Last Magnet Maker Sticking

        Full House

        The Commission’s new Chair: Elliot Kaye. Photo: CPSC.

        The CPSC now has a full house. The Senate confirmed Elliot Kaye (D) and Joseph Mohorovic (R) as Chairman and Commissioner, respectively, by a voice vote on July 28. They were sworn in on Thursday. 

        Kaye replaces acting Chairman Robert Adler, who has led the agency since the departure of Inez Tenenbaum when her term expired in November 2013. Adler will continue to serve as a Commissioner and he awaits Senate action on his re-nomination for a second term. His current term runs through October 2014, but can be extended an additional year if the Senate does not fill the slot.

        According to the new biography of Kaye posted on the CPSC’s website, his three priorities as Chairman are to: Continue reading Full House

          You have 6 months…

          Photo: CPSC

          …to turn in your Buckyballs.

          The website for filing claims for full or partial refunds of Buckyballs is online and began accepting claims yesterday. The no-frills website (which does not appear to function properly on Google Chrome, but works on Internet Explorer), provides a link to the recall notice, answers to frequently asked questions, and online and downloadable claim forms.

          In order to receive a refund, the form states that consumers must send their desktop toys by first-class mail in a bubble wrapped envelope or small box, with all magnets secured in a sealed bag, to a Post Office Box in Milwaukee, Wisconsin. The deadline to file a claim is January 17, 2015.

          This recall is an interesting experiment. Typically, manufacturers manage recall programs. Occasionally, retailers take on this responsibility. This may be the first instance in which the CPSC itself manages a recall. Continue reading You have 6 months…

            House Votes to Cut Off Funding for Voluntary Recall Rule

            The House of Representatives adopted an amendment to an appropriations bill that would stop the CPSC from proceeding with its proposed rule on voluntary recalls.

            Last night, Rep. Marsha Blackburn (R-TN) offered an amendment (H. Amdt. 1094) to the Financial Services and General Government appropriations bill for Fiscal Year 2015 (H.R. 5016) that reads:

            None of the funds made available by this Act may be used by the Consumer Product Safety Commission to finalize, implement, or enforce the proposed rule entitled ‘‘Voluntary Remedial Actions and Guidelines for Voluntary Recall Notices’’ (CPSC Docket No. CPSC–2013–0040).

            Rep. Blackburn hailed the success of the existing system, including the CPSC’s Fast Track Program, in facilitating a partnership between the agency, manufacturers, and retails that quickly removes dangerous products from the marketplace.

            The proposed changes, Blackburn said, would “transform the voluntary recall process into a legal negotiation equivalent to a settlement agreement,” requiring them to pay costly legal fees. If adopted, the rule would “discourage companies from working closely, efficiently, and effectively with the CPSC when potential hazards or defects are identified,” she said, emphasizing the existing processes bipartisan origins and support.

            Rep. José Serrano (D-NY) opposed the amendment. “This is an issue we should leave to the discretion of the Consumer Product Safety Commission,” Serrano said. “This is not something we should be micromanaging the CPSC on.”

            The amendment, debated on Wednesday evening, was recognized as approved by the Chair on a voice vote. Rep. Serrano then requested a recorded vote, which did not occur before Congress adjourned for the night. The full floor debate, as printed in the Congressional Record, is provided after the break. 

            UPDATE: Rep. Blackburn also offered an amendment on Monday night—which was agreed to by voice vote—that would direct $1 million to the CPSC to proceed with regulations that would decrease costs associated with third-party testing. The additional costs would be offset by a reduction in funds directed for IRS enforcement.

            The House passed the Blackburn amendment to stop funding for the voluntary recall rule (229-194) at 3:30 p.m. on July 16. The bill, including both amendments, passed at 4 p.m (228-195).

            Continue reading House Votes to Cut Off Funding for Voluntary Recall Rule

              Nominees Move Forward

              The U.S. Senate may soon consider nominations to fill three of the five seats on the CPSC, including its Chairman.

              On July 15, the Senate Commerce, Science, and Transportation Committee favorably reported the nominations of Elliot F. Kaye (D) as Chairman and Joseph P. Mohorovic (R) as Commissioner.

              The Committee also approved the renomination of Robert S. Adler (D), the current Acting Chair, as Commissioner. Seven of the Committee’s eleven Republican members reportedly voted in opposition to Commissioner Adler’s reappointment.

                Phthalates: Out of Toys But in Your Food?

                Photo: Nick Nguyen on Flickr (Creative Commons license)

                Photo: Nick Nguyen on Flickr (Creative Commons license)

                Lenny Bernstein, author of the Washington Post’s To Your Health blog, writes today:

                “Remember the great scare of 2008? Congress, in a rare bipartisan response to a clamor from parents and health experts that children’s toys made abroad were laced with chemicals that could harm boys’ reproductive systems, banned the toxins so infants would no longer ingest them by mouthing the plastic objects. And then phthalates (pronounced thal-eights) pretty much faded from public view.

                But a new study shows that an infant with a typical diet is still consuming twice as much of the chemicals as the Environmental Protection Agency considers safe.” Continue reading Phthalates: Out of Toys But in Your Food?

                  What Does the Buckyballs Outcome Mean for You?

                  This week, Law 360 published my thoughts on the Buckyballs litigation and settlement, and what it may mean for consumer product makers and retailers.

                  The full article is available here.

                    Unredacted Company Doe Decision

                    The U.S. District Court for the District of Maryland has released the unredacted decision of Judge Alexander William, Jr. in the Company Doe case and unsealed the entire docket in compliance with the Fourth Circuit’s ruling. The clerk also re-captioned the case as The ERGO Baby Carrier Inc. v. Tenenbaum. 

                    The report involved the death of an infant from asphyxiation, while held in a baby carrier, as the baby’s mother picked strawberries on a hot day.

                    Although the Fourth Circuit reversed the district court’s sealing of the record and redaction of the opinion, the district court’s ruling on the merits was not challenged on appeal.

                    The manufacturer had objected to CPSC’s publication of the report, arguing that the report was confusing, contradictory, and contrary to the medical evidence. The district court agreed, admonishing the CPSC for attempting to publish a report where the nexus between the product and the alleged harm was no more than happenstance and speculation. That portion of the decision stands.

                    Now that the district court’s ruling is unsealed, companies regulated by the CPSC can get an inside view of the workings of the agency when a product manufacturer or seller challenges a report as inaccurate. This case was the first (and remains the only) court challenge to publication of a report on the CPSC database.

                    After the break, you’ll find the initial and three reiterations of the report, and the district court’s reasoning in prohibiting the CPSC from publishing it in the database. Continue reading Unredacted Company Doe Decision