The CPSC is open to any proposals. According to Acting Chairman Ann Marie Buerkle, “The agency’s recent request for information seeking public input on ways to potentially reduce burdens and costs is not limited to existing rules. CPSC is interested in hearing any and all ideas, big or small, that might help ease regulatory burdens without compromising safety.” Acting Chairman Buerkle, who was nominated to the Commission by President Obama in 2013, has said that “seeking to reduce regulatory burdens is responsible governance.” The request for suggestions is in line with Buerkle’s general policy of promoting transparency and collaboration with the industry. For a further discussion of her policies, see our previous post here.

Submissions are due by September 30. This is an opportunity for companies to provide feedback in a collaborative, constructive context. We will continue to track the comments and provide updates on any important developments.

With the complexity of today’s product safety regulatory environment and the civil penalty amounts for failure to report safety hazards, it is more important than ever for manufacturers and retailers to identify and resolve potential liability issues confidentially before they draw scrutiny from regulators and negative publicity.

Please join chair of Kelley Drye’s Advertising and Marketing and Consumer Product Safety practice Christie Grymes Thompson for an update on consumer product safety. The webinar will cover hot button legal issues and summarize significant developments in consumer product safety and at the Consumer Product Safety Commission.

Kelley Drye Speakers:

Christie Grymes Thompson, Partner

To register, please click here.

CLE Information:

Kelley Drye is an accredited provider of NY, IL & CA CLE. This non-transitional continuing legal education program has been approved for 1.0 NY Professional Practice credit, 1.0 Illinois credit, and 1.0 CA General credit. We will apply for CLE credit in other jurisdictions, upon request, but cannot guarantee approval. If you are interested in applying to receive CLE credit, please include your desired jurisdiction and your bar registration number when you register.

Follow the Practice

• Conduct due diligence. Ensure that the company making the product has incorporated safety considerations into the design and manufacturing of the product.
• Obtain contractual representations from the manufacturer or distributor. Although written assurances do not negate a retailer’s obligations with the CPSC, requiring them often can help identify gaps in the vendor’s compliance efforts that can be filled before problems develop.
• Train employees. The company should have written product safety compliance policies and train employees at all levels on how to comply with them.
• Monitor and respond to consumer reports. If your company does not participate in the manufacturing or distribution of the product, the first indicator of a safety issue may come from your customers. Companies should track the range of sources, including warranty claims, complaints, comments to customer service, phone calls, emails, saferproducts.gov, and posts to social media. If something goes wrong with a product, consumers often turn to social media to share their story, especially if they think the problem relates to safety or if they have not received a response from the company.
• Communicate with the CPSC. Section 15(b) of the Consumer Product Safety Act requires companies that manufacture, import, distribute, or sell a consumer product that could present a “substantial product hazard” or “unreasonable risk of serious injury or death” to report the potential issue to the CPSC. This can be a low threshold, and the CPSC regularly advises companies, “When in doubt, report.” If the CPSC staff is already investigating reports of fire associated with hoverboards, they will certainly take significant interest in other similar reports and in unrelated reports (such as failures in the braking functionality) involving the product.

Significantly, the Commission has backed away from its initial proposal and no longer proposes to remove the requirement that the CPSC provide advance notice if there is a question whether the public could readily identify the manufacturer. However, the Notice of Proposed Rulemaking (“NPRM”) retains several changes that would affect companies’ ability to prevent the disclosure of their information.

In particular, the NPRM, if finalized, would:

• Remove the requirement that the Commission provide notice if it republishes information previously disclosed, even if requested by the company;
• Require that companies requesting that their comments be withheld from disclosure provide a rationale, such as an applicable statutory or regulatory basis, supporting such non-disclosure;
• Permit disclosure of information designated as “attorney work product” or protected by attorney-client privilege; and
• In addition to existing exceptions, not require notification for (1) information contained in a report of harm posted on the product safety information base, (2) publicly available information, and (3) information substantially the same as information previously disclosed.