CPSIA – ICPHSO Update on Recall Law and Procedures

This panel discusses technical legal issues. You need to hire a lawyer to explore these issues. This blog is not a substitute for qualified legal representation. As previously noted, I am working off my notes, too. Please proceed with due and appropriate caution.

Panel included

• Eric Stone, K&L Gates LLP
• Georgia Ravitz, Arent Fox LLC
• David Baker, Law Offices of David Baker LLC

Eric Stone: Section 15(a) of CPSA limits the agency’s authority to pursue only items presenting a substantial risk of injury or death. The agency has the right to sue for the same thing under Section 15(c) (mandatory recalls, very rare).

The prior law allowed manufacturers to elect the form of recall program. The CPSIA changed that, and gives the CPSC the authority to make those choices now.

Under Section 15(j), the agency can make a “substantial product hazard” findings across an entire product category, essentially by way of rulemaking. There are certain prerequisites to taking this action. The poster child for this is drawstrings in hoodies.

New violations of law INCLUDES reselling recalled items EVEN IF it was wholly voluntary or initiated entirely by the company without CPSC judgment. That recall is also enforceable in 51 jurisdictions. [Something to think about before you climb on the Fast Track Recall freight train . . . .] False statements or “attempting to mislead” the CPSC has dramatic implications under the new law. Don’t go there . . . .

New penalty factors include a failure of the violator to respond “in a timely or complete fashion to the CPSC’s requests for information and immediate action”. Hmmm. Felony penalties now include asset forfeiture. Yep, that baby’s raising its head again. In theory, the government can take your assets which it believes you have gotten through ill-gotten gains, like your house, your business, your buildings or plant. Hmmm. Love that CPSIA . . . .

David Baker:

1. “Substantial Product Hazard” – no definition in the statute or in the legislative history. CPSC and the courts (Mirama Enterprises case) have interpreted it. Factors include death, grievous bodily injury (mutilation, dismemberment, severe burns, injuries likely to require extensive hospitalization). He asserts that MANY of the recalls initiated last year do NOT meet this standard. [RW: Where have I heard that before???] More than 1/3 of recalls do not involve injury AT ALL and many of the others fall far short of “grievous bodily injuries”. DB: Should the CPSC be taking these cases? Should they simply say thanks for the report but no action is required?
2. Fast Track versus Slow Track – Express lane to a press release. No “finding” of a defect, possibly helpful in a product liability case. Fast Track cases aren’t always so “fast”. Are there cases in FT that because they have no injuries shouldn’t be there? Is there still a slow track?
3. Penalty phase – “NO GOOD DEED GOES UNPUNISHED.” Every recall files is reviewed by the General Counsel’s office for late reporting, including those without injuries. There are MANY civil penalty cases being prosecuted out there now. [This could be you, baby.] Is the CPSC going after its own constituency? There is a very accomplished ex-U.S. Attorney now on staff at the CPSC (I think he is referring to Mary Murphy).

Ouch.

Last to present is Georgia Ravitz on Section 6(b) (unilateral press releases by the CPSC and their coercive power). Information that manufacturers submit to the CPSC are protected from disclosure to the public. Section 6(b) is the section governing procedures for releasing such information. [This is why Sectionn 6(b) is continually under attack by consumer groups. Their need for information trumps the interest of manufacturers in this confidentiality pledge. . . or at least so they say.]

CPSIA amendments to Section 6(b) gives the agency the right to issue unilateral press releases. The CPSC must “find” that the situation is so urgent that public interest in immediate release of information about a product hazard over the time permitted for review under Section 6(b).

Gives examples of such unilateral releases. The first one related to Simplicity bassinets. [They were already bankrupt and their assets had been auctioned off.] Other examples include the Witco “Recall to Repair” stadium light poles. GR notes that there is some concern that this release evidenced the CPSC acting in a rushed manner.

GR wondered aloud whether the right to preemptively issue press releases is being used “appropriately”. [Georgia is very polite.] She quotes from the legislative record to note that Congress wanted to give the CPSC the ability to inform the public about “hazardous products”. In other words, there must be certainty that the product is actually hazardous. She quoted from a speech from Chairman Tenenbaum where she indicated that the agency will use its powers to get its way, and then quoted from my December 2010 Senate testimony on coercive incidents at the agency. . . .

GR says that if the new powers under 6(b) are being used to coerce agreement, then the provision is being misused or being used in a way not intended by Congress. [I agree.] Coercion stifles meaningful dialogue. She thinks this provision should be used as a last resort and only use when there is no responsible party left (bankruptcy) or when the violator is clearly abusing the process through foot dragging.

GR calls for a return to “the way it used to be”, namely a more open and less coercive deliberation at the agency over disputes. David Baker indicates that he has NEVER overturned a Preliminary Determination letter. [CPSC as judge and jury. That's a tough combo to overcome.]

Eric Stone: How do you overcome the impression that a company is “evil”? Baker – meetings at the agency are much rarer today, most communciations by phone call or email. Leads to more disagreements and makes disputes harder to resolve. Speed leads to this manner of communication. GR: My experience is that expressing a cooperative attitude with CPSC compliance officers will typically be reciprocated.

Gotta go catch my plane . . . .

Read more here:
CPSIA – ICPHSO Update on Recall Law and Procedures

CPSIA – ICPHSO Mock Civil Penalty Jury Exercise

There has been only ONE court decision relating to late reporting penalties, and it was a resounding victory for the government. A juice company lost a case in California in federal court. Since there is no little law on the subject, the presenters today assert that there is no way to predict how a future case might be decided.

The panel today:

• Eric Rubel, Arnold & Porter LLP
• Cheryl Falvey, GC of CPSC
• Sean Laane, Arnold & Porter LLP
• Richard Levie, retired Judge and current arbitrator/mediator
• Mary Murphy, Asst GC, Div. of Compliance, CPSC

The panel presentation was designed as a mock trial. Both sides of the case will be presented, and you can clearly how both sides will portray this incident and both are compelling.

First to present was Mary Murphy on behalf of the government. She emphasized the facts of the injury to the child. This is clearly how you and your company will be made to look worst. This is no surprise and is standard fare for a plaintiff in a lawsuit. She likewise related the prior reporting of the risk or incidents (to the company and to the CPSC) that suggested the hazard.

Needless to say, this is the reason that consumer groups want the database. They want to create a body of evidence to coerce product changes ahead of injuries. Of course, any responsible company monitors market data (such as consumer reports) to do just that sort of thing. The database, however, is fodder for lawsuits and facilitates this kind argument. The likely impact is that the cases of plaintiffs will be strengthened and awards will grow.

Shall we take a trip down memory lane and remind ourselves of the principal source of funding for the consumer groups active in children’s product safety? Are you surprised to know that it is trial lawyers and the plaintiffs bar?

Back to the presentation of Ms. Murphy. She’s doing a good job making the manufacturer look bad, almost venal. She links the injury back to a failure to report. This is because of the asserted critical role of the CPSC in keeping America safe. She poses the question “would this injury have occurred but for the failure to report?” She argues that ten reports from consumers (of the hazard, loose beads on a high chair, not injuries) created an obligation to report based on a substantial risk of injury or death. She likewise anticipates that the defense will be that the manufacturer had no duty to report. She says that the late reporting only took place when the manufacturer’s back was “up against the wall”. Again, Murphy emphasizes her story about the motivation or mental state of the company.

More evidence used against the company included multiple written reports by the CPSC to them of consumer complaints. Ms. Murphy is painting a clear picture of a company that is not acting on a known safety issue. She indicates that the company ignored this information based on poor advice, despite internal admissions that “this was an accident waiting to happen”.

You can see that the facts of this hypothetical case opens manufacturers up to bad behavior portrayals. I applaud the effort to make this clear – you need to take this on board. The facts of this case appear extreme and objectionable. Media and political over-reaction to this kind of corporate behavior sent the REST OF US down the river under the CPSIA.

The defense was offered by Sean Laane. He noted the responsible behavior of the company by repeatedly testing the goods using CPSC standards and CPSC-accredited independent labs. Noted that the CPSC tested the product TWICE after reports of incidents from consumers – and the products passed! [Note that any safety system that overly depends on testing will ALWAYS expose a company to risk if it is distracted from or chooses to ignore contrary information from the market. This is a basic flaw in the reasoning of the consumer groups and the folks behind the CPSIA.] He goes on to note that the CPSC can’t have it both ways, since it never concluded that action was required based on the incidents it was aware of. After all, the CPSC had several reports and did nothing. Claims the CPSC takes a “gotcha” approach because although it claims “late reporting”, it was well-aware of the issue long before the injury – and did nothing.

Laane notes the extensive investment of this company in safety. He questions whether there was a reasonable basis to conclude that there was an unreasonable risk of injury or death. Clearly the CPSC didn’t feel it was an unreasonable risk itself! Also notes that you don’t have to tell the CPSC about information the agency already possesses. Notes repeatedly that the CPSC’s actions or inaction are based on their expertise and fact findings, thus confirming the reasonableness of the company’s approach. Notes that companies have no obligation to make products utterly indestructible.

Laane noted that the person inside the company who called the condition “an accident waiting to happen” was not a QC person or responsible manager. Instead, he was a customer service rep, and relayed that message to the QC department for their evaluation. Child who was injured later fully recovered, and the company chose to immediately initiate a Fast Track recall.

An interesting point made by Levie is that the company’s awareness of similar issues in similar products can be held against them. If they knew or SHOULD HAVE KNOWN about other recalls or notorious injury incidents reflects on their later decisions or inaction. [I am glad I don't make baby monitors . . . . This is a good lesson on the reality of the problem of "emerging hazards". Note that you are going to be judged not just on what you know, but also on what they assert you SHOULD have known.]

CF: One of the most persuasive arguments made by defendants is a track record of reporting to the CPSC. This shows a commitment to safety and cooperation with the CPSC, demonstrating trust that the CPSC will not recall product everytime.

Levie agreed that this fact pattern will also be persuasive to a judge.

All market participants need to think about this kind of issue and how they might fare if they face a similar dilemma.

Read more here:
CPSIA – ICPHSO Mock Civil Penalty Jury Exercise

CPSIA – ICPHSO Update on the Database

Cheryl Falvey announced at the beginning of this overtime Q&A session that she wants to have a civilized discussion of the problems of the database, because they want to solve problems. That said, she said she’d cut it short if it turns into a gripe session about the database “because I know you hate the database”.

Nice, at least the General Counsel of the CPSC has an open mind! This reminds me of her aggressive and utterly unsympathetic suggestion at the November 2008 CPSC Lead Panel that we should all have a big “yard sale” of products that exceed the lead standard. Gave me a warm feeling then, gives me a warm feeling now.

I will try to craft some questions that she will find acceptable.

CF: Need to have your licensees register as part of the database. Licensors can also be listed as a “viewer” under the DB. They may not want that, because there could be liability issues.

[RW: Hmmm, I thought this database was all about empowering consumers. Liability? Empowering consumers to do WHAT?]

CF: More details given to licensors [aimed at Disney, who must have raised this question offline] plus some legal advice on how they should structure their licensing agreements “right now”.

CF: It’s a “complaint” database, not a “causation” database. [RW: This makes NO sense based on the stories they all tell about why they want the database implemented, especially the fantastic story told by Inez Tenenbaum in her keynote speech. She says she feels good when someone removes a product from use while the CPSC is working on a recall. This is CLEARLY all about making a JUDGMENT on the products - in other words, CAUSATION. It's a tall tale to contend that the general public will understand that this is a complaint database. Consume groups promote the database as a warehouse of the truth, not just a "blog". Cheryl Falvey is spinning yarns to justify her work on the database.]

CF: You are raising policy questions and this meeting is not about policy. We were dealt this hand and were told by the Commission to get the database up and running. If you disagree with the policy, you need to take it to the Hill. I am going to take other questions now.

[RW: So we cannot complain about the consequences of CPSC action on the database because they're just doing their job. We must hold them harmless and "get used to it". This is an old argument used by Falvey in past speeches - don't be in denial, it's coming, get used to it, take it on board. My question for you - do you like being treated this way? I don't.]

Q: We have been the victim of fraud where people submit pictures of “injury” pulled from the Internet. We also don’t get enough data from you, may not have consumer’s contact information and don’t have the time or resources to properly research or resolve these accusations before the ten days are up. At that point, the damage is irreversible. What can we do to protect ourselves?

A: We have not had bad experiences in the “soft launch”. We don’t want you to be hurt, you should “raise” these issues. [Didn't she say this morning that they received so many photos that they had to get new servers? No problelms . . . .]

[RW: Fingers-in-ears. This does not correspond to the rules, Cheryl, and you didn't answer the question. The question notes that there won't be enough time or information to verify or sort out the claim before it's published. Why are you deaf to this? You know that your publication of this data CANNOT be remedied. Oh yeah, you are just doing your job.]

Q: Why can’t you just test this system with people who have already registered and learn about the issues from this experience?

A: Your idea is a “great idea” and we will see if we can run with it.

[RW: Don't hold your breath.]

CF: We really want to talk about the brand and license issue!

Q: What will happen to me if an injury report blaming me for an exploding battery is actually counterfeit?

A: The interest is in protecting the public, that’s the policy issue. The disclaimer seems to mean a lot to Cheryl, cures all these ills. She poses the question of whether bulking up the disclaimer.

[RW: The answer to all of these question boils down to the fact that manufacturers have no due process rights because their rights are deemed inferior to consumers. This is a policy decision, too, and is NOT part of the law. It's the philosophy of the CPSC these days, and is political in nature. Using Falvey to announce the policy makes it look more like a legal judgment, however. Falvey has not explained HOW due process rights guaranteed by the Constitution have been removed for U.S. corporations under the CPSIA.]

CF: Can’t put off the March 11th implementation of the database.

[RW: Recall my remark about an open mind. This isn't a gripe session, this is a venting session hosted by Cheryl Falvey. She has no interest in making any changes - consumer groups get their way. Mike Pompeo's amendment better become law. The CPSC will do NOTING to address known defects in the database. As Falvey says, these are "policy" issues, outside her job spec.]

Q: Can manufacturers reply or comment privately?

A: Nope, if you comment, the comments need to be published. Only the confidential parts of the comment won’t be posted. [RW: This is so unbelievably one-sided. It's victory for the left wing. They put their people in charge and let them run amok.]

Q: We share brands with other companies (think of celebrity brands). How will you handle notification tied to such brands on multiple products?

A: The tracking labels would really solve all of these problems! We need to be able to send the notice to somebody. We understand the gap and are working to make the system better. We have a lot of brand information already.

Q: We traditionally get written notices that identify us as a manufacturer of a halogen table lamp. We make 20 halogen table lamps. What will happen under the database?

A: You’ll get the notice and if you can’t give us information on the product, one of us will have to call the customer. In any event, the data will go up on the database.

[RW: This is a classic problem illustrating how manufacturers will be unable to verify information or contest information before it's posted. As Falvey demonstrates, CPSC policy is that this is the manufacturer's problem. This is a travesty. Ironically, the issue was subtle enough that the questioner (a large company) could not see that he is prevented from identifying the product - even to verify that he made it - but will be labeled the source of a product "incident". And Falvey says that a claim this lame will still make the cut to be published. Is that true? I wonder about that. If it doesn't make the cut, then Falvey can't match the rules to a scenario accurately. One way or another, it's a screwing. Thanks, CPSC!]

Q: If Li & Fung registers and gives my name as importer of record, who gets the notice?

A: We will go off the consumer complaint. Whoever is named will get the complaint. If they are registered, they will get it by email. If they are not, they get it snail mail. It’s still going up in ten days.

What a nauseating way to finish out such a lovely day.

Read more here:
CPSIA – ICPHSO Update on the Database

CPSIA – ICPHSO Update on Compliance and Field Operations

Marc Schoem moderated a discussion involving four other heads of department (he is an acting department head, too):

• Dean Woodard, Dir., Defect Investigation Div.
• Mary Toro, Dir., Regulatory Enforcement Div.
• Dennis Blasiua, Eastern District Div., Field Investigations Div.
• Kathleen Lisius, Compliance Investigator, Import Surveillance Div (standing in for the director today).

DW: This division has four teams. Fast Track Recall program does not let you off the hook for reporting violations. It does avoid a “Preliminary Determination”. This is a very “successful” and very “positive” program. Less bureaucracy and less “red tape”. “Saves lives” and “limits your exposure” to whatever issues there may have been.

[RW: It is ALSO one of the most remarkably coercive programs administered by the CPSC. You are very often, if not always, given a short period of time to decide whether to participate. By "short", this could mean HOURS to decide. Hope you are always at the ready!]

MT: Four teams based on hazard. Four team leaders and 16 compliance officers. Different backgrounds on the team, lots of tech know-how and skills. This team does a lot of advising and gives a lot of guidance to industry. Have more than double the previous total of regulations that they have to enforce. Field staff goes out to do inspections. Develop field investigation programs for the year. Now MUST report under Section 15 for a violation of a mandatory standard. [Them's a lot of reports!] All such items also have a certification requirement.

DB – Does hundreds of inspections annually. Surveys, too. Visits to consumer homes and “no one leaves in handcuffs”. [He said this in a joking manner.] Has roughly 100 investigations but gets tens of thousands of complaints annually. [RW: Now all that crap will go into the database. Can we see any issues here?] Emphasizes the politeness of his investigators. [RW: I appreciate this approach. I take him at his word.]

DB: Says we need to monitor the Internet for consumer complaints online. The CPSC is monitoring it so you better. Hmmm. DB says this may warrant investigation or spawn an investigation. More and more will send out investigators or ask for proof of destruction of recalled merchandise. Apparently, the re-export of recalled merchandise is up to Tim Geithner. [Fortunately, he's not too busy . . . .]

KL: Import Surveillance Div: Last year, not surprisingly, set a record of samples taken at port. 91% of the samples were violations, but only two products were recalled. Stopping at the port prevented the recalls. [This is interesting data. Are they clairvoyant or does everything coming into this country violate this godforsaken law in SOME way?] In apparel imports, the “first thing they look for” is drawstrings. Don’t go there. . . .

Q&A: What if you disagree with the conclusions of your compliance officer? What are your due process rights?

MS: You are encouraged to call “up the chain”. We are concerned to be responsive and want to know if you feel something is amiss.

60% of recalls come in under the Fast Track Recall program. In other words, this decision is made to pick up the “benefits” of the FTR program but also muddy the water about the state of the law on “substantial product hazards”.

[RW: This is a total cop-out on the part of the agency and contributes significantly to the confusion on the workings of the law. In addition, the defects in the FTR program make everything worse. Marc Schoem admitted during Q&A that you often have only a DAY to decide whether or not to participate, which is inherently coercive. For most companies, unprepared for a federal agency descending on them with an "offer that you can't refuse" with an eight hour time limit, the pressure can be overwhelming. It is not unusual to get this "fine" offer before all relevant facts are known, and even when basically NO relevant facts are known. One wonders if the Shrek glasses recall was one such event. See no evil, hear no evil, speak no evil?]

Why call everything a “recall”? MS: We like the word “recall” and think it’s most effective to “get the word out”. [See Nancy Nord's blogpost from earlier today. The word also has tremendous under the CPSIA - perhaps Mr. Schoem's favorite word needs to be revisited since things have changed. It is also a tough word when there is litigation going on.]

Read more here:
CPSIA – ICPHSO Update on Compliance and Field Operations

CPSIA – ICPHSO Update on Compliance and Field Operations

Marc Schoem moderated a discussion involving four other heads of department (he is an acting department head, too):

• Dean Woodard, Dir., Defect Investigation Div.
• Mary Toro, Dir., Regulatory Enforcement Div.
• Dennis Blasiua, Eastern District Div., Field Investigations Div.
• Kathleen Lisius, Compliance Investigator, Import Surveillance Div (standing in for the director today).

DW: This division has four teams. Fast Track Recall program does not let you off the hook for reporting violations. It does avoid a “Preliminary Determination”. This is a very “successful” and very “positive” program. Less bureaucracy and less “red tape”. “Saves lives” and “limits your exposure” to whatever issues there may have been.

[RW: It is ALSO one of the most remarkably coercive programs administered by the CPSC. You are very often, if not always, given a short period of time to decide whether to participate. By "short", this could mean HOURS to decide. Hope you are always at the ready!]

MT: Four teams based on hazard. Four team leaders and 16 compliance officers. Different backgrounds on the team, lots of tech know-how and skills. This team does a lot of advising and gives a lot of guidance to industry. Have more than double the previous total of regulations that they have to enforce. Field staff goes out to do inspections. Develop field investigation programs for the year. Now MUST report under Section 15 for a violation of a mandatory standard. [Them's a lot of reports!] All such items also have a certification requirement.

DB – Does hundreds of inspections annually. Surveys, too. Visits to consumer homes and “no one leaves in handcuffs”. [He said this in a joking manner.] Has roughly 100 investigations but gets tens of thousands of complaints annually. [RW: Now all that crap will go into the database. Can we see any issues here?] Emphasizes the politeness of his investigators. [RW: I appreciate this approach. I take him at his word.]

DB: Says we need to monitor the Internet for consumer complaints online. The CPSC is monitoring it so you better. Hmmm. DB says this may warrant investigation or spawn an investigation. More and more will send out investigators or ask for proof of destruction of recalled merchandise. Apparently, the re-export of recalled merchandise is up to Tim Geithner. [Fortunately, he's not too busy . . . .]

KL: Import Surveillance Div: Last year, not surprisingly, set a record of samples taken at port. 91% of the samples were violations, but only two products were recalled. Stopping at the port prevented the recalls. [This is interesting data. Are they clairvoyant or does everything coming into this country violate this godforsaken law in SOME way?] In apparel imports, the “first thing they look for” is drawstrings. Don’t go there. . . .

Q&A: What if you disagree with the conclusions of your compliance officer? What are your due process rights?

MS: You are encouraged to call “up the chain”. We are concerned to be responsive and want to know if you feel something is amiss.

60% of recalls come in under the Fast Track Recall program. In other words, this decision is made to pick up the “benefits” of the FTR program but also muddy the water about the state of the law on “substantial product hazards”.

[RW: This is a total cop-out on the part of the agency and contributes significantly to the confusion on the workings of the law. In addition, the defects in the FTR program make everything worse. Marc Schoem admitted during Q&A that you often have only a DAY to decide whether or not to participate, which is inherently coercive. For most companies, unprepared for a federal agency descending on them with an "offer that you can't refuse" with an eight hour time limit, the pressure can be overwhelming. It is not unusual to get this "fine" offer before all relevant facts are known, and even when basically NO relevant facts are known. One wonders if the Shrek glasses recall was one such event. See no evil, hear no evil, speak no evil?]

Why call everything a “recall”? MS: We like the word “recall” and think it’s most effective to “get the word out”. [See Nancy Nord's blogpost from earlier today. The word also has tremendous under the CPSIA - perhaps Mr. Schoem's favorite word needs to be revisited since things have changed. It is also a tough word when there is litigation going on.]

Read more here:
CPSIA – ICPHSO Update on Compliance and Field Operations

CPSIA – Nancy Nord Chimes in on Baby Monitors

You gotta read Nancy Nord’s blog on the baby monitor recall. It speaks for itself and is basically on the topic of why they call certain actions “recalls” and others something else. In the controversial recall of Summer Infant baby monitor, Ms. Nord notably admits the involvement of the CPSC in this recall. Check it out. This is NOT my imagination.

Read more here:
CPSIA – Nancy Nord Chimes in on Baby Monitors

CPSIA – ICPHSO Update on CPSC Hazard ID and Reduction Efforts

Breakout session with Jay Howell and DeWane Ray.

Has 19 team members in ports of entry. Dedicated to working with Customs to ensure compliance with regulation. Looking over manifests and are focusing on problems products and “problem importers”.

Jay’s and DeWane’s department also accredits labs. This is mandated by the CPSIA. Working on rules on how to get accreditation recognition and how you can lose that accreditation. Likewise, they are starting an audit function.

RW: It’s amazing that we lived without all this until 2008. Has a single incident been revealed that justify this use of government funds? Not to my knowledge.

JH: Have 90 days to start using labs and if there are not enough labs within 90 days, the CPSC MAY stay the requirement until there are insufficient labs. Don’t want to shut down an industry.

There are more lead-in-paint labs than anything else (more than 200).

New lab update: Located in Rockville, anticipating a Spring 2010 move-in.

Heavy metals work is focused on the eight metals mentioned in ASTM F963, Looking at it from a risk-assessment standpoint. [RW: That's somewhat odd these days. One wonders what constitutes a risk now. We can only hope that professional staff will exercise the same care as in the pre-looney era to assess real risks. Otherwise, your Toxic Metals Substitution Committee better stop substituting selenium for lead. I heard about you guys!]

JH: Reminded the group that 100 ppm lead standard is mandated by law unless deemed technologically infeasible [Brace for it . . . .]

Commission is not sure there is a real phenomenon of “recall exhaustion”, meaning that the deluge of recalls has numbed consumers. Voluntary recalls are often driven entirely by the CPSC and that the CPSC doesn’t even see the product.

RW: Then again . . . .

Again, Jay seemed the voice of reasonableness. It would be great to return to an era of trust with this agency. But when?

Read more here:
CPSIA – ICPHSO Update on CPSC Hazard ID and Reduction Efforts

CPSIA – ICPHSO Keynote Speech by Inez Tenenbaum

This speech will no doubt be posted on the CPSC website shortly. I will add the link later, please forgive any errors in these notes.

Reviewed 2010 efforts and achievements.

1. New crib standards (“vastly improved”).
2. Baby bath seats and walker rules
3. Cadmium in jewelry and children’s products (held off what might have been a repeat of the lead recall fiasco). Turned back some shipments at the port. Are now screening for cadmium when they find low lead levels in children’s products. Looking at cadmium in substrate in toys and in children’s products generally. Technical staff has made their position on these issues “abundantly clear”.
4. Toy safety improved. Recalls reduced from 172 in 2008 to 50 in 2009 to 44 in 2010. Lead recalls in 2010 were THREE. [RW: Obviously, lead is a huge issue.] This has helped to “restore” consumer confidence in toys.
5. Drywall initiative with HUD. Warnings about sleep positioners and baby slings.

As for 2011,

1. Looking forward to a “civil discussion” of the issues in 2011. The Commissioners go out to lunch together and aren’t like the Sopranos. The Commission is not fractious. 85% of our votes are unanimous. We do disagree from time to time, but “hope to do so without personal or disparaging attacks”.
2. 2010 was the year of the Consumer and 2011 will be “the year to get connected with the CPSC”. [RW: Last year she promised us that 2011 would be the year of enforcement. I guess that lays ahead . . . .]
3. Will implement the Five Year Strategic Plan
4. Wants to use Neal Cohen’s office
5. Launch the new database, assuming the government is “still open”.
6. Continuing new Section 104 rules, Pool Safely initiative, educating consumers about safe sleep.

“Knocking on the door” on being the global leader in consumer product safety. Looking for an “even more rigorous” identification process for product hazards. Will turn hazard identification into injury reduction. Want “safety built into the products intended for our store shelves.”

Touts her agency’s agreement with the Chinese government on toy safety. Sampling and testing in China will help assure safety.

Touts Neal Cohen’s efforts, and the efforts of the CPSC Beijing office. Re Small Business Ombudsman, it is dedicated “touch point” for small business for education. Many manufacturers might not know where to turn for information or to fully implement the new rules. Not trying to take away business from outside counsel. [She really said this.] Wants to facilitate the transfer of knowledge across industries.

[No mention of SBO advocating for small business or playing an active role in RESOLVING rules disputes or problems. Hmmm. A shoulder to cry on?]

Looking at a shifting supply base, bringing other countries into play. We’re looking to prevent a repeat of the China problems.

Re toxic metals, lead and cadmium requirements are intended to create safeguards for the future. Need to expand our vision beyond lead and cadmium. She’s got a nice long list of new things to be scared of. We want to be “leaders” in preventing harm from these metals. Need to avoid exposure from the substrate of toys or other products.

[RW: I think a few more tests will do us ALL a lot of good! I am CRAZY to stick around in this industry.]

Back to new crib standards. Cribs must be replaced by end of 2012 to come into compliance with the new rules. [RW: Stimulus plan!] Cribs compliant with the new rules will be available by June, we hope. Lots new rules in “safe sleep” and other juvenile products.

Database ready to roll in two weeks. Don’t forget to ask CF “more questions” today at 4 PM. ["More" questions?] She respectfully disagrees with objections to the database. Her pledge is that they will educate consumers that the report should be accurate and safety-based. Let’s not let perfect be the enemy of the good. Data warehouse will promote greater efficiency. Consumers will be more “empowered”. If consumers withdraw products while the CPSC is working behind the scenes to issue a recall, that’s a good thing in her view.

[RW: Is it a "good thing" if they withdraw from using products that are safe or are not subject to recall? Hmmm. That question was unaddressed.]

Recounts her advice on how to amend the CPSIA (functional purpose exception, should get the lead out if it’s “practical” to be removed, 100 ppm should be prospective only, and small businesses and small batch manufacturers deserve some relief). Will work with Congress on other changes.

She says, change it but don’t end it. Hmmm. Certainly remains open to making old suggested changes to the law.

Finally, pleased to share that starting on March 1, will launch the Chairman’s Commendation Circle Program. There will be more details about the nomination process. Wants to highlight innovators and those who are working to prevent injuries every day. [Hmmm.]

Have the right team in place, willing to take action against those who don’t follow the law. Forging a new regulatory approach with predictability and consumer confidence. If all of us can be partners in this effort, can build on the progress made in recent years.

RW: This is BY FAR the least threatening speech by Ms. Tenenbaum since she ascended to her chairmanship. Let’s hope this signals a significant shift in tone and direction.

Read more here:
CPSIA – ICPHSO Keynote Speech by Inez Tenenbaum

CPSIA – ICPHSO Database Panel

Cheryl Falvey, Moderator – I am so excited about this panel because I know how much everyone loves the database.

I assume she was joking. Of course, she might have been thinking of the New York Times . . . .

Members of the panel:

• DeWayne Ray, Dep. Dir., Hazard Identification and Reduction, CPSC
• Mark Schoem, Dep. Dir., Office of Compliance
• Melissa Hampshire, Asst. GC, Div of Enforcement and Information, CPSC
• Scott Wolfson, Dir., Information and Public Affairs, CPSC

Won’t accept anonymous submissions but will only share the info if the reporter (“consumer”) checks a box to allow it. Will prosecute false filings. Won’t publish for ten days after sending out the info to the manufacturers. You get the “whole” ten days.

RW: I am feeling all tingly now!

I just received a comment on my blog: “I think the coming government shutdown is good in so many ways.”

CF: First picture submitted to the database was of a baby’s behind.

And I thought it would be of a horse’s behind . . . .

SF: We are a data-driven agency. Where have we typically received our data? DR: We get data electronically from hospitals and buy death certificates. Put up a bizarre slide with arrows, clouds, pointers, illegible type and so on. This apparently outlines where the data comes from and goes. They call this slide the “cartoon”.

I am getting too much material here. . . .

DR: We really this new data warehouse which will bring real value to the CPSC. This is where they get the tools they need to “do the job”.

The description of the database did not incorporate any response to the vigorous and legitimate concerns of industry. Wayne Morris referred to the database as a “blog”. Ahem – CPSC, any reply?

Which reports of harm will be “public-facing”? MH: Many specific requirements before they can move forward with notifying the manufacturer or publish in the database.

MS: Rarely will postings result in a call to a company. There will be a “triage” team to sort through the data looking for serious issues.

What kinds of “product incidents” will be included in the database? DR: We have an internal process for “material inaccuracy”.

What if they identify the wrong manufacturer? MH: It would be so “great” if you register, since you will get immediate notice after we complete our review of the data for meeting minimum manufacturer. We don’t want to identify the wrong manufacturer.

[RW: Most of the time, manufacturers will not have sufficient data to evaluate that information, nor does ten days provide sufficient time to get this work done. Let's not forget that there's a lot to do in running a business. It is not acceptable that this database becomes the top priority of our company. It's just not fair or sensible to make filings in this database a daily emergency. In addition, very often, identification of the product is the least of the worries. What about the substance of the accusation? What happened to "findings of fact" or determinations of responsibility? The database is very likely to become a standard part of litigation strategy. There's a shocker for you!!]

How can manufacturers make comments on the “report of harm”? MH: Manufacturers can make any comment it wants. In addition, you can object to the inclusion of “confidential information”. Can also claim that the filing is “materially inaccurate”.

[RW: The latter two objections are as likely to be successful as an exemption from the "any lead" requirement. What, there are exemptions possible - look at the CPSIA . . . . So far, there are zero exemptions issued in three years. And there will be very few or no legitimate objections that stand up in the database process.]

CF: We rarely if ever receive confidential information from consumers. Todd Stevenson says it has happened twice since 1972. Staff will scrub the information to prevent this, too. Material inaccuracy is defined as false and misleading and so substantial as to materially mislead consumers. Burden of proof is on the manufacturer to supply EVIDENCE to support their claim of materially inaccuracy. The issue they will be most concerned about is materially inaccuracy relating to hazards. The agency EXPECTS manufacturers to call consumers in those ten days to figure out whether the claim is legitimate.

CF: We have received so many pictures during the soft boot of the database that we need new servers. It’s pretty astounding.

[RW: OMG. This is going to be a feeding frenzy when Scott Wolfson puts his machinery into motion. Why do we need the government to play this role in the market? How are we going to stay in business when the government is encouraging litigation and brand destruction???]

CF: The database has a disclaimer that the agency can’t verify or stand behind the accuracy of the database. We have no opinion on “causation”.

RW: We are SOOOO screwed.

CF: Mentioned the DryMax diaper crisis that took a full year to resolve. [Under the database, every single claim would appear for a year until it emerges that each and every one was false and wrong. Too bad for P&G, I guess.]

RW: So so so screwed.

MH: Discussed link between the database filings and Section 6(b) disclosures. Ditto for FOIA process. [Based on my experience, FOIA couldn't take much of their time, since finishing off FOIA responses is . . . not a priority.]

Tell us about “education and outreach” about the database. SW: This is a tool for consumers. It’s all about the back end.

RW: Now you know where you’ll be getting it.

SW: It is extremely important to sign up for the portal. “Snail mail” won’t work “as effectively”. Think of the ten day window. 700 companies have signed up but it should be in the thousands.

RW: Maybe Aston Kutcher can help!

SW: On the consumer side, Hotline should take fewer calls. Watns to see the reports shift to the database. Will use the Twitter platform to publicize the database, plus blogs. Will continnue to promote the database because they see it as a benefit to consumers. Expects the database to start filling in March but it may as long as a month to have enough “data” to make the searching function to become “useful”.

RW: Plaintiff lawyers, take note! Don’t worry, they have . . . .

No questions taken. Apparently there’s nothing to discuss. Maybe later . . . . Thanks, Cheryl! We get it.

Read more here:
CPSIA – ICPHSO Database Panel

CPSIA – New York Times Pleads for the Database

Leftist newspaper The New York Times published a passionate call for implementation of the database today. Perhaps they just have the same malady that my wife accuses me of, namely “selective hearing”. Selective hearing is a scourge!

Says the NYT: “The new Republican-led House seems determined to roll back those protections. As part of their slash-and-burn continuing resolution, they cut all the financing — some $3 million this year — for a core provision of the safety bill: a database where consumers could report product hazards and the public could check products before buying them.”

They carry on to sniff: “Arguments against all of these provisions are part of a standard antiregulation litany. Businesses warn that the hazard database would open the door to bogus charges and lawsuits. They claim that third-party testing of children’s products is proving to be too costly and that some should not be tested at all for things like lead because children are unlikely to eat them. The concern about frivolous lawsuits is a predictable canard.”

It’s a “canard”, guys. How dare you!

Wouldn’t it be great if the Times actually listened. Instead, they are just a mouthpiece for the neurotics: “And there is a lot of lead out there. Since the new law has passed, the Consumer Product Safety Commission has issued 26 recalls because of lead paint in toys . . . . The recall in 2007 of millions of hazardous children’s products imported from China proved that a gutted safety commission couldn’t do its job. Why would anyone want to make that same mistake again?”

Throwing us a bone, the Times allows that it might be okay to change the law . . . a little bit: “Some provisions of the safety law could be tweaked. For instance, there may be ways to help the smallest of toy makers gain access to low-cost lead testing. There might be a way to exempt products from testing if they very clearly do not pose a lead-related hazard.”

This kind of reporting or opining from the Times makes it clear that the “war” is not nearly over. There are still substantial pockets of misinformation, and sadly, the politicized atmosphere surrounding the issue of “safety” remains profound. For a shrinking industry like newspapers, there is little choice but to find or create issues that sell papers. I don’t think the Times feels its franchise will be served by noting that things are better or assuring people that the manufacturers are making legitimate criticisms pf this cherished law. Who needs a paper to tell us we’re okay?

The beat goes on.

Read more here:
CPSIA – New York Times Pleads for the Database

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