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

              Senate Committee Considers Adler Re-nomination

              Senator Jay Rockefeller, Chairman, and Senator John Thune, Ranking Member, questioned Commissioner Robert Adler. Photo: Senate Committee on Commerce, Science, and Transportation.

              Members of the U.S. Senate Committee on Commerce, Science, and Technology questioned Bob Adler, who President Obama has renominated to serve an additional term as a Commissioner. Commissioner Adler is currently the CPSC’s Acting Chairman.

              The Committee did not yet vote on any of the three pending CPSC nominations. It is likely that the Senate will eventually consider the re-nomination of Commissioner Adler along with the nominations of Elliot Kaye (D) as Chairman and Joe Mohorovic (R) as Commissioner as a package.

              Chairman John D. Rockefeller IV (D-WV), in a prepared statement, recognized Commissioner Adler as “a leading consumer protection scholar, teacher, and advocate.”

              Senator John Thune (R-SD), the Ranking Member expressed concerns in his opening remarks with the direction and some recent actions of the Commission: Continue reading Senate Committee Considers Adler Re-nomination

                “Like” My Recall?


                The CPSC is placing more emphasis on use of social media to publicize recalls.

                The Office of Compliance and Field Operations is using a new template for monthly progress reports on recalls, notes McGuireWoods partner Christina Jones in new Law360 analysis (subscription required). The form requires firms to identify whether the recall notice is posted on its website, the number of website hits during the reporting period, as well as whether the recall notification is posted through social media, including Facebook and Twitter.

                The progress report asks companies how many times the social media post has been “shared,” “liked,” “retweeted,” or “followed” during the reporting period. The report no longer focuses on reporting on the number of posters placed at retailers and other locations, although such action may still be required. Continue reading “Like” My Recall?

                  Senate Committee to Act on CPSC Nomination(s)







                  The Senate Committee on Commerce, Science and Transportation will consider the  reappointment of Acting CPSC Chairman Robert Adler (D) during a hearing this Wednesday, June 11, according to the committee’s meeting agenda. Adler is up for another 7-year term as a Commissioner.

                  The agenda notes, “It is possible that at some point during the hearing, the Committee will hold a short Executive Session to report out nominations that the Committee has previously considered.” This statement could indicate that the Committee will vote on the pending nominations of Elliot Kaye (D) as Chairman and Joe Mohorovic (R) as Commissioner. Kaye and Mohorovic addressed the Committee and discussed their priorities in an April hearing.

                  After the nominees are reported out of Committee, they will need to receive a vote on the Senate floor. Upon their appointment, the CPSC will have a full five Commissioners for the first time since 2011.

                  The hearing begins at 2:30 p.m. and will be webcast live here.


                    ACI Hosts Consumer Products Conference in Chicago

                    The American Conference Institute (ACI) will host its Second Annual Consumer Products Regulation and Litigation Conference in Chicago tomorrow. The conference runs from June 11-12.

                    The conference will include presentations by several current and former CPSC Commissioners and key staff members, experienced in-house professional from major consumer product makers, and lawyers who counsel clients on CPSC matters.

                    I will join former CPSC Chair Inez Tenenbaum in presenting on Wednesday afternoon on “Preparing for the Future of CPSC Practice — Adapting to the Visibility of the CPSC Website; Exploring the Implications of the Proposed Modifications to Notification, Certification, and Recall Rules.” Our joint presentation will discuss:

                    • and the implications of the Fourth Circuit’s Company Doe decision for challenges to inaccurate reports;
                    • The proposed modifications to the certificate of compliance regulation (Section 1110 Rule);
                    • How the proposed changes to the voluntary recall process would impact manufacturers and whether, or what portion, of the rule might move forward;
                    • The implications of the Buckyball litigation/settlement for individual liability.

                    There will be a pre-conference workshop and several other interesting panel discussions, including a discussion of civil penalties and how CPSC action can impact litigation. A panel will also discuss defending “no injury” lawsuits, class actions in which few, if any, of the class members experienced an actual financial loss.