Photo: US CPSC on Flickr (Creative Commons license)
The CPSC has issued an Advanced Notice of Proposed Rulemaking (ANPR) to address the strangulation risk posed to young children from cords on window coverings. The proposal, which stems from a petition filed by several consumer groups, would prohibit the use of cords on blinds or would require use of a guard when there is no other alternative to a cord. The period for public comment on the new rule extends until March 17.
The ANPR cites 184 reported fatalities and 101 non-fatal injuries from strangulation due to children getting entangled in window cords over a 16 year period (1996-2012), about 11 deaths per year. Most involved pull cords on horizontal blinds. The CPSC found no observable trend in the data, meaning that the number of incidents does not appear to be increasing or declining based on available information.
When should a federal agency require change in a product we use each day? When is a warning label enough? When is a device that reduces the risk sufficient? When should the CPSC ban a product entirely?
When businesses learn of potential safety issues regarding their products, they must determine whether they have a reporting obligation to the CPSC or another agency.
In our first CPSC 101 post, we explained that generally, if another federal agency has jurisdiction over a product, as is the case with food, drugs, or cars, then the CPSC will not be involved.
If the product does not fall under another agency, then the question becomes: Is my product a “consumer product” under federal law?
In many instances–toys, children’s clothing, cribs, bike helmets, strollers or any product for which there is a specific CPSC rule or standard–the answer to this question is clear: yes. When a product is predominantly sold to businesses, has multiple uses, or is not marketed to consumers, however, product sellers enter a gray area.
Here are some factors the CPSC and courts consider when determining whether your product is a” consumer product” that raises a reporting obligation (as well as other CPSC regulatory compliance requirements). Continue reading Do I Sell a Consumer Product?
Congress has approved $123 million in funding for the CPSC in FY 2015, $5 million more than the agency received last year.
The Senate signed off on H.R. 83, The Consolidated and Further Continuing Appropriations Act, 2015, on Saturday (56-40). The House had passed the amended appropriations bill on December 11 (219-206).
An explanatory statement (full text after the jump) accompanying the House bill expresses Congressional intent regarding use of the funds, specifying $1 million for burden reduction and $4 million for port surveillance, and cautioning the CPSC against proceeding with “unnecessary changes” to the voluntary recall process and altering an information disclosure process that has facilitated “openness and trust” in reporting.
The report also requires the CPSC to indicate to Congress where voluntary standards for consumer products exceed the agency’s mandatory safety standards and what, if any, legislative changes are needed to allow the CPSC to promptly update its mandatory standards.
Bloomberg BNA reports (subscription required) that Congress did not approve the CPSC’s request for authorization to charge regulated businesses user fees to support the agency’s import surveillance program. CPSC Chairman Elliot Kaye expects to ask Congress again for such power in the future and is optimistic that Congress will eventually approve the request.
The Commission met this morning and approved an FY 2015 Operating Plan. The briefing package is available here.
The FY 2015 Budget Request is for $123.0 million and 567 full-time equivalent (FTE) employees, representing an increase of $5.0 million from the FY 2014-enacted funding level of $118.0 million. This increase is targeted to expand the CPSC’s import surveillance program.
The Commission approved the Operating Plan (5-0) with two amendments: a manager’s amendment that included allocation of $1 million to burden reduction, and an amendment proposed by Commissioner Marietta Robinson to review and potentially update the agency’s mandatory fireworks standard.
Originally aired 38 years ago today, Saturday Night Live recently replayed “Consumer Probe” as part of its Christmas special. A lot of the humor is lost without watching Dan Aykroyd’s delivery as toy salesman Irwin Mainway (opposite Candice Bergen as the consumer reporter). You can view the skit by clicking above, but here’s its opening:
Consumer Reporter: Good evening, and welcome to the holiday edition of “Consumer Probe”. Our topic tonight is unsafe toys for children. For instance, this little bow and arrow set. [ holds up ] Pull the rubber suctions off, and the arrows become deadly missiles….
Consumer Reporter: ….Well, we’d like to show you another one of Mr. Mainway’s products. It retails for $1.98, and it’s called Bag O’ Glass. [ holds up bag of glass ] Mr. Mainway, this is simply a bag of jagged, dangerous, glass bits.
Irwin Mainway: Yeah, right, it’s you know, it’s glass, it’s broken glass, you know? It sells very well, as a matter of fact, you know? It’s just broken glass, you know?
Consumer Reporter: [ laughs ] I don’t understand. I mean, children could seriously cut themselves on any one of these pieces!
Irwin Mainway: Yeah, well, look – you know, the average kid, he picks up, you know, broken glass anywhere, you know? The beach, the street, garbage cans, parking lots, all over the place in any big city. We’re just packaging what the kids want! I mean, it’s a creative toy, you know? If you hold this up, you know, you see colors, every color of the rainbow! I mean, it teaches him about light refraction, you know? Prisms, and that stuff! You know what I mean?
Consumer Reporter: So, you don’t feel that this product is dangerous?
Irwin Mainway: No! Look, we put a label on every bag that says, “Kid! Be careful – broken glass!” I mean, we sell a lot of products in the “Bag O'” line.. like Bag O’ Glass, Bag O’ Nails, Bag O’ Bugs, Bag O’ Vipers, Bag O’ Sulfuric Acid. They’re decent toys, you know what I mean?
I’m guessing this 1976 skit was a big hit at the fledgling CPSC, whose offices probably still had that new-car smell. A full transcript of the skit is also online.
In a typical year, 100% of recalls are undertaken on a voluntary basis, meaning that the company initiates the recall on its own or does so after persuasion by CPSC staff.
The CPSC has significant leverage to prompt a voluntary recall.
The CPSC takes the position that, with respect to Zen Magnets, no amount of warnings on the products can sufficiently protect children from serious injury because once the product is removed from the box and packaging, the warnings no longer accompany the product. This CPSC policy position could impact other manufacturers.
A Zen Magnet victory may lead more businesses to resist CPSC staff’s call for a voluntary recall when a manufacturer believes that the product is safe, except when misused, and includes adequate warnings. Businesses that sell a single or few products have the most at stake, but may not have the resources for a lengthy battle.
The trial is unlikely, however, to lead many businesses to litigate a recall, rather than agree to voluntary action. But as the CPSC becomes more aggressive in seeking recalls or imposing conditions on recalls (such as those authorized by the proposed voluntary recall rule), companies may more closely consider their options.
Cary Silverman is an attorney in Shook, Hardy & Bacon L.L.P.'s Public Policy Group. He advises businesses and trade associations on CPSC matters, including reporting obligations, recalls, regulations, legislation, and policy. [Read more]