Rare CPSC Trial Ends; Ruling Not Expected for 3 Months

After a three week adjudication before an Administrative Law Judge, the CPSC and Zen Magnets have rested their cases.

Closing arguments may be submitted in writing early this year, according to Bloomberg BNA.

The rare trial, the first in about thirteen years, is not expected to result in a decision until April, according to a brief statement recently posted by the company.

The case is being closely watched and could have implications for other consumer product makers.

Zen Magnets is preparing for two alternative outcomes. Continue reading Rare CPSC Trial Ends; Ruling Not Expected for 3 Months

    Congress Approves CPSC Funding for FY 2015

    HR83Congress 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.

    Continue reading Congress Approves CPSC Funding for FY 2015

      Commission Approves FY 2015 Operating Plan


      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.

      The Commission voted down, 3-2, two amendments offered by Republican Commissioners. Continue reading Commission Approves FY 2015 Operating Plan

        Bag O’ Glass

        Saturday Night Live - "Consumer Probe"

        Click to view video at NBC.com

        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.

        Happy and safe holidays to our readers!

          Implications of Zen Magnets Trial

          Law360 has an article today exploring the broader implications of the Zen Magnets trial, which continues this week.

          Here are some observations from the article, “CPSC’s Recall Authority Put To Test In Magnet Trial” (subscription required):

          • 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.

            Denver Post Covers CPSC Trial

            Reporter Steve Raabe covers the Zen Magnets trial in a Denver Post article published Thursday. Zen Magnets is based in the Mile High City.

            The company has reportedly spent $100,000 on legal fees to defend its ability to sell magnetic balls, an amount that is about 20% of its projected sales for 2014.

            In order to avoid selling the sets to children, Zen began selling magnets at Colorado marijuana dispensaries, where customers by law must be at least 18 or 21 years old.

            According to the article, the company plans to separately appeal the CPSC’s final rule on magnet sets to the 10th Circuit when the rule takes effect in April.

            The first week of what may be a three-week trial concluded today.

              Rare Adjudicative Hearing (CPSC Trial) Begins


              Photo: Brian Turner.

              An extremely rare adjudicative hearing is underway.

              The CPSC is making its case to an Administrative Law Judge that Zen Magnets should be forced to recall what the CPSC characterizes as “aggregated masses of high-powered, shiny, metallic-colored small rare earth magnets,” i.e. desktop adult magnet sets.

              This is the first such hearing, which resembles a trial, in over a decade.

              The fairness of the adjudicative process, the hearing, and the ultimate outcome of the action may provide guidance to businesses considering whether to resist a push for a recall from CPSC staff that is viewed as unwarranted or over-aggressive. Continue reading Rare Adjudicative Hearing (CPSC Trial) Begins

                Senate Approves Adler

                AdlerVoteAt 5pm today, the U.S. Senate approved the nomination of Bob Adler for a second term on the Commission.

                Adler’s reappointment was confirmed by a 53-44 vote, which divided along party lines.

                The Commission’s membership is not likely to change for at least three years. Below is the current commissioner roster with the expiration of their terms in parentheses. A commissioner can serve until his/her replacement is sworn in or up to one year after a term expires, whichever is sooner.

                • Marietta Robinson – D (October 26, 2017)
                • Ann Marie Buerkle – R (October 26, 2018)
                • Joseph Mohorovic – R (October 26, 2019)
                • Elliot Kaye, Chairman – D (October 26, 2020)
                • Robert Adler – D (October 26, 2021)

                  Adler Nomination Nears Vote

                  AdlerOversightThe U.S. Senate today approved cloture on Robert (Bob) Adler’s (D) nomination to a full 7-year term on the CPSC.

                  The Senate agreed to cloture at noon today by a 50-42 vote, divided on party lines.

                  Given the outcome of the cloture vote, it is likely that Senate will vote to continue Commissioner Adler’s service on the CPSC. That vote could occur as early as this evening (watch here for an update).

                  President Obama initially appointed Adler, a long-time consumer advocate, in 2009. He served as Acting Chair of the Commission when Chair Inez Tenenbaum stepped down at the expiration of her term in December 2013 until Elliot Kaye’s appointment to the Chairmanship in August 2014.

                    CPSC Chair Interview With ABC News

                    PHOTO (ABC News): CPSC Chairman Elliot Kaye speaks with ABC News.

                    Chairman Elliot Kaye will discuss consumer product safety issues on ABC World News Tonight with David Muir and 20/20. The interview will air tonight.

                    According to ABC News, the CPSC is launching a “major campaign” to stop the sale of recalled products online.

                    In an preview of the interview this morning on Good Morning America, Chairman Kaye took Craigslist to task for not effectively blocking the sale of recalled products. An ABC News investigation found many recalled products posted for sale on the popular online ad site.

                    UPDATE: Craiglist’s CEO fired back with an open letter to the Chair. “Imagine our dismay when you and ABC ‘came out shooting’ at craigslist,” Jim Buckmaster writes. “Last we knew from your representatives, earlier this year, we were taking all appropriate steps to reduce the number of free classified ads for recall items by craigslist users.”

                    The full ABC News report is now online.