This month, our recall roundup includes an update on the US Senate Committee on Commerce, Science, and Transportation’s investigation into the CPSC’s data breach; guidance on the use of inclined infant sleep products; a warning about liquid nicotine; and information on 18 product recalls.
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With Acting Chairman Ann Marie Buerkle’s earlier announcement that she will leave the CPSC this fall, this month the commissioners elected Commissioner Robert Adler as the new acting chairman. Adler has been affiliated with the CPSC for more than 40 years. He has served as a commissioner since 2009 and previously served as the acting chairman from December 2013 through July 2014.
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This month serves as a reminder to manufacturers, distributors, retailers and importers that consumer products carry strong liability risks when they pose risks of serious injury or death. Steps should be taken to reduce that liability, including the issuance of alerts and recalls to remove the products from the stream of commerce.
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With summer in full swing, several U.S. senators have taken a public step to focus the CPSC’s efforts on dangers at the beach. Airborne umbrellas have become a serious hazard to beachgoers. In fact, CPSC data indicates that there have been over 31,000 beach umbrella-related injuries from 2008 to 2017, including the death of a vacationer after she was struck in the torso and killed by a rogue umbrella in Virginia Beach in 2016. In an unusual move, four senators recently issued a letter urging the CPSC to be more proactive about addressing the dangers posed by beach umbrellas. The senators requested more detailed information about umbrella-related injuries, asked about safety standards to prevent such injuries, and encouraged the creation of a public safety campaign to educate the public about the dangers of beach umbrellas.
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The balance of power at the CPSC will shift after Acting Chairman Ann Marie Buerkle’s surprising announcement that she will leave the CPSC this fall. Buerkle has served as a CPSC Commissioner for six years and the Acting Chairman of the agency for almost half that time. President Trump has nominated Buerkle to be the permanent Chairman three times (2017, 2018, and 2019), but each time the Senate failed to vote on her nomination. Buerkle announced she is withdrawing her 2019 nomination to become the permanent Chairman and to serve an additional seven-year term. She will continue as Acting Chairman until September 30 and will complete the remainder of her term as Commissioner until October 27. She says that afterward, she will “pursue new opportunities that will allow me to continue my life’s work of advocacy and public service as well as spend more time with my six children and eighteen grandchildren.”
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Court rulings interpreting the Consumer Product Safety Act (CSPA) are rare because parties subject to the act typically resolve any issues directly with the CPSC through administrative actions or settlements. This month, the Seventh Circuit issued such a rare ruling, which makes it more difficult for manufacturers, distributors or retailers to argue the statute of limitations has run on failure-to-report claims.
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The CPSC this month issued notices to multiple consumer product companies explaining that the CPSC “recently discovered that nonpublic manufacturer information identifying your company by name along with product model name and/or model number was released in error to the public without following the procedures of 15 U.S.C. § 2055,” which provides procedures for and restrictions on the Commission’s public disclosure of manufacturer and product-specific information. The notice offers few details about the unauthorized disclosure’s nature or scope, raising questions about whether the released data comes from inspections, product safety investigations, recalls, consumer safety complaints or other possibly confidential or commercially sensitive information. This kind of disclosure may have a chilling effect going forward on the candor encouraged between the CPSC and regulated companies by Section 6(b) of the Consumer Product Safety Act.
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The U.S. Department of Justice announced major news in the world of consumer products this month. A federal grand jury recently indicted two corporate executives for their roles in an alleged scheme involving residential dehumidifiers. The executives were charged with conspiracy to commit wire fraud, conspiracy to defraud the CPSC, and failure to furnish timely information under the Consumer Product Safety Act. This month also confirmed the CPSC’s continued focus on off-road vehicles.
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With the partial federal government shutdown over, the CPSC appears to be quickly returning to normal—it issued 18 recalls in this month. The agency also took an unusual and noteworthy step by issuing a stern warning about clothing storage units.
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The partial federal government shutdown forced the U.S. Consumer Product Safety Commission (“CPSC” or “Commission”) along with other agencies to close for 35 days. In fact, the last recall on the Commission’s website is dated December 20, 2018—two days before the unprecedented shutdown began.
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